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    ROBERT H. CRUMP, Appellant, v. EMMA W. WALKUP et al.
    Division One,
    November 30, 1912.
    1. HUSBAND AND WIFE: Purchase of Property: Presumption that Money Belonged to Husband. The presumption that land purchased during coverture and deeded to the wife was paid . for by the husband, originated under the common law governing marital relations, which gave to the husband all of the wife’s personal property and the issues, profits and rents of her real estate, and denied her the right to contract for the purchase of other property. But the condition which gave birth to that presumption was abrogated by our Married Woman’s Act (Secs. 8304' and 8309, R. S. 1909), which gives to the wife the power to contract, acquire personal and real estate, engage in business in her own name, and sue and be sued, and pro- • vides' that' all such property, and all property acquired by her separate labor or business, together with all increase and profits thereof, are her separate property, and not liable for her husband’s debts.
    2. -:.-: -: Overcome by Evidence: Fraudulent Conveyance. Such presumption is overcome by evidence show- ' ing that the ■ husband was himself insolvent, both before and 'after the "purchase of the land deeded to her, and that all the money either had was derived from the natural increase, of pigs and "poultry given her by a relative, which she used to support the family, and from the sale of cordwood cut from a piece of land which she bought on time, and sold at such a price as to pay for the chopping and hauling and for the other lands bought by her. Such land cannot be taken to satisfy judgments against her husband rendered prior'to the acquirement of the land.
    3 -: Fraudulent Conveyance: Fraud: Depositing Money in Another’s Name. The wife authorized her husband to sell her poultry, eggs, stock and cordwood, and deposit it in her name. He would deposit in his uncle’s name “by” him, using the full name of the uncle, and his own initials only, thus, “John W. Young, by J. H. W.” When she had agreed to purchase a tract of land and was ready to pay for it, he would, by his check, signed in the same way, transfer it to her, and she would draw her check in favor of the vendor. She testified that she knew nothing of this manipulation of her account and ¡Kwer heard of it until the trial, and her testimony was not contradicted. , Neither was it shown that the husband at any time had any property of his own, and all the evidence, so far as it goes, is to the effect that the money so deposited was obtained by selling her personal property. Held, that there was no such fraud as would authorize a holding that the money was the husband’s.
    4. --: -: -: -: Concealment: Bank Officer: Presumption. The officers of a bank who have charge of its books and accounts are presumed to know their customers and tq whom the funds deposited in the bank belong. And where the plaintiff, who sues to have deeds to the wife set aside as fraudulent on the ground that it was the husband’s money which , paid for them, was a director of the bank at all times the husband deposited, in the name of his uncle “by” him, using his initials/the money obtained by selling his wife’s, personal prop- ’ erty, and for two years prior to bringing the suit was the bank’s ' president, the usual rules as to concealment do ncit apply; but . whether he was actually familiar with the manner- of making the deposits is wholly immaterial as bearing on the issue of fraud, since no man who wished to perpetrate a fraud on a ■ bank president or director would have deposited the money in the bank in such a manner.
    5. -: -: Mortgaging Wife’s Personalty: Evidence of Ownership. The fact that the husband with the wife’s permission, or without her knowledge, mortgaged her live stock, is no evidence that the stock belonged to him. It might be evidence against him, but none against her ownership.
    6. -: -: Giving in Wife’s Property to Tax Assessor: Evidence of Ownership and Fraud. The fact that the husband gave'to the tax assessor for assessment a list of personal property claimed by the wife, as his own, is an admission by him that he owned it, but is not an admission against her unless she had knowledge of it. And even if she knew that it had been assessed as his, it is not conclusive evidence of fraud, and will not authorize the court to declare as a matter of law that the property belonged to him.
    Appeal from Monroe Circuit Court. — Hon. David H. Eby, Judge.
    Affirmed.

