*1 754
thоugh error giving instructions, committed was error parties on behalf and, of both v. therefore not reversible. [Huss Bakery Co., 44; 210 244 Mo. l. c. Everhart v. Mo. l. c. Bryson, 521.] fairly presented jury, As the case was to the the verdict is bind- ing judgment on us. The should affirmed, therefore be which is ac- cordingly All done. concur.
Farmers Bank Appellant, v. Ross M. Higginsville, et al. (2d) S. W. 880. July One,
Division 1928. *2 Ristine appellant. c(?
Tajous
& Aull Aull Nick M. Bradley respondents. *6 SEDDON, 1924, C. Suit in equity, commenced September 19, on
in the Circuit Lafayette Court of County, to set deeds, aside two conveying to approximately title farming acres of situate Lafayette in County, upon alleged Missouri, ground that said conveyances deeds or were made without consideration and for the purpose bank, hindering, of delaying, defrauding plaintiff which is, and conveyances was at said the time a made, general were defendants, of M. Handly Myra unsecured creditor Ross E. Handly, wife, grantors husband and are who of one of said conveyances, plaintiff’s against in the of lawful collection demands Handly defendants, said defendants. The other than said M. Ross Myra E. who Iiandly, James A. is an uncle are of said Myra Littlejohn Handly, wife, Mary E. T. John his L. Little- john, Johnson, N. E. and Connecticut Mutual Insurance Com- Life being, respective- pany, a last defendants corporation, the two-named existing ly, beneficiary of an unsatisfied and trustee and the against part record a trust, deed of which an encumbrance controversy. changed action was the land in The venue County, trial of the action resulted Ray where Circuit Court of in finding- favor of the de- judgment, the issues in a decree bill, ordering petition, for plaintiff’s fendants, the dismissal want, рlaintiff. against un- After taxing equity, the costs and' plaintiff al- action, trial successfully moving for a new nisi. decree appeal from the an to this court lowed M. substance, Ross petition that defendant alleges, in plaintiff indebted to had become a been customer had notes, promissory various his money to him plaintiff for loaned that, No- judgment; subsequently reduced were which notes against defendant judgment obtained plaintiff 10. vember County, Lafayette Handly; Court the Circuit M. Ross against judgment 1924, plaintiff obtained $4554.51, June and on Myra Circuit Handly, in the E. Handly and M. Ross defendants aid of $3143.90; executions County, Lafaye'tte Court that, unsatisfied; time judgments returned have been said nlaintiff, indebted became M. defendant Ross of land 325 acres possession, simple, and in fee owner crops there- growing stock together live controversy, with certain certain question encumbered real estate the. on: that in- plaintiff 5, 1923, after October of trust: deeds in- said Handly. recover M. defendant si suit ituied
761. debtodness, and defendant James A. conspired together to cheat defraud plaintiff, and said with the purpose and intent to hinder, delay, or plaintiff defraud and other creditors of said of their lawful claims and demands, made, executed and delivered to defendant A. Greer, a certain war- ranty deed, pretended for a false and consideration of one dollar and *7 other but in fact consideration, any without consideration, purport- ing convey all of the land in controversy to said defendant James Greer; A. that defendant Greer was fully cognizant, at the time of suсh conveyance, of purpose the fraudulent and intent of said Handly; defendant Greer, 29, said October executed pretended and a purporting convey part delivered a controversy land Littlejohn Mary to defendants John T. L. and consideration; pretended Littlejohn, for a wife, husband and conveyance Littlejohn from M. Hand- knew that the Ross defendants ly A. fraudulent void and to James Greer was without considera- and accepted the fraud deed of con- tion, participated said and and knowledge its fraudu- veyance to them with from James Greer prays that said deeds character; wherefore, plaintiff taint and lent and void conveyances adjudged be fraudulent and be io naught held; and and for set aside plaintiff; that the same be demands For and its claims plaintiff property real a lien on said have sold to be ordered property be real aforesaid, that the said and against defend- judgments and its said demands the satisfaction of Handly. Myra Handly E. ants, M. and Ross Myra M. E. Ross and Defendants James admitting joint answer, M. indebtedness Greer filed denying conveyance plaintiff, that the sale and said consideration, Greer was without and the answer James land the sale and paid, Greer consideration of con- that said avers estate, $45,000, and that said sale the sum of veyance said real after said was made a bona-fide transaction and conveyance was and plaintiff for said land to Handly had to sell offered and said Greer - land b proposal that, if the said amount, same and de- its claim might сollect sum, plaintiff than worth more Greer and that defendants denies The answer mand therefrom. plain- and defraud together to cheat conspired combined de- delay, hinder, the intent purpose tiff, or for Handly. of said creditors fraud the joint Littlejohn filed Mary L. Littlejohn and T. John Defendants alleg- petition, and answer, averments denying generally $23,150 for price consideration ing a fair payment of them purchased controversy, acres of 159% A. good was made payment purchase that said Greer, fa.illi and for value, without any notice of fraudulent intention part on the of their co-defendants, and without notice, or knowledge, any fact which put would them on inquiry.
The answer of defendants E. N. Johnson and Connecticut Mutual Life Company general Insurance is a denial. The reply general is a special denial of separate the averments of the answers of de- fendants Handly, Littlejohn.
The evidence tends to show that defendant Eoss M. Handly had been a of plaintiff customer years for several prior year to the 1923, and, during period such time, he had plain- borrowed from tiff bank money, various sums of in evidence of which loans Eoss M. plaintiff had executed and delivered to the his several In promissory early part notes. he was indebted to plaintiff bank for loans evidenced his several promissory notes, $1300, $200, as follows: one note for one for for $1.00, one one $3200, $1000, being and one note for the latter note bjr a secured stock, which chattel certain live chattel mortgage, at request (according Handly’s testimony to the of the cashier of *8 plaintiff bank) plaintiff for had not filed record. first The three aggregating $1600, appear aforementioned, to have been notes by paid by 1923, plain- M. and were cancelled June, Ross Handly. Defendant M. to said Eoss tiff bank and delivered quarter apart, a of both situate farms, about a mile owned two then comprised approximately County. said farms Lafayette One of Eange 25, and is Township 48, 18, in Section acres, 166.18 located place” It defendant. said the “home the record as to in referred several house, a barn and residence improved with six-room is a farm springs. The said by two watered outbuildings, and well and their his Handly, wife of defendant the homestead constituted located comprised acres, farm other The minor children. five 159% no build- were Township Eange 25, and there 8, 48, 7 and in Sections crops growing 1923, were there In thereon. ings, improvements, aforesaid, de- farms the two addition farms. In said both of on personal property, of certain owner Handly ivas the M. Eoss fendant about and stock, live implements, agricultural consisting of crib. comof bushels controversy, here constituting aforesaid, farms The two deed first trust, follows: a as deeds two with encumbered were 1919, 22, March on record for 4, filed and 1919, March trust, dated to secure wife, his TIandly, Myra E. Handly and M. Eoss by executed pay- and $2o,000, due indebtedness principal their of. payment an- per cent per six 1924, thereon interest 4, March on able trust, a second year; 4 of each March on payable num, 1919, 8, December on record filed 1919, 15, April dated by executed M. Handly Ross Myra E. IIandly, liis wile, to secure payment of their principal three promissory notes aggregating $12,000, payable all to the order of plaintiff, Farmers Bank of Hig- ginsville, as follows: one note for payable $8000, on April 15, 1920, and two notes for each, $2000 payable on or April before 15, 1922. One $2000 *9 in land against the trust aforesaid deed of third wife and his of for the the said estate and reimburse given to secure controversy, of in favor for note A. Greer William payment of estate. William A. Greer against the proved had been bank, which against 1923, a suit instituted 13, bank plaintiff September On Lafayette Circuit Court defendant, in the IIandly, as sole Ross hi. re- to court, 1923, of term, said October County, returnable bank by said notes owned promissory upon certain his two cover entered judgment, a in resulted which suit $4200, aggregating and against defendant and plaintiff 10, in favor .1923, November on execution general A $4554.51. recovery for M. Ross January on bona nulla returned and judgment upon said issued owner -and assignee as bank, plaintiff 1924, 5, May 1924. On 30, 764.
