Gentry v. Field

Buegess, J. This is a proceeding in equity by creditors of John Ellis, deceased, whose demands were allowed against his estate and classified by the probate court of Boone county before the beginning of this suit, for the purpose of having set aside and held for naught, as fraudulent as to his creditors, a certain warranty deed from him to his grandson, John E. Field, conveying four hundred and nine acres of land in said county. After the suit was instituted Mrs. Amanda E. Field was made a party defendant. She entered her appearance and adopted the pleadings of her son, John E. Field, as her own. Pending the suit in the circuit court Mrs. Field died, and the cause was revived in the name of John E. Field, her executor, and also in the name of John E. Field and Lizzie D. H. Field, her only heirs at law, legatees and devisees, all of whom entered their appearance and' adopted the pleadings of defendant John E. Field. The trial resulted in a finding and judgment for plaintiffs in accordance with the prayer of the petition, from which defendants appealed. The petition alleges that no consideration passed for the land, and that it was conveyed by John Ellis, deceased, to John E. Field, for the purpose of hindering, delaying and defrauding the creditors of said Ellis, of which John E. Field had full knowledge and was a party to the fraud. The consideration expressed in the deed was $2,000, while the land was worth at the time of the — 407 — conveyance about $7,000. It was, however, encumbered by judgments and county school fund mortgages aggregating from $2,600 to $2,700. This deed was executed on April 20, 1894, but was not recorded until July 2, 1894, which was after the death of the grantor. The land conveyed was the homestead of John Ellis upon which he had resided for many years, but at the time the deed was executed he was at the home of his daughter, Mrs. Amanda Field, in Denver, Colorado. On the same day of the execution of the deed John E. Field executed.a declaration of trust in favor of his mother, Amanda Field, in which it is recited that in consideration of $2,000 received by John Ellis of Amanda E. Field, and divers other good and valuable considerations, said John Ellis, wishing to reimburse and compensate Amanda E. Field for said sum, had conveyed, to him, John E. Field the land, etc., involved in this litigation in trust for her. This declaration of trust was kept a secret until the day of trial, when it was produced and read in evidence by defendants. By the deed of John Ellis he conveyed all of his real estate to defendant John E. Field, for the use and benefit of his daughter Amanda. He was at the time the deed was executed of the advanced age of eighty-nine years and insolvent. Defendants knew at the time of the execution of this deed that Ellis was financially embarrassed. On the twenty-eighth day of April, 1894, John Ellis 'made his will, in which John E. Field was named as executor, and to whom he gave all of his personal property in trust to secure his creditors, and empowered him to make deeds. The will also provided that the remainder of his property after the payment of his debts should be held in trust by John E. Field for the testator’s daughter, Mrs. Field. To this will a codicil was added on May 12, 1894, in which he appointed W. O. Brooks, of Boone — 408 — county, Missouri, agent for Ms executor to transfer Ms personal property to Ms creditors according to directions which he gave him. On the same day, May 12, 1894, the testator executed a power of attorney to W. C. Brooks conferring upon him the power to make deeds and perfect title to land sold by Ellis to Edmond Little, of Boone county, and to transfer a number of notes which he held on different persons to certain of Ms creditors. Ellis died on June 19, 1894. His personal property was little more than sufficient to pay the expenses attending the administration of his estate. At the time of the execution of the deed by John Ellis to John E. Field, Mrs. Field held two notes on her father, one for $500, dated June 30, 1869, executed to Thomas M. Field, her husband, upon which there were no indorsements and which John E. Field testified was transferred by his father to his mother in 1889. The other was for $1,000, payable to Amanda Field, dated April 4,1888. John E. Field testified that these two notes and a loan of $500, made by his mother to her father in December, 1890, made up the consideration expressed in the deed. Henry B. Babb, a witness for defendants, who prepared both the .deed and declaration of trust, testified that, in addition to the expressed consideration of $2,000 in the deed, Mrs.. Field assumed and agreed to pay a debt owing by her father to John Conley for $730, one to Boone county for $240, and one to Tip Bass for $400. But neither one of these creditors knew anything about the assumption by Mrs. Field of their debt until the declaration of trust was introduced in evidence atthe trial, and thereafter payment of them was refused. Upon the other hand the evidence on the part