Mabary v. McClurg

Henry, J. In 1865 the defendants presented an account, and obtained an allowance, against the estate of John Mabary, deceased, for $10,925, in the county court of Hickory county, and, to satisfy the same, the administrator of said estate, Jas. R. Wilson, procured an order for the ■ sale of lands belonging to said estate, and sold them at [591] private sale to the defendant McClurg. This suit was instituted by the heirs at law of said John Mabary to set aside said judgment and sale for fraud in procuring them, and the petition alleges that the administrator confederated with defendants to cheat and defraud the estate, the latter by procuring and the former by 'permitting, without resistance, the allowance of the demand, which they all knew to be unfounded. The fraud is circumstantially stated in the petition. There was a trial of the issues by a jury, which resulted in a verdict and judgment for plaintiffs, from which defendants have appealed. There was abundant evidence tending to establish the fraud. The administrator testified to the contrary, but it is impossible to reconcile his testimony with his conduct. The claim was for an amount exceeding the value of the entire estate, and the administrator was urged by heirs of the intestate to spare no expense in contesting it; yet he employed no attorney, introduced no testimony, and even failed to cross-examine a witness introduced for plaintiffs, who now testifies that, if interrogated, he would have testified to facts exonerating the intestate from any participation in the alleged robbery of plaintiffs’ store at Linn Creek. The evidence warranted the verdict of the jury, but if it were more evenly balanced, we would not be inclined to disturb the finding, inasmuch as the jury and the court had the witnesses before them, and were far more competent than this court to determine the degree of credit to which the witnesses respectively were entitled. One fact is worthy of note: Two of the defendants testified in the cause. The other, McClurg, was neither a witness nor present at the trial. In Eck v. Hatcher, 58 Mo. 239, the fact that Hatcher, who was charged with having purchased land of which Eck had been defrauded, with knowledge of the fraud, failed to appear and testify when summoned as a witness for plaintiff, was regarded as a strong circumstance against him. Henderson v. Henderson, 55 Mo. 534; Cass Co. v. Green, 66 Mo. 498. And although [592] McClurg was not summoned as a witness by the other side, he was a competent witness and could have appeared and testified in his own behalf. Johnson and Torbert, his co-defendants, who had no interest in the land purchased by McClurg, at least were not known in the purchase, were called as witnesses for the defense, and this makes the silence of McClurg more conspicuous and significant. "We would not go outside of this record to east any imputation upon McClurg. It may be, and from his reputation for integrity we would be inclined to believe, that he had reasons for not appearing as a witness on the trial, which would utterly destroy the inference to be drawn from his silence; but while we neither can nor would travel out of the record to find matter of accusation against McClurg, neither can we for matter of exculpation. .If innocent of the charges against him, it is to be regretted that he did not appear at the trial, and on his oath aver that innocence. Judge Sherwood having been of counsel in the county court did not sit in this case. All the other judges concur in affirming the judgment Motion for rehearing overruled.