a promissory August nolo for $3000, dated 29, 1921, payable, six months date, after executed Ross M. Handly Myra and Handly, E. wife, his in favor of Anna Handly, II. a recovery instituted suit for upon against said note said Ross M. Myra and Handly, E. as in co-defendants, Lafayette the Circuit Court of County, and judgment was plaintiff entered therein in favor of against and defendants, Myra said M. Ross Ilandly, 12, E. on June $3143.90, judgment for which 1924, is unsatisfied. July 21, 1.923,
On M. Handly defendant Ross de- executed and a Creer, upon livered defendant James A. chattel mortgage cer- stock, agricultural growing tаin implements, live and severed crops, pay- all in controversy, located the 'land secure Ilandly’s promissory ment of .Ross M. date for note same $6000, payable date, after James ten months the order said 23, July The chattel was filed for Greer. said record on 1923. 1923, 5, Myra
On October defendants Ross M. E. ivife, warranty grantors, his as executed and delivered a grantee, as Greer, defendant James consideration deed to expressed consideration,” said deed of dollar other con- “one controversy, together here veying all of the acres of land standing being or on the above described crops growing, “all now grantee part of recites: “As the consideration land.” The said deed trust agrees notes now pay all secured deeds assumes warranty deed filed against said ivas said land.” The recorded 5, 1923. on October record grantor, ex- as 29, 1923, defendant. On October Little- John T. warranty deed defendants and delivered ecuted grantees, for a wife, Mary husband john Littlejohn, L. conveying in cash, in said deed expressed consideration 8, in Sections controversy, located acres of land 1591/. Township ivas 48, County. The Lafayette said Range 25, in 1923. 29, on October filed for record to set brought by plaintiff bank equity instant action The last-mentioned, dated, conveyances, warranty deeds two aside the having 1923, as been 29, and October respectively, October delaying, hindering, purpose of and for consideration
without lawful demands its collection defrauding in the plaintiff bank Handly. Myra E. Handly and M. against defendants afоresaid controversy against trust deeds of first and third 1, second and the November record satisfied of both were October of record satisfied ivas said land trust deed of trust deeds three secured *10 were produced by and cancelled the Recorder of Lafayette of Deeds County concurrently with the satisfaction of said of deeds trust. On 8, November 1923, James A. Greer executed and delivered a deed of conveying trust, to defendant E. N. Johnson, trustee for de- fendant Connecticut Mutual Life Insurance Company, 166.18 acres of land in 18, Township Section 48, Range 25, known as the “home place” of Handly, defendants in trust to secure payment of said promissory Greer’s for payable note $9000, to the order of said in- company years surance five' after date. Other conveyances instruments of title in evidence, directly not however, affecting, controversy, the land in but conveying title to herein, are, other lands respectively, not involved a deed trust, July 1923, 25, dated for July filed on record 27. 1923. executed M„ wife,
by Handly Myra Ross Handly, his Peoples favor Missouri, Warrensburg, National Bank conveying the undivided Handly. one-sixth Myra interest of as an heir of father, her deceased William A. counties, Lafayette lands situate in certain and Johnson payment promissory
to secure said of a note Handly $7000, wife of the same date which deed of trust 2, by 1924, (a was Alex satisfied record June brother Myra E. and the administrator of the William A. Greer ostade), note; assignee warranty deed, May as dated 1924, Myra E. and Ross M. Handly, executed her husband, (a conveying granlоrs, Long as to Hatcher brother-in-law Myra Handly), grantee, an one-sixth interest in E. undivided expressed $6000. the deed of an consideration the same documentary evidence in record foregoing be- constitutes the ' n ' | fore us. upon $1500 annual interest
The evidence tends show secured first deed $25,000 of defendants indebtedness 4, 1923, fell due on March controversy, of trust the land pay- interest make the were unable defendants “Q. Now, at the trial: M. testified ment. Defendant Well, they this land? A. Handly. happen to sell you Mr. how did mortgage of first me, people that held the going to foreclose T couldn’t get have the interest. $25,000, T didn’t tried to —T March, on this $1500 it due. pay I believe interest remember, T $25,000. over. don’t dollars Might a few been have agents parties that were T it. went to see but there March mortgage, 4th of people that held for the it, pay money to due, I have the them didn’t and told it when come they gave an extension me July, thought T have T could have didn’t around I come when the time July, and until of time notice got they again see money yet. T 1hem and went *11 parties from these dealing was with Mr. Lee —I Wallace of the Lexington Savings Bank, I think it was. He was agent, understand, I for people that held this mortgage, and he told me that he a parties had received letter from the that and they going I were if put to foreclose didn’t this interest up in four just days, was, or five I specified think. I don’t know what the time just a short Well, I time. went back to the Bank of Farmers Higginsville plaintiff cashier, here —and I told AYoestemeyer, Mr. — my condition; they that threatening were foreclosure T and didn’t money pаy have the to interest, them their and asked him if I could get money Well, him said, they from and he that would rather not, they they up they had loaned and had didn’t like feel all— loaning any money. suggested me more He that the banks over Warrensburg condition, thought, in better he were that and T probably suggested could get there, it over or to that I go me to see. my says. uncle, wife’s ‘I Jim Greer. He understand right he’s get good shape probably money and can a him for 3-011 AVell,I while.’ Mr. Greer wouldn’t went to see and he have let me money money, T at first. owed him and he some he said alread3r letting any money. T didn’t feel like me have more owed him about Littlejohn $4000. T T I seen and him ño back and Mr. asked come T mone3r, know if how about some and he to couldn’t make wanted Jimmy T I arrangements Greer, if couldn’t him. some see once, back, go T he to and asked him had him and told me told seen go Hh'ndbv, go my uncle, back see and see. Ed or me Jimm.v something, get him to have if T do let me see Greer to couldn’t the, the, time, he T him second money, back and seen and went $25,000 mortgage I if pay interest on the me that he this told would crop my my personal stuff around give mortgage him a would this that already I owed him and interest to cover what there my up. a little my hold farm try intention to put Tt was had to it, all of and that dispose part it or T if while to see couldn’t on this first pay this interest T wanted to reason was the wouldn’t, Mr. Greer after . . . And so me. foreclose so the3r pav T T interest, that money decided this me have had let selling land, any it chance I try didn’t see to sell the would it, I sell would I getting better, decided so latеr things am- T went land. mortgages against the was there could, for if what T what land for take if him he would asked Greer and Mr. $42,000. There around T there against think it. there was $8000, $25,000. was another for there and then mortgage, of a first $10,000. believe, which $2000 besides a note T gave mortgage, I was a third That $7000. third A. Greer held AY. note secure Greer óslate AY.A. me Q. at liis death. you Did owe him that note? A. Yes, I owed him Q. $7000. go "Well, ahead, then, and relate further, you why can, you sold this land to Greer. A. I "Well, had tried to sell partios to other it, couldn’t sell get couldn’t it, no offer on and I saw I going that wasn’t pay to be able to the interest on it year, another thought I that was the best thing for me to do. I sold it Q. to Greer. What negotiations were the you
with Mr. Greer, the contract and the terms it? A. Well, I asked him to take farm this pay over and all mortgages and interest that against was held it. That’s about all. I sold it himto that way. Q. you any Did have intention in this transaction with Greer, Mr. land, you when sold him defrauding this injuring plain- tiff any way? No, this case in A. sir; no. I have never very been able to it. sell I was get hands, well to satisfied it my off subject mortgages.” to the “Q. Cross-examination: Mr. you you get tell your the court that were satisfied to that land off subject mortgages? hands A. Yes, sir, to the rather than hold it myself Q. you pay interest.. when And did come to that con- July, A. Well, clusion? Was that in 1923? I I don’t know. had quite I been kinda in that mind for while. trying had been to sell just I T the land. know when come to that conclusion, don’t as far goes. Q. fact, you as that As a matter of didn’t come to that con- you after bank liad to sue on the clusion threatened notes that I you T don’t know. A. been to the bank owed the bank? before, I Jimmy them before went to sell the land see tried got Q. regard letters the indebtedness several Greer. You time, you? you bank, filed, that prior to the suit didn’t owed the got I filed or I before the suit was whether letters A. don’t know Q. Well, was got gentlemen. it about those you T letters from not. notes, Q. it prior T And was to the time A. so. it? believe wasn’t Q. you Did come T remember’. filed? A. don’t suit was when got A. I don’t you those letters? after them us about to see you bank after Q. go in to see you Did I did. that remember Q. did; no, I sir. But that got A. T don’t remember those letters? your A. Greer after to James you convey real estate all of did Well, conveyed when him. know T don’t T it to you? A. didn’t got Q. or afterwards. letters was, I it was before it whether to James A. real estate conveyed all of this you know You I don’t got No, letters? A. you those filed and after suit after Yes, they? A. you, weren’t Q. Papers served were know that. they? A. weren’t you September Q. Served sir. be- that was You know maybe, T remember. don’t 0- T so. believe A. you? don’t Mr. conveyed your real estate you fore con- I when made just know don’t was. T Yes, I believe 7G8 Q. . . you . got No, Have any real estate now? A.