of plaintiffs tended to show that the $500, which it was claimed by defendants that Mrs. Field loaned to her father in December, 1890, was in fact a gift to her father as a birth — 409 — day present. The note for $500, held by Mrs. Field against her father, had been barred by the statute of limitations for many years before the execution of the deed. Plaintiffs read in evidence over the objection of defendants from the records of'the probate court of Boone county, the certificates of allowance under the hand and seal of the judge of that court, showing that a large number of claims, including those of plaintiffs, amounting to the sum of $11,555.80, had been allowed against the estate of John Ellis, deceased, and in this it is insisted that error was committed. By section 191, Revised Statutes 1889, it is provided: “The probate court shall have jurisdiction to hear and determine all suits and other proceedings instituted against executors and administrators upon any demand against the estate of their testator or intestate, and of all offsets and other defenses allowed by law, set up thereto by the administrator or executor, and a concise entry of the order of allowance, or finding, shall be made on the record of the court, which shall have the force and effect of a judgment.” By section 4881, Revised Statutes 1889, it is provided that the records of proceedings of any court of record of this State, attested by the clerk thereof, with the seal of the court annexed if there be a seal, or if there be no seal with the private seal of the clerk, shall be received as evidence of the acts or proceedings of such court of record in’ any court of this State. The certificates of the judge of the probate court are not copied into the record, so that it is impossible for us to determine whether they were in proper form or not. If they were, they were admissible in evidence both for the purpose of showing that plaintiffs were judgment creditors of the estate of J ohn Ellis deceased at the time of the commencement of this suit and also that — 410 — his estate was insolvent and as the certificates are not copied in the record, the presumption must be indulged that they were in proper form. This is but invoking the familiar principle that he who asserts error must prove it. There is no merit in the contention that error was committed in admitting in evidence the inventory of the estate of John Ellis. It was clearly admissible for the purpose of showing what property he owned at the time of his death. It is perfectly clear from the evidence that the deed from John Ellis to his grandson, John E. Field was not voluntary, for whether a full and fair consideration passed from Mrs. Field to her father for the land or not, there was a valuable consideration, and in such circumstances the deed was not voluntary. “A voluntary conveyance is a conveyance without any valuable consideration. The adequacy of the consideration does not enter into the question. The character of purchase or voluntary, is determined by the fact whether anything valuable passes between the grantor and grantee, as a consideration for the transfer. If there is a valuable consideration, no matter how trivial or inadequate, the conveyance is not voluntary.” Bump on Fraudl. Conv. [3 Ed.] 267. The evidence showed that the note for $1,000, given by John Ellis to Mrs. Field in April, 1888, and the note for $500, executed by Ellis in 1869, to John H. Field and by him transferred to his wife, made up in part the consideration expressed in the deed. But plaintiffs claim that the $500 note was barred by the statute of limitations and was of no value. The defense of the statute of limitations is a personal privilege of which Ellis might have taken advantage had he chosen to do so, but the law does not prohibit a man from paying an honest debt if he chooses, notwithstanding all legal remedy thereon be barred by — 411 — the statute. The debt in question seems to have been an honest one, and as Ellis agreed to liquidate it in part consideration for the land, he had a perfect right to do so. The evidence as to whether or not the $500, sent by Mrs. Field to her father in December, 1890, and which also was included in the expressed consideration for the land, was a loan to him or a birthday present, left that matter somewhat in doubt, but the weight of the evidence we think showed that it was a loan. The statements of John Ellis in the presence of the witnesses Peter H. Ellis and H. B. Craig that it was a birthday present was not permissible as evidence against Mrs. Field for the purpose of showing that fact and should have been excluded. Her rights could not be affected by any statements made by her father, not in her presence. Beside, the evidence showed that this $500 was taken into account by John Ellis as a part of the expressed consideration for the land, and in this way recognized by -him as'-a loan and not as a gift. But as this case was heard by the court sitting as a chancellor, we will not reverse the judgment upon that ground, but consider the case