      Ezra T. Fuller and James P. Boyd for appellant.
    (1) The fact that John H. Walkup and Emma W. Walkup were husband and wife at and prior to the date of the obtaining- of the original judgment by the appellant herein against the said John H. Walkup and that the land in controversy was purchased during coverture, being admitted or, at least, uncontroverted by the evidence in this cause, the presumption is that each and every tract of land in controversy was paid for by John H. Walkup', the husband. Lins v. Len-hardt, 127 Mo. 289; Seitz v. Mitchell, 94 U. S. 580. This principle has been uniformly held by this court. Ryan v. Bradbury, 89 Mo. App. 665; Sloan v. Torry, 78 Mo. 628; Patton v. Bragg, 113 Mo. 601. (2) Except where the burden is upon plaintiff because of particular allegations in the complaint, the general rule is that in a contest between the creditors of the husband and his wife, if the wife claims ownership- of the property by a purchase during coverture, the burden of proof is upon the wife to show that the purchase was for a valuable consideration by her out of her own separate estate or by some person other than the husband. 20 Cyc. 754; Bank v. Wind, 132 Mo. 87; Balz v.' Nelson, 171 Mo. 689; Johnson v. Christie, 77 Mo. App-. 53. (3) If one is able upon an analysis of the evidence in this case to determine definitely what the contention of the respondents is, it would lead to the conclusion that the basis upon which the start and principal sum, the accumulations of which resulted in a sufficient amount to purchase the land in controversy, came by reason of a gift of poultry from J. "W. Young to Emma W. Walkup, and that such gift, if any, was by parol. It may be conceded that separate estate in personal property may be created in a married woman by a parol gift, but the rule in this State is that where it is claimed that the estate of a married woman had its beginning in personal property by a parol gift, the evidence as to such gift must be clear and positive and free from any suspicion of fraud. Holthaus v. Horn-bostle, 60 Mo. 442. The evidence of this parol gift does not meet the requirements of the law of this State. to show it to have become the separate property of the wife. Roberts v. Walker, 101 Mo. 001; Bank v. Simpson, 152 Mo. 59; State ex rel. v. Bank, 10 Mo. App. 482; Hoffman v. Nolte, 127 Mo. 120. Nor does it rebut the presumption of fraud in such instances. Snyder v. Free, 114 Mo. 369. (4) To permit an insolvent husband, having creditors, to systematically and. continuously give his wife practically all of his earnings and to allow the wife with these gifts to acquire in her own name and her own separate use, personal property and hold it exempt from the just demands of the creditors of her husband, when if the same property had •been acquired directly by the husband, it would have been subject to levy, would work a gross fraud upon the husband’s creditors. Johnson v. Christie, 79 Mo. App. 51; Wolfsberger v. Mort, 104 Mb. App. 261.

