Miller v. Leeper

120 Mo. 466 | Mo. | 1894

Sherwood, J.

The evidence in this case is sufficient to justify the decree rendered, and no reason. is disclosed why the conclusions reached by the lower court are not correct; there was certainly ample evidence from which those conclusions could be drawn, and, besides, the trial, court had the witnesses before it, and could for that reason more fairly judge of their credibility than can we; indeed it may be said that on the principal ground, on which the decree rests, there is no dispute as to the testimony, to wit: the great financial embarrassment, if not the actual insolvency, of Zebulon T. Knight at the time the purchase of his title in this litigated property at the tax sale occurred; that such property was worth some $2,000, and yet was bid in by his wife at a little over ten per cent, of its value, who obtained the purchase money to buy it in, by giving her own note, and then securing that note by creating an incumbrance on that very property, her husband assisting her to do so; by joining her in the execution of the deed of trust! Facts so pronounced as these, so salient in their characteristics of a design to defraud creditors, can not be hidden or concealed behind such a commonplace and hackneyed subterfuge. These facts speak for themselves.

Nor is the 'situation altered by the fact that subsequently, Emeline Tate by her legacy of $200 forgave Dorothy Knight a portion of the debt. The effect of this was just the same and ho greater than if Dorothy Knight after executing that note and receiving the money therefor, had found $200, in the street, and had applied such windfall in part discharge of the note;' for the fact would still remain that she obtained the $250, which bought in the property, out of the property itself, and not otherwise or elsewhere. The legal effect of obtaining the $250 by such means is to all intents and purposes, precisely the same as if Zebulon T. Knight, the husband, had taken it out of his pocket or had executed his individual promissory note, secured by a deed of trust on his own property, and then handed the proceeds of that note to his wife to buy in the same property at a tax sale! If the sole purpose was to save the land from being sold for taxes, the husband could have raised the money by making an incumbrance on the land himself, as well as by joining his wife in the deed of trust; but in that case, there would have been no apparent transfer of title to the ivife. Enough of this.

In regard to the alleged homestead rights of defendant Samuel Z. Knight, it suffices to say that the homestead law of 1875 applies here; that the mother being dead, we shall assume that said defendant was not a minor when the court entered its decree against him, as he was present and testified in court as a witness; we will not conyict the lower court of error on mere surmise or conjecture. Furthermore, since that act went into operation, the widow and children only take a limited estate and not a fee as formerly, so that there may be a fraudulent conveyance now of a homestead by the party entitled thereto, so far as concerns the fee after the expiration of the limited estate. Schaeffer v. Beldsmeier, 107 Mo. 314.

Nor do we see any reason to complain of plaintiff’s laches in this matter; surely his failing to resort to his equitable proceeding has not resulted in working any detriment to defendant Samuel Z., nor does it appear that it has induced him to change his condition to his, hurt in consequence of plaintiff’s failing to act sooner. Besides, plaintiff’s right in this instance is clear; the testimony shows the precise nature of the transactions which preceded and attended the tax sale, and therefore the lapse of time has not prejudiced the interest of defendants, or caused their case to appear differently than it would have appeared had equitable relief been invoked at an earlier date, by plaintiff. And certainly plaintiff’s claim is not barred by the statute; for only about nine years bad elapsed from tbe time bis judgment was classified in tbe probate court before tbis proceeding was instituted.

For these reasons, believing it to be correct, we affirm tbe decree of tbe lower court.

All concur.