Walther v. Null

• Citation: 233 Mo. 104,134 S.W. 993
• Parties: WALTHER v. NULL.
• Decision Date: 09 February 1911
• Court: United States State Supreme Court of Missouri

134 S.W. 993

233 Mo. 104

WALTHER v. NULL.

Supreme Court of Missouri.

February 9, 1911.

On Motion to Modify Judgment, March 2, 1911.

1. APPEAL AND ERROR (§ 893) — SUIT IN EQUITY—REVIEW.

A suit in equity is tried anew on appeal; and the question on appeal is whether the chancellor on the legal evidence did equity.

2. APPEAL AND ERROR (§ 1071)—HARMLESS ERROR — FAILURE TO MAKE FINDINGS OF FACT AND CONCLUSIONS OF LAW.

The failure of the trial court in a suit in equity to make findings of fact and conclusions of law is not prejudicial to the party demanding the same, for they are merely advisory to the court on appeal.

3. TRIAL (§ 394) — APPEAL AND ERROR (§ 1010) —FINDINGS—CONCLUSIONS—STATUTES.

Rev. St. 1909, § 1972, requiring the court on request to make findings of fact separately from the conclusions of law, applies only to actions at law, and the findings are in the nature of a special verdict which may not be interfered with on appeal, where there is substantial evidence to support them.

4. APPEAL AND ERROR (§ 1047)—HARMLESS ERROR—ERRONEOUS RULINGS ON EVIDENCE.

In a suit in equity, rulings on evidence are of little or no controlling force on appeal as a general rule, for improper evidence received may be rejected by the court on appeal, and proper evidence offered and excluded and preserved in the record may be considered by the court on appeal.

5. EXECUTORS AND ADMINISTRATORS (§ 241)— ALLOWANCE OF CLAIM — CONCLUSIVENESS — MANNER OF ATTACKING.

A judgment of the probate court allowing a demand against a decedent's estate is conclusive except as against a direct attack by bill in equity or by a proceeding under Rev. St. 1909, § 220, authorizing a proceeding for the vacation of improper allowances against decedents' estates.

6. JUDGMENT (§ 445) — DIRECT ATTACK — FRAUD.

Fraud justifying the setting aside of a judgment on direct attack is fraud arising on extrinsic and collateral matters, and not on the very issues presented in the pleadings, and passed on at the trial.

7. EXECUTORS AND ADMINISTRATORS (§ 238)— JUDGMENT ALLOWING CLAIMS — VACATION — REMEDY.

Rev. St. 1909, § 220, authorizing proceedings within four months after the allowance of a demand against a decedent's estate for the vacation of the allowance, and the trial of the matter anew, does not oust equity of jurisdiction to set aside a judgment allowing a demand on the ground of fraud.

8. FRAUDULENT CONVEYANCES (§ 8) — ACTS CONSTITUTING FRAUD.

Where a conveyance by a grantor operated as a fraud on an existing creditor subsequently obtaining a judgment establishing after the grantor's death his demand, and the grantee knew of the creditor's demand and accepted without pay at the time a deed reciting a false consideration, and the arrangement by which the grantee should support the grantor was kept a family secret and withheld from the creditor, and the grantee paid out nothing either for support or for repairs on the premises, the deed was fraudulent as against the creditor.

9. FRAUDULENT CONVEYANCES (§ 80)—ACTS CONSTITUTING FRAUD.

An agreement for future support is not a sufficient consideration to support a conveyance as against existing creditors of the grantor; since, to uphold such a conveyance, an owner

might take his property from his creditors, and subject it to his own use.

10. EQUITY (§ 67)—"LACHES."

"Laches" is an equitable doctrine applied independently of the statute of limitations to assist in reaching an equitable result.

11. FRAUDULENT CONVEYANCES (§ 249)—SUIT TO SET ASIDE—LACHES.

A son-in-law who fails to press his claim against his father-in-law in the lifetime of the latter, and who allows a grandchild of the father-in-law to hold title for four years under a deed whereby the father-in-law conveyed his entire property, is not guilty of laches precluding a suit to set aside the conveyance, as fraudulent as against creditors, especially where the grandchild was not actually injured by the delay.

Woodson, J., dissenting.

In Banc. Appeal from Circuit Court, Jefferson County; Jos. J. Williams, Judge.

Action by Ferd Walther against William H. Null, Jr. From a judgment for defendant, plaintiff appeals. Reversed and remanded.

Kleinschmidt & Reppy, for appellant. Byrns & Bean, for respondent.

LAMM, J.

From a decree dismissing his creditors' bill, plaintiff on due steps comes up by appeal. The cause, once submitted in division, came into banc because the Brethren disagreed.