      Whitecotton & Grimes and Frank W. McAllister for respondents.
    (1) Sec. 6869, E. S. 1889, was the statute in force in 1893 when respondents moved to the John W. Young farm. Under its provision, the poultry “turned over” to respondent Emma W. Walkup by John W. Young, became and remained “her separate property” and “under her sole control.” (2) Appellant’s contention that an intention on the part of J. W. Young that the property should become the separate property of Emma W. Walkup-, “to the exclusion of her husband” was necessary, is without merit. Ilgenfritz v-. Ilgenfritz, 49 Mo. App. 137; Goldsmith v. Taussig, 60 Mo. App. 46-2; Broughton v. Brand, 94 Mo. 174. The evidence very clearly indicates that the poultry was not turned over to Emma W. Walkup by Young as a gift, but was part of the consideration for her taking charge of his house, making him' a home, doing his cooking, washing, ironing and mending, in fact, boarding him; but whether it was a gift or part of the. consideration for services rendered Young by Mrs. Walkup, is immaterial. The statute makes no difference between property acquired by gift or purchase. In any event, the poultry and the “income, increase and profits” from it became and remained the separate property of Emma W. Walkup. (3) By the terms of the statute (See. 4349, R. S. 1899') the first eighty aereé bought became and remained the separate property of Mrs. Walkup, and the same statute preserved to her, as her separate property, “all income, increase and profits” therefrom. The other tracts of real estate having been bought with “the income”'and “profits” from the first tract, they, as well as the first tract, were purchases “with her separate means” and remained her separate property and are not “liable to be taken by any process of law for the debts of her husband.” R. S. 1909, Sec. 8309; Baker v. Campbell, 32 Mo. App. 155. (4) It was but natural that her husband should have looked after the stock, fed them, taken care of them, acted as her agent in the business transactions, and that he should have assisted in cutting and hauling the cordwood. As said by him, she was not expected “to go out in the cold arid feed, and me lay around and sleep with the dogs.” The statute contemplates that the husband will use, occupy, care for and protect the separate property of Ms wife, and provides that his nse, occupancy, care or protection thereof shall not be deemed to invest Mm with any rights therein, and provides expressly that it shall remain the separate property of the wife unless by the terms of assent in writing full authority shall have been given by the wife- to the husband to sell, incum.ber o.r otherwise dispose of the same for his own benefit. No such authority was shown or claimed in this •case. Until Mrs. Walkup, in writing, gave him full authority to sell, incumber or otherwise dispose of it for his own use and benefit, it remained her separate property. Bank v. Winn, 132 Mo. 87; Broughton v. Brand, 94 Mo. 174; Winn v. Biley, 151 Mo. 66; Bog-ers v. Bank, 69 Mo. 563. Neither John H. Walkup, nor his creditors, acquired any sort of interest in or claim upon Mrs. Walkup’s real estate or personal property by his expenditure of time and labor in its care, protection or improvement, and this is especially true as a large part of the income from her property was used for the family, support. Seay v. Hesse, 123 Mo. 459;. Bank v. Adair, 172 Mo. 166; Jones v. Hogan, 135 Mo. App. 363; Fink v. McCue, 123 Mo. App. 317; State ex rel. v. Jones, 83 Mo. App. 157; G-runer v. Scholz, 154 Mo. 424. (5) It is apparent from the evidence of both respondents that Mrs. Walkup understood all •the time that John H. Walkup was depositing the proceeds of sales of her cordwood, stock and other property received by him, to her credit in the' bank under, her own name. By depositing her money to the credit of the account of “J. W: Young by J. H. W.” he, at least, became- her ■ debtor to the extent of the •money so deposited. This was a valid indebtedness which he had the right to pay to her, although he was insolvent. Bank v. Winn, 132 Mo. 87; Winn v. Biley, 151 Mo. 67; Grocery ■ Co. • v. Ballenger, 137 Mo. 375; Smith v. Settle, 128 Mo. App. 383.. Although insolvent, Walkup had the right to pay the debt to his wife even in preference to other creditors, including the plaintiff, and she had the right to accept payment of it, and neither were guilty of any fraud. Hart v. Leete, 104 Mo. 337. (6) Mrs. Walkup has clearly shown that the real estate in suit was purchased with her separate means, and has shown in detail the sources from which she derived the means. This overcomes the legal presumption that the real estate was paid for with her husband’s means, and it devolves upon appellant to show the existence of any fraud which will vitiate her title and subject the real estate to the payment of his judgment. 20 Cyc. 754; 6 Ency. Ev., p. 93. Transactions between husband and wife will be closely scrutinized by the courts, but they are not presumed to be fraudulent, and if found to be fair and honest, will be upheld the same as transactions between other persons. Jones v. Hogan, 135 Mo. App. 363; Seay v. Hesse, 123 Mo. 464; Gruner v. Scholz, 154 Mo. 424.
   WOODSON, J.

This is a suit in equity instituted in the circuit court of Monroe county by the plaintiff against the defendants, seeking to set aside and for naught hold, six certain deeds, executed by various persons, conveying as many tracts of land situate in said county, to defendant Emma W. Walkup, wife of defendant John H. Walkup, and to subject said lands to the payment of a certain judgment for $958.20, dated October 29, 1898, based upon two promissory notes, one dated May 22, 1891, for $32 due one day after date, bearing eight per cent interest, and the other dated August 9, 1892, for the sum of $700, bearing the same rate of interest, in favor of the plaintiff against the defendant John H. Walkup>, upon the alleged ground that the purchase price of said lands was owned and paid by John H. Walkup, the husband and the title thereto was taken in the name of Emma W. Walkup, Ms wife, for the purpose of hindering, delaying and defrauding Ms creditors.

