*1 Help but mislead and jury, ipsa confuse the in a res case, (infer) right presume have the negligence from the facts shown evidence.”
Oúr conclusion is that the court should1 have sustained the motion ground giving for new trial this erroneous instruction and granting Ferguson the order the new'trial is affirmed. Hyde, GO., concur. foregoing
PER opinion by. CURIAM: —The Sturgis/ C., adopted opinion judges All the court. as the Jay Oldham, Error, Anna L. K. Jessie Mc Kay Defendants in Error. S. W. M. Nesbitt, Lida
483. One, July 9,
Division 1935.* Opinion September Term, 1934, April *NOTE: filed at the 17. rehearing filed; May Term, July 9, motion for motiоn overruled at *2 Oldham, Jay L. error. *3 Sawyer
Lathrop, Crane, Reynolds, & for defendants in Mersereau error.
HYDE; a deed on C. This an action in aside ground hinder, delay plaintiff, and made to defraud >a was judgment plaintiff’s At the close of evidence defendants creditor. ground that his evidence the dismissal of bill on the moved equitable relief. court any "he was entitled to showed that dismissing motion, judgment and a sustained this entered granting defendants affirmative relief. has bill and certain of brought the this writ error. case' before court - commenced a showed that had suit Plaintiff’s' evidence Wright July 1925, 27, grantor Anna K. against defendants’ 3, 1918, pay plaintiff alleged agreement -March written of her resulting in $1200, monthly payments $25, for services obtain- belonging to and 99-year property her ing a lease of certain matter; Wright Mrs. attorneys’ that had fees another $350 for term, setting up September, 1925, the Statute of filed answer at- grounds upon which want of consideration and other Limitations, void; that agreement was and and had null claimed n obtáined 12, 1929, $1765 on December in this for judgment 1929, December, at the term. It Wright appear Mrs. failed to when September hаd, Mrs. on Wright con- further that was shown Jessie, lived, which she property, in veyed the residence placed deed was on McKay Nesbitt; M. this record and Lida that that its consideration was day'; stated “one on next that deed subject considerations;” that it was mаde valuable dollar and other given mortgage secure a $2000' note unpaid on to an balance assumed'by grantees. was $3500; this incumbrance for 'September, 1923, sub- purchased Mrs. jeet to this same was stated in incumbrance and consideration $18,000. Plaintiff, obtaining judgment against her deed to be Wright, Mrs. garnishment had an execution issued and made there- Fidelity Bank, nothing under of the National but obtained thereon and the execution was returned “not satisfied.” Plaintiff then com- menced this suit March - sixty-six years old at the she made the deed August n to defendants. She died and the case was dismissed grantees as to her. The will be hereinafter referred to as the defend- ants. McKay was Defendant a first cousin of Mrs. Jessie years prior had lived with her twelve deed was made. forty-four She wаs a school teacher, years old, then employed City year. the Kansas salary $2200 schools at the per salary Her had been increased so that per $2900 at time of the trial it was year. M. Lyda Defendant Nesbitt was a second cousin Mrs. Wright. She had bеen taken when she was six years brought up by years old and thirty-six old, her. She was made, employed time the deed was and was as children’s worker in Presbyterian salary $70 Church at per-month. At the time salary per the trial her increased to month. had been Prior making dеed,' with to the of the defendants had lived family paid They bought members of her her no board. bought things
own clothes and sometimes other wanted and they paid places. They for tickets when went were both called as. they by plaintiff witnesses and their that when evidence showed the deed Mrs, agreement was made them were care lifetime; through McKay, having largest her that Miss income, paid grocery- and interest and the taxes three-fourths *4 bills; bill; paid Wright the smaller Mrs. still that Miss Nesbitt that taxes, receipts interest and оther were- pay went bills and the always money. name; that made in her but defendants! furnished the assuming responsibility Their further showed evidence supporting Wright paying taxes, Mrs. and the interest for and Miss University get in York McKay went to school at Columbia New a earning her dеgree in order to increase as a capacity Master’s school pend- teacher; did not know that had a that defendants not learn of against and did it until after he ob- ing Mrs. Miss Nesbitt a judgment; knew that there had been con- tained plaintiff, thought and but that troversy Mrs. she between what it Defendants’ estimate of cost been settled. them for it had year. per $600 Wright’s support was about Mrs. made, light, water, gas the electric
