145 Mo. 91 | Mo. | 1898
This is á proceeding in equity to declare void certain conveyances of real estate in Lafayette county, from Joab Worthington to Joseph L. Youngs, and to subject the same to the payment of the plaintiff’s judgment.
The facts essential to the determination of the case are these: Prior to April, 1893, Joab Worthington owned one hundred and fifty-seven and four-fifths acres of land, worth $40 an aere. Lie was reputed and believed to be solvent and his credit was good. On the eighteenth day of April, 1893, he indorsed a note for $1,550, made by his son-in-law Brown to the plaintiff, payable sis months after date. On the twenty-seventh of April, 1893, he indorsed a similar note for $500, payable at five months after, date, and on the twenty-eighth of June he indorsed another like note for $500,
On the fifteenth of November, 1893, Worthington conveyed fifty-seven and four-fifths acres of land to his attorney John Welborn, who at the same time conveyed it to Eliza J. Worthington, Joab’s wife. There was no consideration 'for this transfer and its purpose is admitted to have been to vest the title in Mrs. Worthington.
On the seventeenth of November, 1893, Joab Worthington went to the bank and informed its officers that Brown was not able to pay his note, and proposed to deed to the bank sixty acres of his land in discharge of his and Brown’s indebtedness of $2,550 to the bank. Two of the directors of the bank went to see the land that day to decide as to whether the bank would accept the proposition. When they reached the place Worthington withdrew his proposition, but proposed to let the bank have the sixty acres for $2,800, and to apply $2,550 in discharge of the debt and pay him the difference. The directors arranged to meet him the next day to determine the proposition. Worthington did not keep the engagement; so the bank, brought suit that day on the two notes first described, had the summons served on Brown at once, and on Worthington about 10 o’clock that night.
On the seventeenth or eighteenth of November, 1893, Youngs and Worthington met at Aullville and rode home together. Youngs had been trying for several years to buy Worthington’s land, but was willing to give only $40 an acre, while Worthington demanded $50. Worthington owed Youngs about $1,500, and while riding homeward Youngs told Worthington he had heard that he (Worthington) had deeded a part of his land to his wife, and that he (Youngs) wanted a deed of trust to secure his debt. Worthing
On the twenty-seventh of December, 1893, plaintiff obtained against Brown and Worthington, a judgment on the two notes previously sued on, and on the twenty-seventh of January, 1894, instituted suit against Worthington and wife, Welborn and Youngs to set aside the conveyances and subject the land to the payment of its debt. On the fourth of April, plaintiff obtained judgment on the third note described. The equity case was tried in July, 1894, and it appeared that the three notes amounting to $1,500 Youngs held against Worthington were for borrowed money; that the $2,500 cash paid, was made up of $1,600 Youngs had on hand in his home, cash accumulated from the sale of cattle since the July previous, and $900 he borrowed from his son Elmer, who was also a farmer and stock dealer; that the notes for $1,200 at thirty days and $1,080 at sixty days were paid at or before maturity, before the institution of that suit, and before Youngs knew that Worthington was indebted to the bank. Upon this showing the plaintiff took a voluntary nonsuit, but immediately instituted this suit, having a like purpose. Joab Worthington and wife, in the meantime, had removed from this State and before
Appellant showed that the name of the grantee and the consideration in both the deeds from the Worthingtons to Youngs were written in different ink from the remainder of these instruments, and contends that they were materially altered after delivery.
The circuit court dismissed the bill and plaintiff appealed.
I. Upon this showing the fraud of Joab Worthington is boldly apparent. His upright life and business integrity doubtless prompted his visit to the bank and his theretofore unsuspected' honesty suggested the plan of turning over sixty acres of his land to the bank in payment of his debt. True, he concealed or failed to disclose to the bank that two days before that time he had, by mesne conveyances, transferred about a third of his land to his wife. But even that would not have been fraudulent, as the one hundred acres he still owned, valued at only $40 an acre, was more than sufficient to
But, however clear Worthington’s fraud may be, the conveyances can not be declared fraudulent, unless Youngs knew of Worthington’s intent to defraud his creditors and participated in it. Van Raalte v. Harrington, 101 Mo. 602; Nat. Tube Works Co. v. Machine
Plaintiff’s main contention seems to be that it is so highly improbable that Youngs had $1,600 in cash in his house or that his son had $900 in cash in his house, that a presumption of fraud flows from such statements of Youngs. Standing alone it is not evidence of fraud. We do not know judicially where people keep their •cash. Generally, it is considered safe to deposit all over that needed for immediate use, in a bank or in some safe depository. But even that is not always safe. Even banks sometimes fail. Youngs statement is uncontradicted that he intended buying the Anson farm, if he could not get Worthington’s, and that he kept this
Plaintiff has embodied in the record a fac simile of the two notes given by Youngs for the deferred payments, and contends that they furnish evidence of fraud, in that, from their shape and contour there is not room enough for a signature to have been attached to them. There are no signatures to the reproduced notes, but the jagged appearance of the lower portions of the notes, rather conveys.the impression that the name had been torn off the notes, which is not an uncommon method of mutilating a note that has been paid.
It is contended that Youngs failure to produce the testimony of Worthington “is a strong fact against him.” Worthington was alive, though absent from the State, when the first case was tried, but died before service could be had upon him in this case. “Ordinarily the circumstance that a particular person who is equally within the control of both parties is not called as a witness, lays no ground for any presumption against either.” Kerstner v. Vorweg, 130 Mo. l. c. 201.
Plaintiff further contends that the name of the grantee (Youngs) and the consideration, were written
We -have thus at-great length set out and reviewed the facts, circumstances and contentions in this case, and after the closest scrutiny have been unable to find any evidence of fraud, notice of fraud or participation in fraud on the part of the grantee, Youngs, and we therefore affirm the judgment of the circuit court.