The record in the case is qrnte voluminous, covering about two hundred and fifty printed pages. To state even the substance of the testimony of the various witnesses would unnecessarily prolong the statement of the case, and the opinion wMch is to follow. We will, therefore, do the nest best tMng wMch the nature of the case will permit, and that is, to briefly state what the evidence tends to prove, and then emphasize the weak and strong points in the case, and point out the evidence wMch tends to corroborate ox disprove the same.

In passing, however, we might add, that the evidence in - this case, like that in most of its Mnd, is largely drawn from the lips of the defendants, and consequently there is not much conflict in the testi-, mony, but the deductions to be drawn therefrom and the rules of equity govermng the same greatly vary, and constitute the real grounds upon which the respective parties to the action stand, and upon which they'wage the legal battle.

The following tracts of real estate constitute the .land in controversy and were acquired by defendant Emma W. Walkup from the following named persons, upon the following dates and in consideration of the following sums, to-wit: Eighty acres from Julia E. Mudd, by deed dated April 10, 1902, in consideration of $350 paid and a pair of old mules valued at fifty dollars; four and seven-tenths acres from Edward H. O’Daniel, by deed dated February 8, 1906, in consideration of forty-seven dollars; forty acres from William M. McCreery et al., by deed dated November 10, 1906, in consideration of $510; 113 acres from John W. Young, by deed dated March 7, 1907, in consideration of $3390; forty acres from Samuel M. Locke, by deed dated June 20, 1907, in consideration of $200; and forty acres from Tilomas F. Hurd et al., by deed dated July 1, 1907, in consideration of $275.

Emma W. Walkup never inherited any property ..from her father or any one else, nor did she own any property at the time of her marriage to John H. Walk-up, nor at the time they moved to the farm of John W. Young, to be presently noted.

All of this land, except the 113 acres, was very .rough and broken, covered with small timber and brush .and was unfit for cultivation, only valuable for grazing purposes.

At the time of the trial the 113 acres were worth thirty dollars per acre, and all the .remainder was worth about ten dollars per acre.

Mrs. Walkup borrowed from a Mrs. Glenn the ■entire $350, with which she paid for the Mudd tract and secured the loan by deed of trust on the land. She paid Mrs. Glenn said $350 on November. 10, 1906.

The entire purchase price of the 113 acres, $3390, was borrowed by Mrs. Walkup from the Bank of Stoutsville, and she secured the same by a deed of trust on that and all the other land mentioned, which .cost her about $1600. None of the $3390 so loaned had been paid at the date of the trial.

Prior to July, 1893, John H. Walkup had been engaged in the live stock and livery business in the little town of Florida, Monroe county, at which time he failed, and practically all of his property was taken -by his creditors and sold to pay his debts, leaving about $3500 of indebtedness unpaid.

In July, 1893, defendants moved to the farm of John W.' Young, an uncle of John H. Walkup-. • At that time his entire possessions consisted of a cow, an old pony, a second hand wagon, a set of buggy harness,-the family household and kitchen furniture, and -eighteen head of mules which were mortgaged to said .John W. Young for more than they were worth, and afterwards sold for several hundred dollars less than the amount of the mortgage. The cow died shortly after they moved to Young’s farm: The household and kitchen furniture was worth about fifty dollars,' the harness twenty dollars, and the pony fifteen dollars.

John W. Young was an old bachelor and lived aloné when defendants, moved to his farm. Emma W, Walkup after moving there kept house for him, did his cooking and all other duties pertaining to the household. In other words, all of them lived together as one family, defendants paying no rent and Mr; Yoiihg paid no board.