romance. Q. sir. you got personal Have any property now out of which an execution be A. No, sir, could collected? I think not.” evidence, Plaintiff read in interest, as an parts admission deposition Ilandly M. trial, taken before as follows: “Q. yon You spoken state had talked or to Mr. Greer'about yon people. you what owed other before made the deed on October Yes, Q. 5. 1923? A. I sir. told him about some the debts. you Well, When talk did with him? time A. around about made, Q. long I deed, I How think. or after deed —before Q. you the. we deed was made? A. Before deed. Did him owing tell about the two notes the Farmers Bank time? A. Yes. already Q. you knew He that. Did tell him about your estate, you note owed father-in-law's Mr. William Greer? Q. And he of trust on Yes. sir. knew about your Q. place? A.- sir. knew about tbe deed Yes. TTe also fact, Q. Littlejohn Yes, trust to Mr. Mr. Tn Thee? sir. then, your gave Mr. Greer knew financial condition at time he yon Yes, pay sir. August. check in the interest? - *13 just your you told him what about. Wasn’t that about the.'time 0- Q. at . . Yon were was? A. Yes. sir. . financial condition Mr. Greer on this was made to Mr. Anil’s at the time deed office your Q. T so. And Mr. Anil took 1923? A. believe October acknowledgment you deed, Q. Yes, sir. Did A. that didn’t he? to I you A. don’t remember at that time? tell Mr. Aulh what owed give petition that had Q. him you not. Did I did or whefher Higgins- Farmers Bank of yon ease of the been in tlie served on Q. time he took this Yes, He had that sir. A. ville? suit —(cid:127) That is the you A. 1923? October Mr. Greer on to I don’t September? A. Q. filed had suit been That is the sir. lawyer? A. Yes. your Q. A nil suppose. Mr. I know. Bank, he knew and Farmers him about this suit You told O. Yes. A. made? was the deed the time it at knew Mr. Greer it and at, at time the land you value Q. price What did . . . sir. Well, wbat T know about A. you Mr. Greer? it over to turned put by the it valuation Q. you a put— Did T against it, didn’t against Q. it. it what could take him T he A. told acre? . . . land. All A. pay all the debts? was to And lie then, was to assume he Mr. to this land you Q. deeded When Littlejohn $2000. notes, and and $8000 the two the $25.0.00 Yes, sir. A. estate? Thee, your father-in-law’s $7000 to or 323. for the assume pay and lie Q. that was all That Yes, A. him? you deeded was, of land acres it whatever men- you did not why you know blandly, do Q. Mr. KÍT. amount exact Greer, the Mr. gave you warranty deed tion, you turning were this land over to him for ? youDo why know ? you Why did not mention that in the consideration of the deed? A. Well, thought I selling subject to mortgages was sufficient. Q. That you is the reason that not did mention it? A. Yes, sir. Q. promise Did Mr. pay you back anything he re- t.hat ceived for the land over and above mortgages? No, sir. Q. . . . You money do owe this to the Farmers Bank and have nothing pay it with? Yes, Q. you sir. And turned over all your personal property to Mr. Greer? Yes, sir.”
Defendant James A. Greer testified on his own behalf, as fol- ££Q. lows: bought TIandly You this question? land in A. Yes, Q. sir. your What were Handlys relations with the buy- and the ing of you bought it, land before in connection with in- against it, debtedness interest, anything? your Commence in way own and tell the court. A. Well, Handly $4000, owed me a note, and came to me wanted me advance the interest on this $25,000 loan, him and I told that he owed me and I didn’t no see putting use of I in, may- more wanted that. He he could sell it, pay could, be he coidd do the best me him he wanted to let him, put any have and T and I I up refused said couldn’t more money away without went security, and he back in a came few days mortgage crop growing said that would me a give Q. and the corn and if I him stock that he had would let it. have hogs. Q. Give a for what? A. I mean Some cattle $4000, $4000 what? A. and the interest on the For the Q. to? A. The $25,000. the interest on What did amount $25,000 on the amounted to $4000 interest on the and the interest figured $2000. and added up, $4000 T that left the note When Q. $2000 he it, $6000 flic note. What was the $2000 to A. Tt interest and the interest added to it? was the on the Yes, Q. mortgage? A. up you Did a on thе to date. take gave me list mortgage. him what he and he I I asked took *14 make and $4000 T for the I him would a and told then take whether Q. you the records see . . Did examine $6000. it a . or had the bank Well, gave check, him a A. I or not it was clear? (-heck I if stuff asked this Lexington Bank, and over to the
to send go wasn’t; ‘T will over says, I mortgaged it so he said that and was I won’t stop check, mortgaged, I will the and, if this stuff is there clear,’ and said, clear;’ T went is £Tt and he if this ain’t give it looked Lexington, and he at up. I was over it Mr. Anil to look had find. that we could this stuff nothing against was up, and there it give you a check Q. Did Yes. A. personal stuff? Q. the That is you got Q. $25,000? Have Yes, sir. A. on the interest the G) Yes, given (Fjxhibit check the That $1547.79. A. check? the for the Q. interest on $25,000. the What your led negotiations farm ? the A. lYell, T after had paid interest, bought this I mortgage, $25,000 Q. mortgage. Why you buy did A. that? they Well, wanted to sell I bought it and that to place, hold it on the you I bought know. . that —I don’t remember—a short time after I paid Q. this interest. you What did pay for that? paid A. I $26,000 up Q. November 1st. . . . you pay Did any interest mortgage? the first Q. A. Yes. How much, leaving out that $1500 paid 1923), now? A. I $625 right that (August 4, date there (Exhibit Q. with that check H). $25,000 you (the When did buy it note) ? A. I bought.this T sometime, note i'eckon it must have been part July the latter August. Q. or first of . Why . . did you buy bought this land? A. TWell, protect myself it to Q. you Greer heirs. What do mean W. the Greer heirs? A. Q. They A. they Greer estate. How are A. interested? had mortgage. Q. your $7000 third What, opinion, was this farm it, bought you Well, judge worth at the time .farm? A. whole I exactly $45,000. just somewhere between know T don’t figures. figured ivay up I I That’s the it at time didn’t any pay think I worth because wouldn’t the interest more (third you Now, trust). Q. $7000 I’ll ask whether deed оf you plaintiff bank or cashier of the not a conversation Yes, Q. August? presence In July A. sil*. sometime him, he you Alex in which that take over told insisted against it, including this the land at what make, balance, heirs, that possible, out or words to his. Yes, Mr. you did, I A. conversation? Did have that effect? bank) thought Mr. (cashier T him Woestemeyer of plaintiff told—I it, land in the Littlejohn said he wasn’t part of he take would business, banking Cross-examination: “O- business.” was in the A. I don’t Bank? Farmers owed the Mr. Handlv knew that You know paid I don’t interest I first this When at that time. know Q. afterwards. I some not, knew there T did or whether Bank Farmers you owed Mr. Handlv did first learn that When bought mortgage. T after A. notes? unsecured Sometime some from agreed over to take the long you was it before O. How did long that before How it? debts for the Mr. Handlv I bank, that? before was it you owed the that he. ascertain T myself time, but afterwards that at bank he owed didn’t know he, agreed it over you take Q. YThen it. owed had heard owed Boss know Tiandly. you didn’t Boss you learned Q. And Yes, know. I time, didn’t is that correct? agreed Boss land off take you after indebtedness about talk first say your Q. you And Yes. ITandly’s hands? *15 with Ross was a about week days or ten before the deal was closed? A. That’s what I think it was, because I went to Handly Mr. I Woestemeyer went to Mr. get to them buy to it they wouldn’t. Woestemeyer I thought told Mr. I Mr. Littlejohn buy part would of it, and he refused. buy He it; wouldn’t he could have it for what against there was it, Q. as Ross offered it to me. you How did happen to learn about this indebtedness that Ross Handly owed the say you bank? you You agreed learned it buy after to it? A. I don’t I Q. remember that. heard it afterwаrds. You sure, are now, you you agreed it heard after to Yes, take the land? A. Q.