After deed was and tele- Wright’s along in name and she ran Mrs. phone bills attended to money. defеndants furnished this Mrs. paying them money own who however,' paid with her houseman lived over the 174
garage prepared meals, bought and and some of her own clothes. Defendants said Mrs. pay was allowed to bills because all that. busy daytime were during occupations, both at their long-time and because had of Kansas resident City “it 'her save some humiliation” be allowed to continue pay bills, and that “it Miss was to- save her embarrassment.” McKay Wright’s condition, said also that Mrs. financial the time was-made, very beеn,” the deed ‘-‘was much reduced from-what it had had pay $1800 but that she sufficient to a claim of at the deed; time she made the. in and “she owned some property Casper (Wyoming), .light stock, and she had electric some and she Irving-Pitt had some something bank, . .. . abоut $800 in cash.”- money sold the stock used the She.had trial, Wright’s At the expenses died. .time funeral had been paid and no administration been' had her estate.. owned the no other prop- furniture but left erty.- eight rooms, sleeping The house had. porch furnished McKay story. place eight third Miss valued the at between and-ten built; only thousand dollars.. had evidence had been years, or thirteen ordinary about twelve and that its value under $15,000 $16,000. $8,000 was about There was fire in- .conditions house, defendants, on the taken out in name оf surance mortgage. held -the -of first which was owner sustaining The chancellor erred in defendants’ motion to dis bill, at the evidence, plain close of miss prima showing tiff made a facie sufficient him to entitle part in the absence of further equitable relief evidence on the showing only Plaintiff’s was that the -defendants. consideration for conveyance, except assumption mortgage an of a of from one- of the property, agreement one-fifth the value an fourth to not, against grantor’s support. existing This future a valid consideration for the creditors, the substantial property. considering question Several cases may 2 Ellis, v. A. L. R. 1429-1433 in Merithew Smith be found L. R. Clark, Rendering Martin, 23 A. and Consolidated Co. v. Many exhaustively A. L. R. 790. authorities are also 64 collated and annotations following these A. L. discussed R. cases. [Notes 584; see, also, 530-31, R. C. L. L. R. sec. J.C. A. ] secs. 214-218. following propositions: authorities sustain These to- (1) effect of such grantor create- trust for *5 puts beyond it the property so that he reach in his of creditors own enjoys of time the benefit it the same himself. and at conveyance (2)- transfers all or such a part the substantial of If property, so that he does not retain grantor’s sufficient property the existing against existing debts, to his is valid credi- satisfy it no more voluntary conveyance. tors than a
(3) though grantee good in Even acts the faith and has no knowl- necessary edge any grantor, yet, of indebtedness of the if effect the actually delay creditors, of is to hinder and the lack the transaction cоnveyance grantee.’s will of the intention to do so not alone the make setting conveyance prevent to creditors from aside. valid so as sup- of (4) conveyance If based consideration future after support grantee good actually faith furnishes in an port, conveyed greater equal to than the value of the property amount conveyance him, it becomes an valid consideration executed aside, it cannot set creditors ... (5) grantee good If the fаith, knowledge has of acted without existing indebtedness, has, conveyance, actually after the. fur- substantial, to, value, support valid nished and, conveyance may* aside, grantee extent while is en- be preference property titled to а in the over other creditors to the extent support of the furnished him. by