When defendants went to live with Mr. Young he turned over to Mrs. Walkup' all the poultry which was then on the farm, and gave her the use of nine good milk cows. The next year Mrs. Walkup added to the poultry some turkeys, geese and ducks, but just how many is not shown. John H. Walkup had nothing to do'with the poultry,'except at times to assist his wife in marketing the same. She used a part of the proceeds of the sales of poultry in supporting the family, and a part of the proceeds were deposited in her name in the Bank of Stoutsville.

At one time Mrs. Walkup exchanged some ducks to Lon Hughes for a pig, which, with its increase, was kept on the farm for several years. From those came the stock of hogs which was on the farm.at the date of the'trial, which at all times belonged to Mrs. Walk-up. A few years prior to the date of the trial, John H. Walkup, as the agent of Mrs. Walkup traded some -of the hogs tó a man by the name of G-reen for a small bunch of sheep, and from this start the sheep on the 'farm at the date of the trial sprang. None of the sheep ever belonged to her husband. About this same time,'Mrs. Walkup, out of the proceeds of the sales of poultry, eggs and butter, purchased a small bunch . of black heifer calves, the number not stated.

' Prom the time defendants moved upon the farm of Mr. Young, up to April' 101, 1902, the date of the purchase of the first piece of land by Mrs. Walkup, John H. Walkupi, her husband, was doing general farm work upon the farm.

The farm was largely in grass, except a small piece of timber. Neither of the defendants cultivated any of this land, but John H. Walkup rented and cultivated a piece of ground adjoining and raised small crops thereon for a year or two.

Mr. Toung permitted John H. Walkup to cut some wood from the piece of timber on his land, which from time to time he hauled to Stoutsville and sold for $1.50 per cord. The proceeds of those sales were expended for living necessities.

Some time prior to April 10, 1902, a man by the name of Turnbaugh owed Mrs. Walkup a board bill, and in settlement thereof he gave her a mare “pretty badly crippled.” Later she traded the mare to a Mr. Gaston for a mule, and gave him ten dollars “to boot.” The ten dollars was hers, the proceeds of sales of turkeys and chickens: and later she sold more turkeys and chickens, from which she realized twenty-five dollars, and purchased therewith another mule.

In the spring of 1902, Mrs. Walkup purchased the first tract of land, eighty acres, from Mrs. Mudd, and paid for the same with the $350 she borrowed from Mrs. Glenn, and the two mules last before mentioned. This land was covered with small timber, the big timber having been cut off years before. Shortly after purchasing it she began to fence and clear the land. She cut therefrom between eight or nine hundred cords of wood and sold most of it at $3.50 per cord. John H. Walkup did part of the chopping and hauling of. the wood to market, but the greater part thereof was done by hired labor and the cost thereof was paid from the proceeds of the sale of the wood. This wood was cut and sold between the years 1902 and 1907. Part of the proceeds of the sale of this wood and the sales of poultry, eggs and butter provided the largest part of tlie living expenses for tire family. Most of the live stock and its increase was kept on the farm, but occasionally a few hogs were sold on the market.

For some time prior to 1902, down to the date of the trial, Mrs. Walkup had an account with the Bank of Stoutsville. All the land purchased by Mrs. Walk-up was paid for by checks drawn on her account in said bank, signed by her.

She testified that all the money received from the sales of her poultry, eggs, butter, live stock and wood, except what was paid out for family expenses, etc., was deposited either by herself or by her husband to her credit in said bank.