the first I I heard it that remember of. That was before the made, Q. deed was it? . wasn’t A. Yes. . you . When itwas trying get buy were the bank to bank to this land? A. That bought Q. was before I ever land. you bought That was before Handly? Q. it you Yes. A. Didn’t Handly know that owed nothing the bank at time? A. Q. He never said it. me about you you trying And didn’t know at get were time buy Handly the land that didn’t owe bank? A. I knowed it, They I up didn’t how know much it was. had called me Handly says, know whether I ‘No.’ They they had told me. said mortgage.. wanted to know if had said, told me he a I ‘ITe you mortgage hogs.’ Q. me any you told didn’t have on the Are talking mortgage personal property about the on the or the real is, T talking A. about personal estate transaction? That you Q. Right Handly gave per- property. mortgage a after on the Woestemeyer you they up property, and said had sonal Mr. called Yes, me, mortgage hogs? A. if told a asked me you anything Q. pay the T Did he he did not. do told me No, anything. mortgage? I the bank A. didn’t owe bank on that Q. hogs mortgage they a held You did ascertain T given hogs A. never you mortgage on also? a had Q. Mr. Woeste- hogs. wasn’t record. mortgage It saw no on the hogs? you on the had you meyer up told called T him the told record and That I had looked A. was after mortgage, you chattel took that it. record When didn’t show 0- any- there see attorney records to you up to look your yes, sir.” thing did, I property? A. against personal recorded parts interest, evidence, admission as an Plaintiff read trial, before the Greer, taken deposition of defendant A.. talk trade first “Q. Mr. you and When did follows: just Well, T remember don’t farm? this 323 acre reference sued been he had or after exactly. Q. before Was that . . . you when Q. remember Do A. Before. Bank? Farmers Bank, No, don’t. I Mr. Greer? Farmers he was sued Q. Did No. 'when? you about telling Q. him You remember
you know what ho owed the Farmers Bank? A. exactly. Q. Not IIow much you did know? say You not exactly. you Yrhat do mean by that? IA. knew that he Q. owed them. When was it Mr. Woestcmeyer you told that Boss owed the Bank? A. Farmers A paid short time after I this thing Q. interest on this over there. When was you paid it the interest? A. I you Q. tell can’t that. About July. Q. when? A. In . . you pay Did Mr. any money when he made Q. this deed? A. One dollar. Where you were you paid when him this one dollar? A. I don’t remember Q. now. In Q. Mr. Aull’s I office? A. yoxi don’t know. Did figure out Mr. owed Farmers Bank you time No, Q. took this A. They you deed? sir. had what he owed told Q. bank? No, A. sir. You had been in the bank and dis- cussed matter? A. I they Q. this know said that he owed them. knew $3000 You that he owed A. Yes, $4000? the bank sir. Q. .you property You when he knew he deeded this would not Q. have a per- dollar A. I he You left? didn’t see where would. you trying him knew mitted to make when he was to cheat deed they way this You knew would have no and defraud creditor? get money? I I bought their A. this wanted to secure of mine Q. this— a dollar A. No. How You knew he didn’t have left? Q. you gave I know? I didn’t know it was at. He did where a mortgage T A. I didn’t want to fool it. on all this stuff— mortgage give if would I it, didn’t want but I told him he me mortgaged. said, I it, he said was not would take Q. stop is that? I What stuff mortgaged, will the check. machinery. Q. You hogs A. His his took stuff, cattle mortgage? A. everything That is the he had. any understanding with Mr. Q. you Did have Yes, sir. . . . Q. A. You No, him sir. knew you help would out? A. I 8th? didn’t October sued, that he was sued he had been you Q. the Farmers Didn’t state been sued. know he had I know until later. they didn’t brought it—but Bank —A. After Yes, lawyer A. sir. in that suit? Q. Mr. Anil his You knew A. This the time— in that suit at Q. petition Didn’t he have Q. A. Yes. 5th? Q. October Made that. before understanding. my That A. October 5th? are it was You sure Q. knowledge of it. it. Had no then, I didn’t know If was sued he A. that? you about sure you had sued—are been Didn’t he tell Q. directors And none it. was, I know didn’t sir. If he Yes. No, A. sir. been sued? you that he told the bank had what was see records at the Q. you go look over Did Q. Your counsel? Aull Mr. did. A. records? place, examine I counsel, A. Handly’s too? Mr. Yes, that was Q. And sir. Yes, made? only examination that was Q. And suppose. Q. sir. And be reported liiat lie bad examined the records and lie you never told there was anything except the deeds of trust it? you Never told that Mr. Handly was sued by the Farmers Bank? IA. never knew he was sued. Q. . . . you Did have Aull Mr. look it up you when took the deed? A. There was another fellow there when I made the deed to Littlejohn. Q. Mr. Aull took the acknowledgment Handly’s deed? A. I think Q. so. You state that Mr. Aull went over, you and don’t know that Mr. Aull you told about the pending suit in the circuit court? No, sir. Q. you Don’t know that Mr. Handly you? *17 told A. No, Q. sir. You it, don’t remember might Aull Mr. you have told you forgotten could have about it? 1A. don’t think Q. so. . . . nobody'looked And up the record at that time? A. I suppose they did. anybody Q. If did, it was you Mr. Aull. Don’t know that Mr. up you
Aull it looked told there was a deed of against trust pending also the suit the circuit court Bank the Farmers Higginsville against Handly now, Mr. ? A. Q. Not to me. Well, your memory. let Handly me refresh Didn’t Mr. you tell about suing you Bank him up Farmers before and he came here? A. any Q. Not that I have recollection about. . . . you Did ever any state to Mr. or other Woestemeyer, the-bank, directors of you going help Handly Mr. pay were to this debt? A. Never Q. you your Atril, counsel, did. Mr. Did authorize to offer a settle- Q. compromise you A. debt? No. Did ever talk ment and this compromising No, A. Bradley Mr. Aidl Mr. about this debt? or gotten Q. You all the nothing compromise. I had sir. I in the a dollar. A. was not
property and left bank without banking Woestemeyer banking said he was business. Mr. had a was. He Q. was? A. Said that he Said who
business— A. That him for? Q. you it to buy it. What did offer chance to Yes, bought A. you it? Q. was before You mean that was before. room. in that little In Q. you? A.
sir. Where were Q. long was that How Q. A. Alex Greer. present? Who was I didn’t filed, been If suit had A. the suit was filed? before IA. you? was made Q. long How before deed know it. A. 1923? before October Q. weeks About two don’t remember. buy it, wouldn’t get him and he days tried to before he Several would mortgages, he buy subject to if Handly Mr. I would I don’t A. bank? in the that time Q. present at sell it. Who this us Greer and Alex Woestemeyer, Nobody know. but Mr. take if wrould thought he I short. me off little room. lie cut Q. that about Was other. Littlejohn to take get T could Tom A. place? you Handly Mr. two w7eeksbefore Sep- middle it the make would Q. That days. week ten One ¡Somewhere lumber? A. around Üial. JJcfore ever 1 bought it, 1 went get there and tried to him buy it. Q. you Did he tell how much owed the bank at that time? No, Q. A. sir. Didn’t you he tell there were two notes? A. Hi did, he I have no Q. recollection of might it. He have mentioned you? it to possible It is that he mentioned it to me. He could have, guess. I Q. You buy wanted him to it and he wouldn’t? A. No. He said he was banking Q. in the business. what And else— A. He didn’t say anything Q. you more. bought Then went and the property, knowing that the debt to bank had not been paid? A. Yes, sir. Q. you expect How did pay Mr. it? A. I don’t know. anything Q. didn’t know about suit. Didn’t Mr. Woeste- meyer you tell that Mr. had been at that time? sued No, any brought sir. If suit was at that time I did not know it.”
Alex defendants, witness if asked Greer had a with AVoestemeyer, plaintiff conversation Mr. cashier of bank, in July, 1923, in witness’s “in presence, which it was stated Mr. buy and insisted the bank pay what was it and make theirs out of what was over and anything above ivas to made.” there be AVitnessanswered: there had such “Yes, we were conversation Mr. present.” Mr. conversation I AVoestemeyer. Greer had the and was “Q. cross-examination, *18 On testified: And what was witness you going and Mr. into the bank? A. AVanted occasion for Greer buy Q. this land. Woestmeyer if tract? to see Mr. would entire Q. Handly property? Yes, A. tract. All of the A. The entire Q. negotiating talking, wasn’t he? And Mr. Greer was sir. Handly ? talking Mr. Boss A. I Q. was for don’t Yes, A. sir. He doing was talking he was the one that but for, know who he was pre- I Handly owned farm? A. talking. Q. Well, Mr. Boss AAMestemeyer Mr. . . asked then. . He who it was [Greer] sume AVoestemeyer back that answered land, Mr. if lie would take Q. banking in the business. business, he was wasn’t in the he all that was said was about A. I think that What was said? else any price on it didn’t ask land. He price considering the anything, price ask AVoestemeyer didn’t Mr. anything else. Mr. again what just repeat Q. And it. what he take would buy if would Woestemeyer he Mr. A. him. He asked told Greer Q. else was it. What against mortgages was the land for the Woestemeyer said Q. he Mi'. all. about I think A. said? real estate in the wasn’t A. He estate business? in the real wasn’t banking business.” in the business, he was “Q. Didn’t bank, testified: plaintiff cashier Woestemeyer, Mr. trade bank before your come Greer and Alex Mr. Greer you made and ask to take this land for what it? A. No, Q. sir. they Didn’t your come to bank and you want buy Q. it? A. Yes, sir. Did you ask price them the any it at time, or Ross Handly or Greer? A. I advised Mr. Handly to sell part of Q. the land. you Did ask price on it?. A. I asked the price on 160 that sold, he without improvements. Q. What was it? A. I giving you am hearsay again. Q. I don’t call that hearsay, what asking you he said. I am Handly what said. What price did you it ? at