Bank of Pike County v. Murray

| Mo. | Oct 15, 1885

Henky, C. J.

By this action, plaintiff seeks to subject to the payment of a judgment in its favor against Murray, a parcel of ground in the city of Louisiana, the legal title .to which is held by Luce, who purchased it at a sale by a trustee to whom it had been conveyed by one Van Horn to secure a debt of eighteen’ thousand dollars, .owing by him to Murray, evidenced by promissory notes, Avhich it is alleged were by Murray assigned to Luce in fraud of his creditors. On a hearing of the cause the bill was dismissed, and plaintiff has prosecuted this appeal. The judgment in favor of plaintiff against Murray was gendered in December, 1876, for $4,744.95, and was the balance of an indebtedness of about fifteen' thousand dollars of the firm of Whitney, Lonergan & Co., of which Murray was a member. The assignment of the Yan Horn notes by Murray to Luce was made ten days before that judgment was rendered, and the sale of dhe block Avas made under the deed of trust in October, 1878, and purchased by Murray for Luce, his father-in-'law. The evidence in the cause shows that Murray was largely indebted to Luce at the time of this assignment, and was, in effect, insolvent, owing to others considerable amounts.

The assignment of the notes against. Yan Hoi;n was .made in November, 1876. Murray had previously conveyed to Luce a store house, and one-half of mill property in Louisiana, for the consideration of five thousand ■ dollars, and on the tenth of December, 1876, six hundred acres of land in Harrison county for thirteen hundred and fifty "dollars, and three hundred and eighty acres in Vernon county for one thousand dollars. January 5, 1875, Murray sold some properly in Chicago to Luce for eight thousand dollars, and an interest in property in Quincy at four thousand dollars, and other property which, estimated at prices placed upon it by plaintiff’s attorney in his argument, aggregated $36,-111.00, which was about ten thousand dollars in excess of Murray’s indebtedness to Luce, as testified to by Luce and Murray, and not contradicted, but corroborated to a considerable extent by the records of judgment in Luce’s favor against Murray, and judgments against Murray in favor of other parties, assigned to Luce. The contention of appellant is, that the property conveyed by Murray to Luce was worth more than Luce paid for it, and for the purpose of showing that portions of it were sold to Luce at greatly less than their value, read from the testimony of Murray, in a cause theretofore pending in the Macon circuit court between Van' Horn and Murray, involving the question of Murray’s solvency, in which Murray placed the value of the land • in Harrison county at three thousand dollars, and that in . Vernon county at about three thousand and five hundred ' dollars, which he sold to Luce, the one tract for thirteen hundred and fifty dollars, and the other for one thous- and dollars. The deposition was taken about two years before this cause was tried. No other testimony was • offered by - plaintiff to show that the land was worth more than the price paid by Luce, or to contradict the . testimony of Murray that he had had the lands in the' ..market for some time, and that he could get no more for ;them than Luce paid him. As to-the other .property, witnesses differed as to its value, some placing each, parcel at one-half the value testified to by others.

A creditor receiving from his debtor property in payment of his debt, will avail himself of the opportunity growing out of the necessities of the debtor to get it at the lowest possible price. ' .There is no such fixed value upon the character of property taken by Luce, as to enable a court or jury to determine, with anything like mathematical exactness, what the creditor has received in value, and while what the debtor may have said or sworn it was worth two years before may tend to prove a fraudulent intent on his part in making-the conveyance, it is by no means conclusive on the purchaser as to its value at the date of the conveyance. And in considering the testimony of Murray, given in the case between him and Yan Horn, the fact is not to be overlooked that he was deeply concerned to establish his solvency, nor is it to be forgotten that men nearly always overvalue their own possessions. In taking property in different parcels, in different localities and states, in payment of a bona fide debt due him, not one of a hundred creditors would accept it at anything near its actual cash value, and if such sales are to be set aside-as fraudulent because a full cash value was not allowed the debtor for his property, but few of such transactions, would be unimpeachable. I do not propose, in this, opinion, to notice all the points made by the appellant’s attorney, in his exceedingly able oral argument before us; but they have been duly considered, and a careful examination of the testimony forbids our interference-with the judgment of the circuit court. The judge who-tried the cause was more favorably situated than we, to determine the merits of this controversy on the testimony, and while we might think that the testimony would have warranted a different judgment, some deference is due to the opinion of the trial judge before whom most of the witnesses personally appeared and testified, and to whom they were probably personally known. In all such cases we decline to interfere with the juclgmenl unless it is manifest that it should have been for the ■other party. The judgment is affirmed.