85 Mo. 224 | Mo. | 1884
— Bates & Buehler (Geo. Bates and R. E. Bnehler), merchants at Mill Spring, Wayne county, became indebted to A. F. Shapleigh & Company and to R. X. Wilkinson, and to others. Upon the dissolution of the firm, so Bates claimed, Buehler assumed and agreed to pay those debts ; but Buehler afterward went through bankruptcy, leaving the debts unpaid. “Bates & Bro.” and “ Bates & Co.,” two names for the.firm composed of the brothers, George and Samuel A. .Bates, ■ succeeded Bates & Buehler. This firm and George Bates individually, became largely indebted. Geoxge had the management of the business, and Samuel, who was a doctor, was off at a medical school. George telegraphed to Samuel to return home immediately, which Samuel did, and on January 2, 1875, George transferred to him the store and book accounts and notes and some other property, the consideration being that Samuel should pay the debts of Bates & Bro. and Bates & Co., estimated at $4,664.36. In August, 1875, George executed to Samuel a" warranty deed to certain real estate for a consideration, as specified in the deed, of nine hundred dollars. Prior to this, in February, 1875, suits were begun in the Wayne circuit court upon the Shapleigh & Company and the Wilkinson demands. Judgments were rendered in these suits in April, 1876. Upon these, judgments, which were against George Bates and R. E. Buehler, executions issued ; the real estate conveyed by George to Samuel Bates in August, 1875, was levied on, and in October, 1876, sold; plaintiffs were the purchasers and received a sheriff’s deed therefor. This action was brought to set aside the warranty deed to Samuel A. Bates, as being voluntary and made and accepted to defraud the creditors of Geo. Bates. '
The evidence shows that George Bates dealt largely in lands as well as merchandise. He was resolved never to pay the debts of Bates & Buehler, claiming that he had once paid them in his settlement with Buehler ; and he so expressed himself to a number of persons. He
Plaintiff appealed.
In equity proceedings, a demurrer to the evidence is, perhaps, novel. But if the petitioner makes no case, .the chancellor need not call upon the other side for a showing ; he may at once dismiss the bill. And sustaining a demurrer to the evidence may not, under our practice, be an objectionable method of doing this. But ‘this appeal depends upon another question. Under the pleadings and the plaintiffs’ evidence, should the defendant have been required to furnish some proof of the honesty and good faith of his purchase? George and’Samuel Bates had been intimately associated in business. And, they were brothers. Upon Samuel, at the instance of
Plaintiffs’ evidence suggests the propriety of an explanation by the other party, who could tell the whole story. Such a suggestion of unheeded equity will swell into a demand. Then silence becomes pregnant with inferences. Cass Co. v. Green, 66 Mo. 512; Baldwin v. Whitcomb, 71 Mo. 658 ; Mabary v. McClurg, 74 Mo. 591. But we would not infer too much against this defendant, for the court thought there was no occasion for his testifying, and that may have been the only reason why he did not take the stand.
The talk of George Bates could not defeat the title of Samuel Bates, but what George said and did is pertinent as tending to show a fraudulent purpose in disposing of his property, and the facts of relationship and association in business may support the inference that Samuel was not ignorant of such purpose.
The court erred in dismissing the bill, and its judgment should be reversed and the cause remanded.