A. Handly Mr. never did price the whole farm me, price never it priced did to me. He and then place, the home but he price never did Q. whole farm to me. price Did he it in two $25,000 tracts ? A. Q. each tract. What you did ask him Littlejohn'tract? to take for the $24,000. Q. A. agree Did he it? No, Q. you take A. sir. Did think that was Littlejohn all the tract was ?. worth, $24,000 A. I think it would be very worth prices change more. It’s a fine but farm, I on land. say. paid Q. Why you couldn’t He more. did ask him to take jmu thought you it was worth more? A. When can’t get you get more, that I can you settles it. don’t know Q. you any fix price can down. . . . Did come the home Q. place? Now, you note, A. Never. . . . this $7000 held you? did, Yes, William A. didn’t A. sir. the bank due Q. they up? Yes, note A. you insisted that take this sir. And Q. paid you? Q. up? A. sir. And they Yes, And did take Yes, paid you? Q. they A. And me, probated. Paid had it A. Q. that’s secured this is one note [third] sir. And I from what what inferred A. That’s against this land? of trust in- Q. you Did discuss the . . . me, sir. yes, Mr. told with Mr. owed the that Mr. debtedness I Yes, sir, did. bank? Greer, at the James A. presence 'the have to would Handly that we I Mr. July, 1923. told Sometime Mr. Q. Was notes. payment of the security оn the ask additional Q. sir. Heard Yes, in that conversation^? present Mr. anything, What, if did Q. sir. Yes, conversation? settled would be estate when the say? Handly said A. Mr. *19 to? reference have did he Q. What estate paid. up I would be Q. James Greer. A. William father-in-law, of his A. To the estate Yes, sir.” A. time? present that A. Greer was called Handly, M. Ross defendant Handly, a brother Lee “Q. Did follows: as testified plaintiff, and a witness on behalf as August July or along about you any with Ross talle have his had on some Greer A. mortgage James that a about a statement Handly make Ross Q. Did answer.) (No property? A, Yes, sir. had? A. Greer you mortgage a to about Q. Tell the court what tiuit was? A. I .statement would rather By not do that. will to have state if counsel it, Court: You insists on it. sir, Plaintiff’s Counsel: we would Mm Yes, like for brother, state it. We realize he’s a but would to have him we like make the statement. Go ahead and tell court. A. He said mortgage By Mr. Greer had a on his corn so as it. to save : mortgage Said what ? A. That Mr. Greer had a on his corn Court “Q. so that he could save it.” Cross-examination: You some- said thing mortgage. say gave giving something, you about him Did he mortgage? you What it said said? A. I said that Greer he Q. mortgage liad a on his he said Mr. Greer corn. Was Q. say? all A. A. he said? No. What else did he Said so he Q. Q. say. it? A. didn’t could it. So who could save He save Q. say No, didn’t say Greer? A. sir. Did he he he he owed Did anything A. No, say Didn’t about that? Q. him? A. sir. owe A. Q. you know1- he him or not? And don’t whether owed No, sir. No, I don’t.” respecting conversation had with his
Ross testified I previously him that follows: “I had told brother, Lee mortgage my loan Jimmy property to secure a given had Greer а pay money advanced on a mort- him and interest that I held from given your you Q. you brother gage $25,000. Did tell No, against your it? A. corn save Mr. Greer a note No, it? A. he had taken it to save By Or that sir. Court: sir.” “Q. Littlejohn, Mr. Littlejohn, testified:
Defendant, John T. you of conversations with you correctly, had a number I understand Well, A. we talked about buying land? this Mr. Greer about Q. many times, though. AL1 Not so probably two or three times. bought you say? land, Mr. Greer were after those conversations did Mr. ever Q. any conversations In of those A. sir. Yes, he help in matter? A. He trying to you who he tell Q. that the something out of it. Is estate—or wanted to save the Handly? He Mr. A. this land over he took reason he said to save them reason, said he wanted say but he that ivas the didn’t to the Ross Q. estate he have reference something. Did Q. might have meant He I to the estate. A. think children? that from what might have meant A. He children? reckon, I it that he that, I took meant have said. could he He Q. say going he how was Did he it for the estate. to save wanted trying Q. mean, what was he he What did it? A. No. save Q. Well, I know how. don’t ? I know. don’t for the estate save had a think, I think the estate rather I mean? what did he guess Yes, I Q. $7000? land. mortgage on this third
777 pay way wanted to make it that out. That I it, anyway. took Q. saving . . . What was said about Ross and his children some- thing day A. out of it? Mr. Greer to said me one that had he to help Q. those children some. . . . Mr.- Greer said that about Q. many A. sir. How Yes, Ross’s children? did he have? A. Q. know, I five. That don’t four or was after was made by Q. him A. I rather think it -was. Ross? Said he had to help something of it? or save Ross’s children out A. Said he had Q. help by io those children. Did he mean out of or the land tak- ing A. 1 know. I the land? don’t didn’t ask him. It didn’t con- Q. a cern me. Was that different conversation from what he said out it? A. when he wanted to save the estate That was a dif- ” evening Warrensburg. ferent conversation. That was one he was at M. A. Defendants Ross and James Greer testified that the July mortgage, 21, 1923, represented dated $6000 and chattel note Handly owing pre-exi,sling promis- to Greer indebtedness of $4000, sory thereon, interest and the interest note for accrued payment made Greer first deed $.1547.79 controversju Ilandly’s $4000 against the land note trust to Ross cancelled and returned payable Greer, A. and was to James delivery $6000 note time of the execution at the put in vTas evidence on mortgage. $4000 note and chattel Handly’s indebtedness explanation trial defendants. or $100 had borrowed was that he note
represented $4000 1911, Greer, in or uncle, James A. his wife’s $200 or from money from his sums various also borrowed and that he had Greer, A. July, William father-in-law, William A. $4000, payable to James his note had from Greer obtained owing both that time representing his indebtedness Greer, A. Greer; supposed was he had A. that James A. Greer and William William A. Greer, that but money A. William borrowing the explana- A. Greer. The payable James the note Greer had (James.A. him owed Ross was that A. Greer tion of James James owed Greer William Greer) $150, and $100 about sug- William A. Greer $4000, balance of A. Greer the Handly’s $4000 note for take A. Greer gested James Greer; William owing James both debts evidence sometimes together, and that traded often A. Greer and James James times at othеr Greer, James indebted William was a thousand be would “there William was indebted indebted- that such sometimes.” way the other one dollars brothers, evidenced been never had two Greei* ness between by endorsed been No credits by promissory notes. July 21, al- Handly, dated note on the A. Greer *21 though sales had been made certain of of crops the stock live by covered securing payment chattel of said note. “exactly” testified that he did not know how much paid had been note, kept $6000 on that but he had account of the security, “figured” sales of and that he he was entitled to credit on to $4117.97. the note the amount of James G-reer testified that no on note, $6000 he made credits the back of the kept, book, he had in a an account of the blank memorandum security, made, $6000 sales and that the note entitled $3500. to credit of about evidence shows the actual aggregate consideration
paid by defendant for the two farms in controversy, (by assuming paying principal mortgage indebtedness, with same) interest and taxes was, as follows: Principal of first deed of trust ......................$25,000.00 paid Interest on same to March 1923 4, .............. 1,547.79 on Interest same from March to October 1923 ..... 875.00 Principal of second deed trust, by note owned
Littlejohn .......................'................ 8,000.00 Interest accrued on $8000 note said .................. 686.00 Principal trust, of second by 2,000.00 deed of note owned .. Thee ....,............. Interest $2000 accrued note 64.00 trust, securing Third debt due William 7,000.00 G-reer .............'....................... estate paid controversy year 1923 .... 253.32 Taxes on land paid .$45,426.11 ... Total consideration for the two farm tracts Littlejohn .$23,150.00 paid by tract . Consideration 159%-aere by hоme-place paid Actual consideration G-reer for ............................................$22,276.11 tract by $23,150 paid Littlejohn for the Of the total consideration of note, represented by principal cancelled tract, $8686 is acre 159% and,accrued by Littlejohn, second deed of secured interest, owned a,nd paid tracts, the balance of two farm trust on the Littlejohn in cash. general year 1923 marked a that the tends to show
The evidence in the farm lands lands; that sales farm value of deflation ’’ “ stand-still, and that stagnant practically community were except, per- lands, farm transfers of no sales generally were there in the farm-owners mortgages. Several foreclosure haps, under market the reasonable plaintiff on behalf community testified including acres, 166.18 approximately place home value per $200 $170 -from year 1923, thereon, in the improvements the reasonable opinion that expressed witnesses the same acre, improvements value of tiie thereon $8000 was from $10,000. Wit- nesses for defendants estimated the value of place, including the home improvements thereon, 1923, to $100 be from per $125 acre, improvements the value thereon $6000. was about Defendant Ross M. original testified aggregate that the cost placed improvements, which had been place the home some prior years, more, ten $4855. was about Plaintiff’s wit- nesses estimated the reasonable market value of the acre tract 159% Littlejohn (upon sold Greer to which tract im- there no were proAmments) per to be $145 $150 from in 1923, acre defend- Avhile ’ ants per Avitnessesestimated such value $1.30 to be acre. Littlejohn The several Avitnessestestified that the tract Avas better *22 land, greater part capable a of and thereof cultivation than the home-place testimony respecting tract. 'The of all the Avitnesses the Avholly upon opinion, market tAvo‘tracts based Auilue of the upon farm in any actual, recorded, than sales of lands the rather community during year upon 1923. the Based the considerations paid stated, approximately $134 above James Greer defendant acres, improve- 166.18 place an tract of the acre the home paid Littlejohn $145 an for the thereon, acre ments and defendant unimproved tract tract, unimproved. The acre AvhichAvas 1.59% adjoins a 320 farm which purchased by Littlejohn immediately acre buy Littlejohn the owned, an inducement he then tract, which Avas acre) might price ($145 have offered higher an than he farms contiguous 320 acre farm. The to his said tract not. been city Higgins- of of the question in about ten miles south are located Lafayette County. in Adlle, dur- plaintiff bank Littlejohn T. Avasa director
