New England Loan & Trust Co. v. Browne

FOX, J. As was said by the distinguished judge in the case of Lins v. Lenhardt, 127 Mo. 271, “This cause is, to a large extent, a fact case.” As to the jurisdiction of the court, the appropriateness of the decree, so far as- disclosed by appellants’ brief, is not controverted, if the facts as indicated by the record warranted the finding of the trial court. There appears to be no dispute as to legal propo — 423 — sitions, so ably and fully presented by counsel for respondents; at least, after taking leave to file a reply brief, we find none presented. Hence, we will not burden this opinion with a review of the authorities cited by respondents’ counsel; but will content ourselves by giving attention to what seems to be the only disputed question: Was the testimony sufficient to warrant the decree as herein indicated ? . We fully recognize the rule as urged by.appellants, that fraud and collusion between the appellants will not be presumed, and the burden was upon the respondents, in the trial court, to reasonably satisfy the chancellor that they existed. We also fully recognize the duty of appellate courts, in equity cases, to supervise the decrees of the trial court, to the end that they may ascertain that its judgment is clearly in keeping with good conscience and justice. There is also another rule, equally well settled, in respect to the deference paid to the finding of the chancellor. "While this latter rule should not interfere with the power of the appellate court, to supervise the judgment of the trial court, and occasion this court to lessen its strictness in scrutinizing the findings of the chancellor, yet the action of the trial court should not be absolutely ignored; but that due and. appropriate consideration should be given to such findings to which they are entitled, under the well settled rules, as announced by this court. In the case of Snell v. Harrison, 83 Mo. 651, in respect to this rule, the court said: “It is well settled in this State, that the finding of the chancellor will be deferred to by this court, unless he has manifestly disregarded the evidence. ’ ’ Sherwood, J., in the case of Mathias v. O’Neill, 94 Mo. l. c. 530, very emphatically announced the custom of this court. He said: “If the evidence were more evenly balanced, the custom of this court to defer some — 424 — what to the trial court- in matters of fact, where the advantages of the latter tribunal are so great in regard to observing the manner and demeanor of the witnesses, would lead us to concur in the conclusion reached by that court, unless some cogent reason should lead us to depart from our usual way. ’ ’ To the same effect is the announcement in the case of Jamison v. Bagot, 106 Mo. 240. It is there said by this court: “We ought to defer somewhat to the finding of the court below, even if the fact was in some degree in doubt as to how it ought to be decided. ’ ’ It was also said in the case of Parker v. Roberts, 116 Mo. l. c. 667: “It is the well settled rule of practice in this court in equity cases that while the conclusions of fact drawn by the trial court from the evidence are not taken as conclusive, but will be reviewed and reversed if thought to be erroneous, still much deference is given to their findings on account of the superior advantages they possess for weighing the evidence and judging of the credibility of the witnesses.” This rule is very aptly stated by Barclay, J., in Short v. Taylor, 137 Mo. l. c. 525: He said: “This court has constitutional power to review the facts as well as the law in a suit in equity, triable by the court. [Hunter v. Whitehead, 42 Mo. 524.] But we should be satisfied, in a ease turning on the credibility of persons who appeared at the trial, that the preponderance of evidence is against the result reached on the circuit before we announce a different one here.” In the cases cited, the rule is very positively announced, as well as the reasons upon which it is based. The circuit court, doubtless, in reaching its conclusion in this case, took into consideration the relationship of the appellants. Not only this, but also, as the evidence discloses, the intimacy and harmony existing between the two brothers; the fact that their relations were such, in financial deals, that they kept no accounts, their absolute reliance upon the integrity of each other. — 425 — The chancellor took the rational view, that appellant, John Browne, was not in the habit of dealing in tax certificates, that the brotherly affection furnished the mainspring of his solicitude to secure this tax certificate. They were partners in the real estate business; lived for a long time upon this property; and there was no change in the condition of things after the purchase of the certificate. In addition, to this, the conclusion of the chancellor, that appellant, John Browne, was not acting the part of an entire stranger, and independent purchaser of this certificate, is emphasized by the testimony of Phelps, an absolutely disinterested witness, that at the time of the sale of the certificate, „G-allagher said Browne wanted it for some friend. The respondents held a mortgage on this property occupied by William Browne. It in terms, provided he should assume the burden of paying all the taxes. In law, as well as in equity, and good conscience, it was his duty to comply with this undertaking. His br other, the principal contesting appellant in this case, had full knowledge of these facts. Was it an illogical or unwarranted conclusion that he was, in this transaction, not acting independently for himself, as he says, for an investment, but in collusion with and for the protection of his brother, who unhesitatingly says that he expects to continue the legal contest for this property? While, as a matter of law, the court could not presume such collusion, yet it must be noted that collusion or fraud is seldom susceptible of positive or direct proof; and it is indisputable, in determining such questions, the chancellor has the right and it is his duty, to carefully consider the entire surroundings of the transaction, the relationship and conduct of the parties, and then make such reasonable inferences as all the facts warrant and justify. Not only a brother, but a full partner in dealing in real estáte, the brother deeply interested in valuable property, living in the same house upon the premises in dispute, occupying the same — 426 — business office, frequently discussing the situation in respect to this property, keeping no accounts between each other, sixty or seventy dollars required to relieve a burden, which under the deed of trust, rested upon the brother William, the brother John Browne furnishes this sum of money, and secures an assignment in blank of the tax certificate, afterwards his name is inserted as the assignee — what would be the natural inference from such a state of facts, considered in connection with the other circumstances surrounding the transaction? We have reached the conclusion that the decree as rendered by the trial court answers the inquiry. The record discloses that William H. and Johnk Browne spoke of the board of the latter being applied to the payment of rent; but the record is absolutely silent as to any contract or even a conversation relative to the further occupancy of the property by William H. Browne. The premises were occupied as before; there were no changes whatever, not even a suggestion of a change of the conditions, subsequent to the acquiring of the tax certificate. No impartial mind can view this transaction, make all the natural and legal inferences, without reaching the conclusion that the action of John Browne was prompted by the commendable and natural influence to protect the interest of his brother in the premises in dispute, and that they acted in concert. The trial court had the appellants before it, heard all the testimony, and reached the conclusion that while apparently John Browne released the burden of taxes upon this property, that was simply the appearance of the transaction; in reality, he was simply acting in collusion with his brother', and the burden, in fact, was released by William H. Browne, who, under his contract, had assumed that liability. After a careful consideration of all the facts, we find no “cogent reasons” disclosed in the record, for — 427 — reversing or modifying the decree in this canse. It will be affirmed, and it is so ordered. Gantt, P. J., concurs; Burgess, J., absent.