This testimony of Mrs. Walkup is contradicted by the books of the bank. They show that there was another account kept in said bank under the name of J. W. Young by J. H. W.” The deposits in this account were rather frequent and were for considerable amounts, and were made by John H. Walkup and the checks against this account were usually drawn by him. John H. Walkup frequently without the knowledge of his wife, deposited money arising from the sale of poultry, stock and cordwood, belonging to her, in the account of “ J. W. Young by J. H. W.,” and whenever Mrs. Walkup purchased a piece of land, John H. Walkup would, without her knowledge, draw a check against the account standing in the name of “ J. W. Young by J. H. W.” and deposit it in said bank to the credit of Mrs. Walkup', and she would draw a check against her account in said bank in favor of the person from whom she had purchased the land, in payment thereof. In other words, John H. Walkup<, without the knowledge of his wife, would, when selling her property, collect the proceeds of the sales and deposit them to the account J. W. Young by J. H. W.,” and whenever she purchased a piece of ground he would draw a check against said account and deposit it in said bank to the credit of his wife, and then she would draw her check against her account in favor of the .person from whom she had purchased the land. She had no knowledge of this shifting of accounts made by her .husband.

There "was at no timé .any money deposited to the account of “J. W. Young by J. H. W.” which was’ not' the proceeds of, sales'.óf' property belonging "to Mrs. Walkup. Nor is there any’evidence which tends to show’ that she had any knowledge of the existence of said account or that her money was being deposited in that or:any other account than her .own. 'She undeN stood add believed that the proceeds of 'the sales of alt her property, made by her husband, were being de-1 po'sited by him in her name; and so believing she drew cheeks . against hér own, account in payment of land! purchased by her. dr in'payment of any other'of'hers indebtedness. ' .' ’ ' 'I

J.'W. Young had an account of his own in said' bank, in which he deposited his own money. '

The plaintiff in this case was, for "several'years1 prior to the year 1902 and down'to the data:of the' trial, a member of the board of directors of the Bank» of Stoutsv'ille, the’ bank in-which all these accounts ' were "kept, and for'a year or twoJ just preceding!the' trial'hé was the president'of said bank.'

John EL Walkup was “shown to have .had”some hot'sés, mules and a few head of cattle on' the farm of' John; W. Young", or at least he claimed he owned fheihv" but whether they'were the- sainé as' those’ claimed'.'by! MrsdWalkup is not made clear' by the évidénce:

But the 'evidence is clear 'that on several "oeca-T sioris he borrowed money and-gave cháttel mortgágesx on- Mrs.' Walkup’s live .stock'.to' 'secure the load, ’soine^ times with her consent and at:other times''without her] knowledge. That the money thus’ borrowed was gen-> e'rally used in purchasing "other live' stock. 'That -from the date of the"failure of John H. Walkup to" the date, of'the trial, he had paid off" and discharged inore than.; $3000 of Hs old indebtedness, and that the greater part thereof was paid off with money belonging to his wife,' the proceeds of sales of her live stock and from the products of her real estate, the exact amount thereof not appearing, but he testified that it was considerably more than she had used in the purchase of real estate'.

That respondent John H. Walkup assisted in the care of the real estate, that he attended to and fed the Stock, that he assisted in- cutting1 and' hauling the cord-wood and in clearing and fencing the land, and that he acted as respondent JBmma W. Walkup’s agent in the transaction of most of the business, buying, selling and trading stock, marketing the poultry, stock and cordwood, and collecting the proceeds for her.

That .respondent, John H. Walkupi, on several occasions gave in to the county assessor, for taxation in his own name, all the personal property on the prern1 ises, including that of respondent, Emma W. Walkup, and also sometimes the property of John W. Young: It does not appear from the evidence that Mrs. Walk1 up knew anything about the property being listed by the assessor in the name of John H. Walkup, or that she in any way consented to it.

It was not shown and it is not claimed by appellant that respondent, Emma W. Walkup>, at any time gáve her husband, respondent John H. Walkup, authority or assent in writing to sell, encumber or in any mam ner dispose of any of her personal property. ' ’

It is not shown and plaintiff made no effort to show that respondent, John H. Walkup, had any'means of his own or that he received money from any source prior to the purchase of the first piece of real estate which was July 1, Í907, except from the sales of stock or other products of’real estate involved’in this suit, which Emma W. Walkup claims as her sepárate prop.-erty. '

It appears in evidence that respondent Emma W. Walkup, had no knowledge of plaintiff’s judgment against respondent John H. Walkup, until the bringing of this action, and that she thought his indebtedness to plaintiff had been paid long before the year 1902.