Defendant John that, kneAv AA'hilehe ing question, and testified all the in times and that the plaintiff bank that Ross M. Avasindebted by bank to brought the suit be board of directors had directed ag- yet not knoAVthe he did from recoATersaid indebtedness not did to the and gregate Handly’s amount of indebtedness farm-tracts of the two any sale suspicion that the at the time have to shoAV tends The evidence by Handly Avasfraudulent. to Greer Company made Insurance Life Mutual Connecticut defendant home-place tract the upon security of the loan of to be title of the causing an examination acres, of 166.18 after office, and by home its titles, and also by a local examiner Handly’s indebted- knowledge of no actual that said defendant had in land. plaintiff any claim of -bank, plaintiff ness to Greer, the de- question in lands After the sale home-place possession Ross M. remained fendant tract, as tlie tenant of Greer, under annual and farm written leases between Greer, as landlord, and Iiandly, as tenant. I. It is by insisted appellant (plaintiff) the evidence here-
in does not support the findings judgment of the learned trial chanecll°r; that the chancellor in dismissing erred plaintiff's bill being- as equity, without enter- ing judgment in favor of all defendants, for the that, applicable reason under both the law and evidence, findings judgment chancellor below should have been plaintiff. respondents (defendants) favor of meet the con- by urging appellant tention and insistence of an this is action equity, testimony in which the is and wherein conflicting, trial testimony respective chancellor heard the parties, witnesses, orally their several fall lips, their and saw their testifying stand, demeanor manner while witness where- given findings fore due must be deference court to the judgment It causes, of the trial is true in equity chancellor. balanced, testimony conflicting evenly and rather where the predicate findings which to there is substantial evidence judgment disposed defer the trial we are some- chancellor, pointedly Judge findings, but as was what to the chancellor's Schnecko, 250, 258, v. 100 Mo. after remark- Benne Sherwood, we ing customary practice: by such remarks on our rule of “But meaning concluded that we are are not to understood be *23 finding do by.the below; far from it. Such remarks court of facts supervisory ques- over control not mean have abdicated our that-we only con- causes; they when there is equity mean that tions of fact in evenly and the testimony is balanced testimony, flict of where the will far so appears correct, then finding to be of the chancellor Ave affirmance; ‘that and by our finding defer lo his as to sanction ” nothing more.’ that, AAreare in equity fact, mindful in causes, fraud dis- where as tinguished alleged fraud, bill, is in bur- constructive the the in to plaintiff, causes, prove as other upon the
den is cast
in
fraud
fact is
alleged; and that
fraud
the
and establish
cir-
facts and
hand,
the
on
other
but,
the
presumed,
to be
never
honesty
purpose,
Avithan honest
consistent
are
in evidence
cumstances
But
arewe
be inferred.
should
revieiv
under
transaction
the
in
pro-
“fraud is never
said, that
often
have
mindful, as we
likeAvise
reduced
intentions
fraudulent
tops, nor are
house
from the
claimed
intents and
Fraudulent
press.
public
the
given writing are
darkness,
origin
in
birth
their
have
acts
fraudulent
attempt to dress
parties
the
Avrong. Ofttimes
by
a desire
fathered
them with tliu adornments oí honesty, but beneath it ail will be found
blazings
unconscious
which will mark the real path-way
by
followed
parties.”
the
Francis Mill
[St.
Co.
Sugg,
v.
155;
Mo. 148,
Massey v. Young,
wholly one of applicable fact, controlling for the law' of the ease is well settled fact, the decisions of this court. In re-
spective parties, apparently in briefs herein, their con- court) (as law' cede the heretofore announced Ilandly, in that, if the of defendant purpose to be controversy to James conveying the land anticipation plaintiff: bank of the of the reach put it out was to judgment apprehended follow course would execution pending upon his unsecured then suit recover w'ould fraudu- bank, then it was a owned held *24 Francis 565; Nunn, 275 Mo. St. v. 293; Barber Mo. 201 Hoppe, v. 528; 77 Mo. Cooper, v. Dougherty 148; Mo. 206 Sugg, Mill Co. v. 228 (Mo. Sup.), Bishop v. 601; Bishop Mo. Allgaier, v. Frederick there cited.] and eases 1065, W. S. Handly ren- w'as M. Ross that conclusive quite is The evidence the conveyance making the immediately upon insolvent dered if, in on October Greer James controversy to in,solvent fad., making ho not before the conveyance. of that Handly openly Ross admits that fact liis own testimony, for lie personal that had stated he neither real nor property out of which an and, execution could be collected, while he admitted his indebted- plaintiff ness bank, he nothing testified that he had pay it with. Greer, Defendant deposition James in his taken herein, admitted that knew, he at the time took the deed from Handly, he Ross that Handly plaintiff bank $4000, the owed and when Greer was knew, Handly asked when he deeded him land, the “that Handly left,” would not have dollar he “I answered, didn’t see July 21, 1923, prior where he would.” On several months to the by Handly to conveyance, the land in question, had Greer mortgage upon substantially taken a all personal prop- chattel of the erty together growing the owned and unharvested crops upon is, land. It reasonable to therefore, the infer and believe known, conveyance that have at the Greer must time the of the Handly thereby land, stripped every vestige had himself that property possessions, personal and both real. Suit was com- plaintiff Handly menced Circuit County Lafayette September 13, 1923, Court of Hand- recover ly’s testimony indebtedness to the bank. The unsecured some- cоnflicting respecting knowledge of what Greer’s the commencement pendency deposition suit. testified in of that his upon mak- petition prior had been served him to the in the suit ing conveyance land; peti- he had delivered the attorney, him to his who was also tion which had been served notary public ac- took the attorney, and who was the who Greer’s conveyance of knowledgment to the deed of and his wife attorney James knew of the land; A. Greer both the and that suit at time the deed pendency of the commencement testified he knew that Greer while Defendant and delivered. yet did not know the amount bank, to the indebted suit, al- pending not know about the indebtedness, and did of the public supposedly attorney searched the though aforesaid conveyance. delivery of th'e accepted Greer records before nigh theory, is well the evidence upon defendants’ own But even Handly’s indebted- all about knew Greer conclusive that creditors, as well. ness, bank, to other only not to the owing about made, deed was Greer, before the he told testified that “just about” his Greer knew bank, several notes to money 1923, when Greer advanced August, financial condition against $25,000 encumbrance pay upon the interest due cashier gone positively he had quite land. testified 1923, before the July .August, some time plaintiff bank, *25 making delivery and of the of conveyance, and proposed that the take over the for the amount of existing the en- against it, Handly’s cumbrances and make indebtedness to the bank, possible, out of the of balance the value the land. So it is rea- infer sonable to and believe that Greer knew, at the time of such proposal bank, Handly to the was indebted in some considerable least, sum, why to the bank. Otherwise, proposal Greer’s to the bank? Furthermore, it quite seems be clear from the evidence that Boss conceived the idea of deeding land, the in con- assumption by sideration buyer of the the existing encum- brances thereon, about when time the bank insisted upon pay- ment of his indebtedness to the bank. Prior to time, he seems only sought way to have some to borrow money pay an- nual interest of $1500 due against encumbrance words, reasonably land. In other it seems to be clear from the evi- conveying dence that conceived the idea of the land for the assumption against consideration of the of the encumbrances only began upon, after bank became insistent press him for, payment indebtedness, security against of his or for his in- actually carry and that not debtedness, did out the idea until a suit after the bank had commenced him to recover such indebtedness, ready cash, and then realized no pecuniary conveyance whatsoever, a result of the benefit of the land. The logical drawn therefrom, think, and reasonable inference to be is we Handly making purpose conveyance intent that the only assumption by buyer land in consideration existing payment was either to thereon evade the encumbrances delay bank, or to hinder and the bank to the of his indebtedness purposes either which demands, lawful in the collection of its part Handly. defendant, on the transaction fraudulent made the believe, think, infer we from all the It is likewise reasonable A. Greer evidence, that defendant James facts and circumstances in, intent knowledge participated the fraudulent of, had actual Handly. Littlejohn that James testified purpose Boss Handly to conveyance of-the land from him, after the Greer told (Greer) William wanted to save the made, he been Greer had occasion, Greer on another something, A. Greer estate Littlejohn is a co-defendant children. help Boss’s wanted to said he seemingly reason was no and there both Greer herein of concerning admissions falsely testify him to or inducement tends to show The evidence him Greer. made to or statements there Greer, William A. an heir of was not A. Greer that James directly either participated, showing in the record no beneficiary distribution William. in the as a indirectly, Crúor óslale. (bo However may laudable have been purpose of James A. Greer seeking' iu to save the AYiiliamA. Greer estate some- *26 thing, iu seeking help to Handly’s children, as the result of a fraudulent transaction, such purpose does not remove the fraud, participated in by both Handly Greer, and or render the transac- tion between them any the less fraudulent respects as rights the and demands of the creditor bank. respondents But urge that James A. Greer an unsecured creditor of Ross TTandly, and that James A. did Greer purchasе not the land for a fresh consideration, solely purpose the of liquidating, or of securing payment of, Handly’s pre-