Shortly, the case on the pleadings is this: The petition is in the nature of a creditor's bill. It charges that one John W. Null in 1901, then the owner of a farm in Jefferson county, Mo., of 362 acres, and then indebted to plaintiff on a promissory note for $478.42, conveyed said farm to defendant with the intent to hinder, delay, and defraud his creditors, among them plaintiff, by a deed put of that the express consideration in the deed, $10,000, was false and feigned; that no consideration passed, but the conveyance was voluntary; that thereby the grantor was made wholly insolvent and stripped of ability to pay his debts; that grantor died in 1905, and his estate was in charge of the public administrator and in process of administration; that he left no landed estate, and was so poor in worldly goods that his chattels were insufficient to pay funeral expenses and costs of administration; that plaintiff's said claim had been allowed by the probate court of Jefferson county for $744.10, and thereby merged into a judgment for that sum and placed in the fifth class of demands; and that, unless said real estate can be reached and subjected to such judgment, it will remain wholly unpaid. Wherefore, a decree was prayed that the conveyance be set aside as void through fraud and be certified to the probate court in order that the land might be dealt with there as a debt-paying asset of decedent's estate. Defendant answered, admitting the execution of the note and deed, denying all other allegations, averring, furthermore, that he bought the land in the ordinary course of business in good faith for full value, without any knowledge of the existence of a debt to plaintiff; that, if there ever was a debt, it had long since been paid and satisfied; that, moreover, it was barred by the statute of limitations; that, if any credits appear on the note, they had been put there for the purpose of keeping it alive, and were not made by decedent; that defendant, in possession of the land ever since his deed in 1901, had been to a large outlay in making permanent improvements; that plaintiff knew of defendant's purchase and acquiesced in the sale and transfer to him, in that grantor, after the transfer, lived in the village of Hematite (a village hard by the land) until his death; that plaintiff was his son-in-law and from the time of the transfer until his death made no claim on account of said note until grantor's death, either to him or defendant, nor did he ever claim or pretend to have a charge on or claim against said land until the death of grantor. The cause was heard below at the May term, 1906, of the Jefferson circuit court, and the chancellor took time to consider. At the January term, 1907, he refused to make a finding of fact and state his conclusions of law on the parol request of plaintiff, but entered a bald judgment dismissing the bill, plaintiff saving his exceptions. Presently, on the same day, plaintiff filed a written request for a finding of facts and conclusions of law, stated separately, which request was refused and plaintiff excepted. Error is assigned, first, on the foregoing rulings; and, second, on the decree, in that it was for defendant, and not for plaintiff.

1. There is no substance in the first assignment. The cause, being in equity, is here for consideration anew. Therefore the controlling question is, Did the chancellor, on the legal evidence in the record, seek equity and do it?—not whether he made a finding of fact. If he had made a finding and incorporated it into the record, its office would have been merely advisory. It would have been put as to us on the foot of a finding of a jury to him if he had asked one's advice on an issue of fact in an equity case. So runs the law. Pitts v. Pitts, 201 Mo. 356, 100 S. W. 1047. How could plaintiff be hurt on the merits ultimately by a failure of the court below to give the upper court mere advice (whether good or bad) by way of a finding of fact and conclusions of law? It has been soundly ruled that the statute requiring a written finding of fact and conclusions of law (Rev. St. 1909, § 1972) on request pertains to lawsuits, and not to equity cases pure and simple. Fitzpatrick v. Weber, 168 Mo., loc. cit. 572, 68 S. W. 913. This ruling is grounded on the theory that in a lawsuit proper a finding of fact is of substance, it fills a due office, viz., it is in the nature of a special verdict which we may not interfere with on appeal if there be substantial evidence to support it. By and large the point has been considered newly and fully by our learned Brother Graves in a late case (Miller v. McCaleb, 208 Mo. 572, 106 S. W. 655 et seq.), and the above doctrine again promulgated on a review of the leading precedents. The student in jurisprudence, curious in that behalf, may find there such learning on the matter that it would seem to attempt to add anything of value would be to carry coal to Newcastle or owls to Athens. We rule the point against plaintiff.

2. Of the second assignment. Before disposing of the main question—that is, whether the decree did equity—there is a preliminary matter material to a statement of the facts (which this assignment necessarily seeks) to which we pass.

(a) The answer, inter alia, pleads matters going to the bona fides of plaintiff's debt. It charges that the debt was outlawed. There being certain life giving credits on the note, it alleges, in effect, that those credits were put there for a sinister purpose to toll the statute of limitations, and...