| Mo. | Jul 1, 1892
This suit is in the nature of a -creditors’ bill to charge certain real estate held in the caame of defendant, Ella R. Tull, with the payment of certain judgments in favor of plaintiffs and against 'Dabney L. Tull, husband of said Ella.
It is charged in the petition that on the twenty-first day of January, 1878, plaintiffs, John D. Crook, John C. Paxton and Washington Hudson, as partners, •obtained two judgments against Dabney L. Tull for $25 and $61.65 respectively and costs; that said judgments were rendered upon notes bearing interest •at ten per cent, per annum; that executions on said judgments were issued and returned nulla bona; that -the judgments were revived February 23, 1883, and transcripts filed in the office of the circuit clerk of the county, April 19, 1883, and duly recorded; that exe•cutions on these transcript judgments were also issued, but no property was found in the name of the defendant therein upon which to levy the same; that after contracting the said debts said defendant, Dabney L, Tull, for the purpose of hindering,' delaying and -defrauding his creditors, caused all his interest in both .real and personal estate, of which he was possessed, to
It was charged that she held in that manner several hundred acres of land, 'and a large number of cattle, horses, sheep and other personal property. The prayer was that the said lands be subjected to the payment of these judgments. The answer was a general denial.
Before the trial, defendant, Dabney L. Tull, died. There was no revival of the cause, and the case was tried at the next term against the wife alone.
' After finding the correctness of the judgments and the amounts due thereon, the court found that, after contracting the indebtedness with plaintiff, the said Dabney L. Tull transferred or caused to be transferred to defendant, his wife, all his land — over six hundred acres, and all his personal property; that the husband had the full control and management of the estate; that his labor and skill were all devoted to the care and management of the same, and that he had no property in his own name out of which the debt could be made.
The court found the facts as charged in the petition, and it was adjudged that the said judgments, with interest and costs as found, should constitute a lien and charge on said land, and that the same should be sold, etc. Prom this judgment defendant appealed.
1 I. It is objected by defendant, in the first place, that under section 2201 of the statute no trial could be had until the third term after the death of Dabney L. Tull, unless the cgnse was first revived in the name of his administrator, and that, therefore, the trial was premature. It is undoubtedly true, as contended, that no. suit can abate in case of the death of a party thereto until the third term after suggestion of the death, and •a trial before that time, without a revival, could not
The husband was only necessary, as a party, originally, in order to conform to the statute then in force, requiring him to be joined with his wife in a suit for or against her. Revised Statutes, 1879, sec. 3468. We do not think there was error in proceeding against the wife alone.
II. The record shows that Washington Hudson, one of the plaintiffs and a copartner with the other plaintiffs, also died pending the suit and prior to the trial and judgment. The action proceeded after his death in the name of the survivors without objection by defendant. It is, in this court, objected for the first time, that the court erred in thus proceeding, and for that reason the judgment should be reversed. We do not agree to this objection for two reasons. It is the settled rule of practice in this state that an objection on account of defects of parties, unless made in an appropriate • manner before the trial, will be taken as waived by the opposite party. Dunn v. Railroad, 68 Mo. 269; Butler v. Lawson, 72 Mo. 227" court="Mo." date_filed="1880-10-15" href="https://app.midpage.ai/document/butler-v-lawson-8006579?utm_source=webapp" opinion_id="8006579">72 Mo. 227.
Again it does not appear from the record that the administrator of the deceased partner had qualified as administrator of the partnership estate, and unless that was done the surviving partners had the right to proceed alone in the collection of the debts and settlement of the affairs of the partnership. Bredow v. Savings
III. John D. Crook, one of the plaintiffs, was examined as a witness in his own behalf, and was permitted to testify, over the objection of defendant, that the debts upon which the judgments against Dabney L. Tull were rendered were created in the years 1872 and 1874 respectively. The objection was to the competency of the witness to testify to these facts, the said Tull being dead.
The case was in equity and was tried by the court without jury issues. In such case no harm can result from the admission of the evidence in the trial court, as it can be disregarded by this court, if deemed inadmissible. Powell v. Adams, 98 Mo. 601.
The evidence of this witness was only significant in showing that the property was conveyed to the wife subsequent to contracting the debts by the husband. This was unquestionably a material fact to be proved by plaintiff; otherwise the gift to the wife, if honestly made, would be good. The judgments against Dabney L. Tull recite the dates of the notes sued upon to have been the fourth day of March, 1874, and the nineteenth day of January, 1876, respectively. The notes, which were offered in evidence, showed the same facts. The testimony, to which objection is made, fixed the dates of the debts for which these notes were given about two
IY. We think the judgment of the circuit court abundantly supported by the evidence. The presumption of law is that property acquired by the wife during coverture was paid for with the means of the husband. Sloan v. Torry, 78 Mo. 625, and authorities cited. Defendant offered no evidence to rebut that presumption.
Y. Objection is made that the amount found due plaintiff upon the judgment' was excessive; that interest on the judgments should have been calculated at six per cent., simple interest; and the costs, which accrued on these suits and judgments, should not have been allowed, for the reason that there was no evidence that it had been paid by the plaintiffs. It is not insisted that the judgment is excessive, if interest was properly calculated at ten per cent., and if the costs, which accrued in those suits, are properly, chargeable on this judgment.
The judgment of the justice shows that each of the notes sued upon bore interest at ten per cent, per annum, and the one upon which judgment for $61.65 was rendered bore compound interest. Section 2725, Revised Statutes, 1879, provides that all money judgments shall bear six-per-cent, interest, except those
The judgments of the justice were for debt and •costs, and the latter were properly taxed for payment in favor of the officer entitled to them, if they were never paid by plaintiffs.
We find no error affecting the merits of the case. -Judgment affirmed.