existing debt Greer, to and, therefore, that Handly had right, the lawful under of. court, the decisions to payment of, Greer, his debt although or to secure to liquidate, the may prefer been to transaction have Greer creditor, as a such effect of conveyance of the upon sale and land was the made the provided market of fair and reasonable value the land. It is true basis of the Irvine, Kincaid said, 615, 623, v. Mo. that “so that have we transaction, failing' is a debtor in cir- long there no as fraud may prefer who is his creditor his kinsman as well as a cumstances equity will the. of a court scan stranger; 'and, while transaction relationship will and alone not suf- preference afford jealous eyes, points But the evidence herein to of fraud.” ficient evidence unsecured creditor was not an of A. Greer fact that James meaning acceptation term, ordinary of that usual July Handly. conveyance of the land from On took the time mortgage all of upon given to Greer a'chattel 1923, had 21, growing crops, his to secure upon and also property, personal his then $4000 of interest indebtedness a claimed of payment payment $1547.79 Greer, to secure also to owing by first upon interest the accrued payment of by as Greer advanced land, aggregating $6000. in all against the indebtedness mortgage fictitious, Handly Greer was $4000 debt that the claims Plaintiff respecting nature of Greer testimony and thе least. enlightening, say very is not indebtedness $4000 Handly’s note $4000 may, assuming But be Handly to never- indebtedness a bona-fide Greer evidenced 21, July by given mortgage theless the chattel ample security for the have been evidence the. 1.923,appears Handly and Both of $6000. Handly’s indebtedness total payment of security had mortgage chattel made sales Greer testified credited never been amount had. $4000, which $3500 netted around only $2000 unpaid about remains there note, so upon chattel $6000, secured indebtedness claimed Tlandly’s July mortgage 21, oí 1923. Whether all oí the mortgage chattel security sold, or not, been is not made clear the record before us. There is no evidence record that the holders of the several of trust deeds the land harassing were Handly, or threaten- ing foreclosure, the interest after 4, due March 1923, on the first indebtedness $25,000, paid. had been While Greer acquired purchased claims to have notes, the first mortgage ag- gregating $25,000, August, it is 1923, evident that those notes amply superior were secured trust on the land. It is danger clear our that Greer minds in no stood whatsoever of los- ing airy part Handly’s conveyance debt to him had the of October by Handly. never been The testimony respecting the 5r reasonable value of two tracts of land in question, year in the widely conflicting, appears to be largely, based if not opinion entirely, witnesses, the mere for no actual sales of *27 appear community in been land the during year. have that Littlejohn home-place tract, testified that the which was retainеd Greer, improvements with the thereon, was worth much, or more, purchased Littlejohn as the acre tract from Greer. But 159% though assumption payment even the of existing the of the encum- against brances in an controversy adequate the land was and fair conveyance land, consideration for if the of said defendant the existing preserve A. Greer no James had interest to or protect, purchased protected consideration, pur- for a fresh is not in such seller, selling conveying chase he knew that the was and purpose property putting the of his out of the reach execution. of Hoppe, 300; v. v. Nunn, 201 Mo. Barber Mo. [Gust point minds, To oirr facts in the and circumstances evidence 572.] conveyance strongly certainly of and fact the sale and to the that Handly the land in defendant controversy, by defendant Ross M. agree- outgrowth understanding an Greer, was the put beyond
ment land the reach between said defendants to plaintiff, the bank, creditor at that time. Handly
We see defendants pleaded no the defense, merit in conveyance and in land Greer and of the answer, their that the sale Handly had offered after Greer was made land, and con- same amount plaintiff bank for the be worth that, if proposal sideration, land know of therefrom. We its demand might collect more, the bank take required to why bank was reason, equitable, legal or no mortgage in- payment of a assume the time at that land merely because interest, accrued $42.000, thereon debtedness Handly. creditor an unsecured was of opinion We are learned trial chancellor his erred findings judgment upon the facts and circumstances in evidence, and have reached the conclusion that judgment nisi must be reversed as to the defendants and Greer.
II. As to the defendants Littlejohn, there is no conclusive or con- vincing evidence that either John T. Littlejohn, or wife, Mary his L. Littlejohn, knowledge of the fraudulent nature of trans- action between they knowingly assisted in the perpetration a fraud. It is Littlejohn true John T. was a plaintiff: bank, director of and that, as such director, he knew was indebted to the bank. He testified that, while he knew that indebted the bank, he did not know the indebtedness; amount such and lie testified further that he had no dealings respecting purchase conversation or with Greer of the controversy tract until after the land in acre had been con- 159Y2 veyed by Handly. to Greer The consideration of the sale Littlejohn tract to defendants acre was' the basis of $145 159i/> per acre, $23,150, aggregating $14,464 of which consideration paid by Littlejohn applied payment cash toward the first ques- satisfaction of the the land represented tion, principal note, $8686 and the balance of thereon, by Littlejohn and held accrued interest owned and secured by a on the which question, second deed of trust concurrently delivery satisfied of record with the of the trust was conveyance Littlejohn. weight deed of an was the then reasonable value was that acre market evidence 159i/¿ tract, fact, price such did not exceed some- if, acre *28 sub- of that tract. We believe there is what the then value upon find- evidence, say least, predicate which to the the stantial as Little- trial chancellor to the defendants ings judgment and of the john. Mutual In- Connecticut Life Johnson and defendants
As clearly defendants shows those Company, the evidence surance bank, Handly’s or indebtedness to the knowledge of no actual land. The loan of in the any plaintiff of of claim Company Insurance Mutual Life Connecticut the defendant security home-place tract of faith and apparent good then in James to which tract was title acres, the record of 166.18 judgment will direct a equity, we being one A. Greer. This cause case, one equities of views of conformity with our pur- equities innocent or titles wise disturb which will in no 206 Mo. Sugg, Francis Mill Co. v. [St. chasers encumbrancers. 148, 171.]
787 If. is urged, however, by defendants Handly and III. the home-place tract of 166.18 acres, more less, or situate in Section 18, Township 48, Range 25, constituted the homestead
and that the statute makes such exempt homestead
attachment execution; wherefore, plaintiff other bank, creditors as beard, any complain conveyance or well, will sale not of such though purpose homestead, effect of such even or con- sale in fraud of such creditors. veyance be 1919) (Sec. 5853, provides R. S. that “the statute homestead
The housekeeper every family, consisting dwelling or head of of a therewith, and the used connection appurtenances, house and shall, limited, . . exceeding value herein . the amount and not products thereof, exempt from be rents, with the issues together execution, except provided; as herein such homestead attachment sixty country one hundred and not more than in the shall include dollars; fifteen hundred land, the total value of or exceed acres prevent as nothing shall be so construed . herein contained . . alienating mortgaging, conveying, jointly and Avifefrom the husband part homestead, or any disposing any of such other manner ’1 thereof. repeatedly held ap It has been court and by the courts peals, conveyance defendants, contended of a statutory by the owner thereof is not as to homestead fraudulent homestead, since such creditors of the OAvner homestead exempt under the such creditors statute, from execution and hence right complain disposition, conveyance legal sale have no 501; Lewis, v. 252 Peterson, 256 Mo. Armor v. thereof. [Pocoke 81; Smith, Smith, 464; 183 v. 167 Mo. 568; v. Mo. Rose Mo. Stam 682; Bank 338; 131 Mo. Childers, Byrd, Mo. v. v. Macke Creech Claywell Spradling (St. A.), L. 189; v. C. Guthrey, 127 v. Mo. has also determining homestead, value of the In S. W. 960.] existing mortgage encumbrances the amount of
been ruled that
land,
value
from the
first
deducted
thereon must
be
so
redemption; and the statute
equity of
assigned in the
homestead
207;
Brown, 171 Mo.
1919;
R. S.
Houf
provides.
[Sec.
at.
S.
