Cox v. Cox

91 Mo. 71 | Mo. | 1886

Ray, J.

The petition, in this case, is in two counts, the general nature and object of which is the same, which is, to subject the property described in the first count, and spoken of, for brevity, as the Boonville street property, and the property described in the second count, and, for the same reason, spoken of as the Jefferson street property, both in Springfield, Missouri, and held in the name of the defendant, Sarah Cox, to the payment and satisfaction of a certain judgment for debt and damages, obtained by plaintiff against the defendant, Thomas IT. Cox, who is the husband of his said co-defendant, Sarah. The petition charges, in each of said counts, that the defendant, Thomas Cox, being indebted to divers persons, including plaintiff, in sundry amounts, at the date of the purchase of the said two pieces of property, bought and paid for the same with his own money, but that, for the purpose of hindering and delaying his creditors, including plaintiff, and of defrauding plaintiff out of his debt, procured the deeds therefor to be made out to, and in the name of, his said wife and co-defendant, and asks that the title, legal and equitable, be divested out of said defendants, and vested in plaintiff. Tlie answer of defendant, Thomas Cox, is a general denial, except as to Ms indebtedness. The answer of defendant, Sarah, to both counts denies the material allegations in the” petition, and sets- up purchase of- the property by her with her own individual money, received and inherited from her father’s estate, and money arising from rents and profits of real estate inherited from her father. During the trial, the court called and submitted to a jury, as special issues, whether the consideration paid Robberson for the Boonville street property, and that paid Sweitzer for the Jefferson street property, was the money of Thomas H. Cox, or of the wife, Sarah Cox, but, upon the conclusion of the testimony, adduced in the plaintiff’s behalf, directed the jury to find the issues for defendant, and rendered its judgment, dismissing plaintiff ’ s bill.

No objection has been urged, or pointed out, to the sufficiency of the evidence to support the judgment, so far as the Boonville street property is concerned ; and this part of plaintiff’s claim is, we think, practically abandoned in this court. As to the Jefferson street property, it appears, by the testimony of defendant, Thomas H. Cox, sworn at plaintiff’s instance, that the money used in the purchase thereof was money belonging to the wife, Sarah E. Cox, and received and inherited by her from her father’s estate, and derived more immediately from the sale of her real estate to Robber-son. It further appears, from his testimony, and from receipts, entries, or memoranda, made at the time the money came to his hands, that he took and held possession thereof, not for himself by virtue of his marital rights, but in trust, and to the use and benefit of his wife. Hammons v. Renfro, 84 Mo. 342. One of said entries, or memoranda, made by him in the book produced at the trial, was as follows : “Thos. H. Cox received, in trust, from Mrs. Sarah E. Cox, in current funds, two. hundred and fifty dollars, February 13, 1878.” Another was: “ Thos. H.. Cox received from his wife, Sarah E. Cox, in trust, February 27, 1873, six hundred and seventy five dollars.” Similar entries and declarations of trust were made as to other. amounts. Both of the sums above specified were thus received, during the first month after his intermarriage with said Sarah Cox, and the first payment of the two hundred dollars, on the purchase price, which was eight hundred dollars, was made by him, out of the said sum of two hundred and fifty dollars, received from her, in trust, as aforesaid, and the second and final payment was made by the wife to Clough, the agent of said Sweitzer, out of the said sum of six hundred and seventy-five dollars.

The means, which the wife derived and inherited from her father’s-estate, and from the sale of the land to Robberson, and from the rentals of the real estate, exceeded in amount the sums required for the purchase of said lot, and the construction of the dwelling house, and the entire outlay in this behalf. As to the two thousand nine hundred and sixty dollars, received by defendant, Thomas. H. Cox, from the sale of the interest in the stock of goods to said Wengler, it is sufficient to say that it was fully and fairly accounted for in his testimony, which shows that the whole amount was applied on his debts, one thousand being paid, as was admitted, to plaintiff, and the rest to merchants in St. Louis and New York, whose receipts were produced.

The case, manifestly, turned largely, and, perhaps, mainly, upon the evidence of said defendant, Thomas H. Cox, and upon the credit given his testimony. His evidence was, it seems, indispensable to the plaintiff, who, in making out his case, was, it seems, obliged to call him in his own behalf. True, he was examined by plaintiff, in the first instance, only as to the payment made at the time the title bond was taken, but this involved, at least in part, the material and vital questions and issues in' the case. The fact thus shown, or attempted to be shown, was, that this payment of a part of the purchase money was made by the witness, and this was the main object of the examination, the amount of the payment,' which was two hundred dollars, being of secondary consideration and importance. The examination as to this by plaintiff invited and properly led to the cross-examination, as to whether the part of the purchase money, thus paid, was his own or money belonging to the wife, and how and in what capacity he held the same. Upon reexamination, the witness was taken over the whole subject, as to whose money it was and how derived and held, and fully questioned as to his financial condition and resources, and the application and use made of his own funds, with the results previously indicated. It is conceded that his testimony, if true, shows that the purchase money was the wife’s and not his, or under his control, except in trust for the uses mentioned, and even if the rule, that a party calling a witness vouches for his credibility, be not applicable, in strictness, under these circumstances, his credibility could, nevertheless, be best ■determined by the chancellor having the witness present in person before him at the time.

We see no controlling reason in the case requiring us to depart from our established rule of deferring somewhat to. the finding of the chancellor in cases of this sort. Plaintiff, manifestly, was not prejudiced by the direction given the jury to find the issues for the defendant. Virtually, this was á finding to the same effect by the chancellor, of his own motion, and such as he was authorized to make. Snell v. Harrison, 83 Mo. 657; Bevin v. Powell, 83 Mo. 365. In Snell v. Harrison, supra, a finding and judgment by the chancellor, non obstante veredicto, was referred to and approved by this court.

We perceive no error in the record, calling for reversal or modification of the'judgment, and we, therefore, affirm the same.

All concur.