as if no such evidence had been introduced. The notes read in evidence, and the $500 loaned by Mrs. Field to her father, formed the expressed consideration for the land, which including interest amounted to several hundreds of dollars more than the consideration expressed in the deed. There were also at the same time two school mortgages on a part of the land which amounted to about the sum of $1,816.76, and a judgment lien in favor of one Conley for about $730. The deed was of course subject to these liens. But we think it clear from the evidence that Mrs. Field did not assume the payment of the Conley judgment nor the Tip Bass debt as part of the consideration for the land, otherwise these creditors would — 412 — have been informed of this arrangement before the trial of this cause, and her representatives would not thereafter have refused to liquidate these debts, nor would her father after the execution of the deed to her have made provision for their payment. But aside from those debts the consideration passed for the land was not so inadequate as to justify of itself the court below in setting aside the deed, but it does not thence follow that there are not other facts and circumstances disclosed by the record which justified that result. We do not think, however, that any importance is to be attached to the fact that the deed was not recorded for some months after made, nor to the fact that the declaration of trust in favor of Mrs. Field was not disclosed until the trial of the ease. We have no statute requiring such instruments to be recorded within any specified time, and it is only in case that fictitious credit has been given to the grantor, upon the faith of the ownership by him of the property conveyed, and that by withholding the deed from record some one has been misled to his injury, that failure to record will be held to be fraudulent, and no such state of facts exist in this case. Bank v.. Buck, 123 Mo. 141; Bank v. Doran, 109 Mo. 40; Bank v. Frame, 112 Mo. 515; Bank v. Bohrer, 138 Mo. 369. But these were facts and circumstances connected with the execution of the deed to Mrs. Field, any one of which taken alone would be entitled to but little consideration, but when taken altogether tended strongly to show a fraudulent purpose on the part of John Ellis to defraud his creditors and that both Mrs Field and her son John E. Field were aware of his intentions, and were parties to the fraud. Mrs. Field did not surrender the notes which she held against her father at the time of the execution by him of the deed to the land, which were a part of the purchase price therefor. This was somewhat out of the — 413 — ordinary way of doing business, and her production of them to be used upon the trial of the cause looks as if she was anticipating a lawsuit at the time, and retained the notes in her possession m order that they might be used as evidence in such an event for the purpose of showing her father’s indebtedness to her. So with respect to the note which had for so many years been barred by the statute of limitations. As her father was insolvent, she could never, considering his advanced age and insolvency, have hoped to realize anything upon it, yet it and interest thereon were a part of the consideration for the land. We do not wish to be understood as holding that John Ellis did not have the right to pay this demand, though stale as it was, yet when it is considered that he conveyed all of his real property to his grandson for the use of his daughter in payment of this and the other demands held by her against hiin to the exclusion of all his other creditors, it tended we think to show a purpose on his part to defraud his creditors. We think it makes no difference if the deed was made with intent to defraud his creditors, that John Ellis after its execution undertook to provide by will or otherwise for the payment of some of his other creditors by the transfer to them of notes which were worthless, or even if they were upon solvent persons. If the deed was fraudulent when made, it could not thereafter be purged of the fraud as to his creditors, by any act of his. When the failure of Mrs. Field to surrender the notes of her father which were paid by the conveyance of the land, the payment in the same way of a note which had been barred by the statute of limitations for about fifteen years, the inadequacy of the price paid for the land, the insolvency of John Ellis the grantor, and the relation of the parties, are considered, there is no escape from the conclusion .that the deed was made by — 414 — John Ellis for the purpose of defrauding his creditors, and that Mrs. Field and John E. Field were parties to the fraud. What has been said is in accordance with the conclusion reached by the trial court to whose rulings we usually defer in such cases. We have not overlooked other questions of minor importance raised by counsel for ’defendants in their brief, deeming it unnecessary to do so. From these considerations we affirm the judgment. Gantt, P. J., and Sherwood, J., concur.