Claywell
Spradling,
fondant James A. Greer, Unit lie is entitled to reimbursement for the interest and taxes aforesaid Voluntarily paid by him. In dis posing of a like in contention, Implement we held, Co. v. 143 Jones, 253, 281, Mo. that the doctrine of subrogation, or reimbursement, holding by cannot be grantee invoked one title as under a mortgage fraud of grantor creditors in the deed. And Fry, so in Bank v. 24, 35, quoted Mo. we approval following Kuykendall from v. McDonald, Mo. l. c. 420: “When a creditor, by fraud, attempt will to defeat the claims of other credi tors, hardship there is postponing no his demand, although just one, to which those he has endeavored Corpus to defeat.” In 27 Juris, 673, the established rule is thus stated: “Where the convey ance is founded actual fraud, grantee general as a rule is re garded pariiceps crimmis, as a and is not entitled to reimbursement conveyance or to any purpose have the stand for of reimbursement ’’ indemnity, either for the consideration or for paid. advances foregoing announcement of the text-writer is amply supported by the judicial authorities of this and other states, cited text. in the appears It from the herein evidence principal unpaid general accrued mortgage interest of the rep- indebtedness by resented and against secured the three deeds of trust the entire conveyed by property real and his wife to defendant James (which property place Greer real included the home 166.18 acres, less, more or and also the tract of acre land afterward 159% conveyed by sold and James A. Greer Littlejohn), to defendants aggregate, amounted, $42,954 5, to the sum of on October conveyance 1923, the date of the fraudulent from and wife Greer, $42,954 purported which said sum constituted the con- conveyance for fraudulent sideration from wife A,. appears It James Greer. also evidence that the herein paid Littlejohn, entire consideration defendants conveyance of the acre tract sold to them 159% applied payment actually used and toward re- general mortgage $42,954 existing duction indebtedness place against both the home tract of acres October 166.18 Littlejohn. to the acre tract sold defendants 159% aggregate' general mortgage Deducting $23,150 indebted- from the $19,804, latter remains the sum of which sum $42,954, ness of there may fairly equitably represent- taken to be assumed and 5, 1923, existing on October amount of encumbrances home-place acres, 166.18 apportionable tract of con- 48, Range 25, which latter tract 18, Township situate Section assumption Handly. just We make the the homestead of stituted ($23,150) paid consideration stated the reason
789 by Littlejohn conveyance the sale and of the acre 159% proportionate tract of land exceeded part the share or general of the mortgage ($42,954) apportionable indebtedness to said tract of 159% Littlejohn By Greer, acres sold to then equitably such excess, speak- ing, applied general shоuld be in reduction mortgage of the indebted- apportionable place ness acres; to the tract of home 166.18 other- wise, Greer, participant as a in the fraudulent transaction and con- veyance of both tracts between himself and Handly, per- would be (to profit injury plaintiff bank) by mitted allowed to the of the Littlejohn. of sale the acre tract to In other an active words, 159% participant conveyance in a permitted fraudulent should never be thereby profit by injury creditor, to the of a defrauded whether subsequent property of fraudulently conveyed, sale the entire by subsequent only part property fraudulently sale of the con- veyed. equitable principle think, This rule and so we plain, require juristic support no in In- citation of authorities thereof. (Sec. 1919) 5855, requires that, asmuch as the statute R. S. ascer- taining' (on determining the whether value of the homestead 5, 1923) (the home-place $1500 October tract maximum the exceeds statutory mortgage value), homestead the amount of the encum- (on 1923) 5, brances first deducted from thereon October must be tract, follows, therefore, as the home-place of the value (the determination, maximum basis of such the amount statutory value) (the must added to amount of homestead be mortgage existing 5, apportion- 1923, encumbrances on October against making amount home-place tract), aggregate an able represents statutory $21,304, which latter homestead amount exemption home-place 166.18 Handly, tract of defendants acres, thereon exist- plus the amount of the encumbrances ing 5, appears 1923. It from the record October also acres, the by six or more home-place area, tract some exceeds in the a homestead by maximum acres fixed as the area statute of the country. whether the value order, therefore, In determine Handly’s $1500 statu- home-place 1923, exceeded tract on October therein, mort- plus the amount tory exemption homestead the. $21,304), (which amounts gage addition encumbrances thereon home-place of the entire necessarily fair value the reasonable and as- 5, 1923, must be less, October of 166.18 acres, tract more or can- value court, such and, circuit certained and determined court circuit not be and determined ascertained action, then original trial which adduced on the evidence .was evi- further hear additional the circuit court shall receive and determined (so ascertained bearing If dence thereon. the value acres, 166.18 tract home-place court) of entire the circuit less, more or situate Section Township 48, Range 25, in La- fayette County, on 5, 1923, October exceeds the sum $21,304, then plaintiff herein shall adjudged be to have a lien, for the amount unpaid judgments and plaintiff demands of against defendants said separate (home- and entire *31 place) land, of lien, tract which however, subject shall be in- and ferior present to the lien of the of record, trust of No- dated vember 8, 1923, securing payment promissory of the A. note of James principal Greer for the of $9000, payable sum to the Connecticut Company years 1923, Life Insurance five after November 8, Mutual together any unpaid with and principal accrued interest on said sum, subject and which lien shall also be and in inferior to lien favor $1500, of said James Greer in the sum of which latter conveyed is statutory sum the maximum value of the homestead A. Greer Ilandly; said'James defendants and it shall further adjudged, be ordered and decreed said circuit court home-place land, in whole said tract of Town- 18, of situate Section Range Lafayette right, ship 48, County, together all 25, Myra title and interest therein of the defendants M. re- them, E. and each and of James A. of their spective pay- heirs, devisees, grantees assigns, be sold however, lien, subject, to the plaintiff’s ment and satisfaction of said thereof, present and the lien trust, said encumbrance and deed of Company, and Mutual Life Insurance in favor Connecticut James of said subject in the sum of favor also to said lien fair value hand, If, the reasonable on the other Greer. acres, October home-place less, tract 166.18 more said court, does by the circuit and determined as so ascertained being an excess but, nevertheless, $21,304, there the sum of not exceed statutory home- maximum above the over and in area said tract court, allow acres, event, shall circuit 160 area of stead his court file in said circuit James A. Greer permit the said acres, de- 160 designation of the and selection written irrevocable by him as integral body, selected in an bounds metes and scribed said conveyed by defendants statutory homestead said or, or failure the refusal event of Greer; James selection, then designation and written to file such A. Greer commissioners disinterested appoint three shall court circuit the said acres, said of. and boundaries location and fix the out. to set action doings and of their report body, and make integral, an approval confirmation subject court, circuit said tract home-place said in area of the excess court, said circuit purpose be sold then shall 160 acres above said over and of, upon, reduction and in of such sale net applying uroceeds plaintiff’s lien, said claims and demands, subject, however, to the present encumbrance and deed trust, and tbe lien thereof, in favor of the Connecticut Mutual Life Insurance Company. judgment nisi, therefore, will be reversed and the cause will
be remanded to circuit court for further proceedings in accord- ance with the views and directions herein expressed, and with direc- tions judgment also to enter in favor of the defendants, John T. Littlejohn Mary Lillian Littlejohn, ordering' dismissal of the action said last named defendants. It is so ordered.
Lindsay Ellison, GG., concur. PER foregoing opinion CURIAM: —The C., of Seddon, adopted opinion judges All the court. concur. *32 Railway Frank Company, W. v. Clift St. Louis-San Francisco Appellant. (2d) S. W. 972. July Two,
Division 1928. notes by secured said second deed -of trust was paid by the defendants Handly prior year to the 1923. $8000 note sеcured said second deed of trust was sold, assigned and by plaintiff transferred for value bank August on 8, 1922, to defend- ant John T. Littlejohn, who note, said assignee held as and owner thereof, payment until its on or about October 1923. 29, The other $2000 note secured said second deed of trust sold, assigned was plaintiff transferred value bank May 1919, 16, to one H. C. Thee, assignee who held said note, as thereof, owner until payment its about 29, 1923. During October all the times mentioned, Littlejohn herein both and Thee were plain- directors of July tiff bank. On Myra defendants M. Handly wife, IIandly, E. his executed and delivered a third deed of trust July which was land, filed for record on 27, 1923, in favor William A. Greer, deceased, administrators of estate of beneficiaries, payment an $7000 to secure the indebtedness of owing by claimed Ross M. to be defendant to said estate. Myra Handly, E. William A. Greer the father of defendant during the Greer, and died defendant James brother to show William May. 1923. The evidence tends month of, for, plaintiff behalf bank and on borrowed William A. Greer had delivered M. son-in-law, Ross his plain- in that amount. The therefor plaintiff his own note bank demand $7000 as said note for bank presented tiff paid upon deceased, and the of William estate by Ross M. execution concurrently with the said demand
Notes
notes several and the 29, 1923.
notes promissory seller; if the de- part transaction lent purchase buyer, made the Greer, the ostensible fendant, James knowledge fraudu- of the conveyance with and took assist w'ith the'intent part seller purpose on lent fraudu- then it w'as a purpose, of such accomplishment him the defendants, and the sale part both transaction lent rights sub- bank, unless plaintiff: as to aside set be should land have intervened. [Gust purchasers innocent sequent and