Upon the evidence introduced, the trial court found issues in favor of the defendants, and rendered judgment accordingly for them, and denied the relief asked by the plaintiff. After the motion for a new trial was overruled the plaintiff duly appealed the cause to this court.

Numerous errors are assigned, but we will only consider those bearing upon the merits of the case.

I. It is not contended by counsel for appellant that their case is made out and supported by the weight of .the direct and positive evidence in the case, but, if we correctly understand their position in that respect, they tacitly, at least, concede, that the direct and positive testimony in the case is against their theory of the case. But be that true or false, counsel for appellant plant their case squarely upon a presumption of law, presently to be noted, supported and strengthened as they contend by certain undisputed facts'in the case, which they state in connection with said presumption.

The contention of counsel for appellant is clearly stated in the following language, viz:

“The fact that the respondents John H. Walkup1 and Emma W. Walkup, were husband and wife at and prior to-the date of the obtaining of the original judgment by the appellant herein against the said John H. Walkup', and that the land in controversy was purchased during coverture, being admitted, or at least uncontradicted by the evidence in this ease, the presumption is that each and every tract of land in controversy was paid for by respondent John H. Walkup the husband.”

Counsel for appellant in various ways and in different language restate the foregoing legal proposition, as well as certain well-known rules of evidence which, if resorted to by the court would, as they contend, lead to the conclusion above stated.

For convenience and brevity, we will consider all of those matters under the one proposition before stated.

Before going directly to the consideration of the presumption above stated and relied upon by counsel for appellant to make out their case, it may not be out of place' in this connection to state that said presumption grew out of and originated under the common law governing domestic relations.

Briefly, under that law, the husband and wife were considered one, that is, one person ;• and the law gave to the husband an estate by curtesy in all of the real estate of which the wife was seized during cover-ture; it also gave to him all of her personal property and so much of her choses in action as he reduced to possession during the marital relation (which was generally all of them), and under the common law the wife had no capacity to contract; consequently,' the law having divested her of all property she had at the time of her marriage, and she having no capacity to contract for or purchase other property, and even though she had in any manner acquired other property, real, personal or mixed, barring uses and trusts,' it would, under that law, have passed to and become the property of the husband in the same manner that her original estate passed to him at the date of the marriage; therefore, very naturally the law raised a presumption that, where the wife held the title to. real estate or personal property during coverture, the husband paid for the same, and took the title thereto in her name, for the reason that as a rule she had no other way to acquire it. That presumption has been recognized and enforced by the courts of this State and most of the other states of the Union, as well as by the courts of the United States. [Lins v. Lenhardt, 127 Mo. 271; Sloan v. Torry, 78 Mo. 623; Patton v. Bragg, 113 Mo. 601; Seitz v. Mitchell, 94 U. S. 580.]

The conditions that existed under the common law and which gave birth to that presumption, no longer exist in this or in any of the other states, in so far as my knowledge extends. By Sec. 8304, R. S. 1909, a márried woman is empowered to contract, carry on business in her own name, and to sue, and be sued, as a femme sole; and by Sec. 8309, R. S. 1909, it is provided that all real estate and personal property, including rights in action, belonging to any woman at the time of her marriage or which may have come to' her during coverture, by gift, bequest or inheritance, or by purchase with her separate money or means, or be due as the wages of her separate labor or growing out of any violation of her personal rights, shall together with all income, increase and profits thereof, be her separate property and not liable for her husband’s debts. The enactment of both of these statutes antedate the mattérs and things involved iii this litigation.

