144 Mo. 192 | Mo. | 1898
This is a proceeding in equity to set aside a conveyance from Stephen J. Burnes and wife to Grace Sibbald, their daughter, of lots 10 and 11 of block 22 of Robidoux addition to the city of St. Joseph, Missouri, and to subject that property to the payment of a judgment for $1,558.08 in favor of the plaintiff and against Stephen J. Burnes, on the ground that the conveyance was fraudulent and intended to hinder, delay, cheat and defraud his creditors.
The evidence consists of the testimony of the grantee, Mrs. Sibbald, the grantor, Stephen J. Burnes, the notary who took the acknowledgment of the deed, ánd'of Calvin Burns (not related to the defendants) as to the financial dealings between the grantor and the National Bank of St. Joseph and the Ayr Lawn Company, and the judgment in favor of the plaintiff against Stephen J. Burnes.
The plaintiff having called the grantor and grantee, as witnesses on the question of fraud in the conveyance, there is no conflict of testimony in the case. The facts, briefly stated are these: In 1891 Stephen J. Burnes was heavily indebted. He owned the property in dispute, which was worth $1,500. His son-in-law, the husband of Grace Sibbald, lived at his house and worked for him. The daughter claimed that her husband gave her $600 which he received from some unexplained source when he became of age that year, and she put it in her father’s hands for safe keeping, intending to invest it in the stock of a building and loan association. Sometime before December 24,
This being a proceeding in equity where the witnesses testified orally, we defer somewhat to the findings of the chancellor. Chouteau v. Allen, 70 Mo. 336; Erskine v. Loewenstein, 82 Mo. 309; Springer v. Kleinsorge, 83 Mo. 159; Berry v. Hartzell, 91 Mo, 138; Bushong v. Taylor, 82 Mo. 666; Mathias v. O’Neill, 94 Mo. 520. However, as was appropriately said by Sherwood, J., in Benne v. Schnecko, 100 Mo. loc. cit. 258, “but by such remarks we are not to be understood as meaning that we are concluded by the finding of facts by the court below; far from it. Such remarks do not mean that we have abdicated our supervisory control over questions of fact in equity causes; they only mean that when there is conflict of testimony, or where the testimony is evenly balanced and the finding of the chancellor appears to be correct, then we will so far defer to his finding as to sanction it by our affirmance; 'that and nothing more.;” The same rule was enunciated in McElroy v. Maxwell, 101 Mo. 308, and by Gantt, J., in Ryan v. Dunlap, 111 Mo. loc. cit. 618.
We are unable to discover upon what theory the learned chancellor dismissed the bill. The vague, uncertain, shuffling and evasive character of the testimony
The burden of proving fraud is always upon the party alleging it. State ex rel. v. Hope, 102 Mo. 410. A father when in failing circumstances may honestly prefer his child, if one of his bona fide creditors, and this fact does not, of itself, furnish evidence of fraud, but the relationship is a fact to be considered with the other circumstances. Van Raalte v. Harrington, 101 Mo. loc. cit. 608. In this case, when coupled with the cir'cumstances surrounding the transaction and the manner of testifying of both parties to the deed, they lead to but one logical conclusion — a purpose by the grantor to cover up his property and to save this much from the wreck of his fortunes, and a participation in this purpose by the grantee, which is fraud in law.
The decree of the circuit court is reversed and the cause remanded for further trial in conformity herewith.