(6) grantee good participated If the has not faith has acted grantor hindering delaying purpose with the for the credi- his tors, attempting beyond their reach when it put propеrty then, though grantor,, is in held as a trust for the even fact secret .conveyance grantee, support actually has furnished thereby. grantee nothing is void and the is entitled to have . showing plaintiff prior here is to the
The equal, support which suit, had not. been furnished would be suggested most, as much as one-half of the minimum value property. shown, of the Nor was it as defendants con clearly conveyance. tend, solvent after this that Mrs. remained showing prima made a facie that the When making, .showing creditors, а further delay hinder and the burden it prevent sufficient that the value of the retained 797, J. having sec. from that effect shifted defendants. [27 724.] C. enough pay general statement that she had a.claim obligations or show her what her $1800 at actual solvency nothing when died. was. as to She condition [See .It further May Mo. S. W. is now Gibler, 319 v. 769.] had a homestead in the by respondent contended convey. right which she had the $3000, property of the value How 127 Mo. S. W. Guthrey, of Versailles 1004.] [Bank the, pleadings or at trial. made in the such claim was no ever, there long purchased place claims that she appears It shown, nothing to trace and there to him was created her debt homestead, existing any former proceeds it into R. Secs. debt. creation [See *6 84; Poplar see, also, Peck, 877, 288 S. App. Daniels v. 221 Mo. W. If App. 636, Trust 31 W. Bates, Bluff Co. v. Mo. S. 93.] prove retrial, they plead and upon to so show should desire right, .which was had a homestead in the Likewise, priority if desire they claim. entitled to over equitable relief, their answer so they should amend affirmative they they clearly claim that are "entitled will show what "relief to have. guilty laches be plaintiff
It is further contended that commence this suit until about three and" one-half cause he not However, years conveyance reсorded. the after the had been made "or any part of was future did not state that its consideration or it deed plaintiff this. and there is no- evidence that knew support [See In Null, fact, 233 Mo. 134 W. the continua Walther S. 993.] embarrass appearances of the same outward to save tion keep knowing it. tend to him others from More ment' agairist prior plaintiff á suit over, "did"have judgment for some the was made but did not obtain to deed this, bring a very not well suit set aside could to time thereafter. He judgment. might He disputed сlaim was to until- his reduced deed attachment, this have, by but is a somewhat perhaps, proceeded judgment remedy attempt grounds such before dangerous guilty not he was laches he did not hold that we would say" that Mrs. had meritorious de do so. Defendants judgment against her, Upon which obtained the suit fense to collaterally plaintiff’s judgment therein cannot attack but directly," have attacked case. It could been this if, contended, brought equity, now record suit, pleadings up judgment issues which making upon could did not show rendered, point time to obtain plenty be there was "of raise might ing ón writ error. The court also have asked review a judgment judgment expired. term aside Execu to set the levy made before the commencement tion was issued and term, judgment term. Mrs. sеems have next preferred upon execution, as a défense to the rely rely suit" stated in her than to defense answer. rather merit, judgment case, If is indeed a is without hard neglect, of so, partly if it is due to either defendants grantor, matter is in such condition. "Hоwever hard that the may spoil symmetry of . . case, the law. . ‘It is we justice duty care, general good all take for the courts ” community, that hard do not bad cases make law.’ [Seilert McAnally, 505, l. v 223 Mo. c. W. Since the record 1064.] aside, even if the be must de- doеs tend show rights property, we think- they be to some may entitled fendants fully develop matters. an these opportunity have should Ffirguson judgment reversed and the cause remanded. OC., Sturgis, *7 by Hyde, C., is opinion adopted
PER foregoing CURIAM: —The judges All opinion as the the court. Corporation, Appеllant, Company, Gardner
Globe Securities Gardner-Paup Corporation, Inc., Motors, Company, Motor Brokerage and Motor Corporation, Company, Inc., Sales (2d) 561. W. Corporation. One, July 9, 1935.* Division Opinion September Term, 1934, April filed at *NOTE: 17. motion rehearing filed; May Term, July motion overruled at