If we adhere to the wise maxim, that the reason of the law is the soul of the law, and that when the reason of the law ceases, then the law itself ceases, we should attach but little if any importance to the presumption before stated, invoked and relied upon by counsel for appellant, to make out and sustain his case. But give to that veteran presumption, which has served a good and useful purpose in the past, but which has been practically, if not totally abolished, by necessary implication through the enactment of the wise and just statutes governing married women, in this and other states, all the weight it is entitled to, nevertheless, we are of the opinion that appellant has wholly failed to make out and support his case for the reason that this record shows affirmatively that the respondent, John H. Walkup, was himself totally insolvent and had no money or means with which 'he could have purchased and paid for the lands or any part' thereof, involved in this litigation; nor does the evidence show that he earned, accumulated, inherited or otherwise acquired the money or means with which it'was paid for.

But upon the contrary the only direct and positive evidence in the case hearing’ upon that point shows that Emma W. Walkup, the wife of John EL, “was the better man of the two,” and that by the exercise of good judgment, hard labor and strict frugality, she was enabled to support the family and save and add to the small donation given to her by Mr. Young when she and her husband went upon his farm to live. Everything she put her hands to turned into gold; and after a few years she had acquired several small pieces of real estate, worth, less the incumbrances thereon, about $1600.

She also accumulated considerable live stock, poultry and other personal property, about the farm, besides'paying off about $3000 of her husband’s old debts, incurred by him while he steered their ship' of fortune.

Not only that, but the uncontradietéd evidence shows that Mrs. Walkup purchased and paid for the Mudd tract of land with her own means, and from tha.t she sold some eight or nine hundred cords of wood- at $3.50 per cord, which amounted to somewhere between $2800 and $3200.

This was-the only money of any consequence that the evidence shows either of them ever had and clearly this was the foundation of all their subsequently acquired property. The proceeds of the sales of poultry, eggs, butter, etc., went largely to buy calves, lambs, pigs and other poultry, 'and what was not expended in that way was expended for the necessities of life.

And I might add, that there is not a scintilla of evidence to he found in this record which tends to show that any of said poultry ever, at any time, belonged to John H. Walkup'; but upon the other hand the evidence is uncontradicted that John W. Young gave to Mrs. Walkup the first lot of poultry she ever had, and all that which was subsequently found on the1 premises was the issue of the original stock given to her by Mr. Young.

Under the statutes before mentioned, all the real estate and personal property, as well as the issues, rents and profits thereof, which Mrs. Walkup earned during coverture, belongs to he.r, and it cannot be taken to satisfy her husband’s debts.

Counsel for appellant lay much stress upon the fact that John W. Young had an account of his own, in his own name, in the Bank of Stoutsville, that John H. Walkup had one in his own name, and one in the name of “John W. Young by J. H. W.,” and that Emma Walkup had one in her name; and the fact that John H. Walkup frequently deposited money to the account of “John W. Young by J. H. W.,” and would, whenever his wife purchased a piece of land and went to pay for it, draw a check upon the “John W. Young by J. H.'W.” account, and deposit it to the account of Emma W. Walkup, his wife, and that she would then draw her check on her own account in payment of the purchase price thereof. This juggling of accounts between them, it is insisted, is evidence of fraud on the part- of both Mr. and Mrs. Walkup. That is, that by depositing the money in the account of “John W. Young by J. H. W.” would conceal the fact that either of them had any money in the bank, and that the transfer of the money from the “John W. Young by J. H. W.” account to the Emma Walkup' account, and the drawing of the check by her on the latter account in favor of the vendor of the land would conceal the fact that John H. Walkup’ was paying the purchase price, and at the same time make it appear to the outside world tht Mrs. Walknp was paying for it with her own money.

This evidence if standing alone and unexplained would carry considerable probative force, but explained as it is, we attach but little importance to it. In the first place, Mrs. Walknp testifies that she never knew or heard that there existed in the bank the “John W. Young by J. H. W.” account, or that her husband had ever deposited her money in that account. She testified that she directed him to deposit her money in her own account, that she supposed up to the day of the trial of this cause that he had always done so; and so believing, whenever she purchased land or wished to pay for anything else,- when she did not have the money, she always drew a check on the bank against her own account.

This testimony of hers is not contradicted by any of the bank officers who had charge of the books and accounts of the bank and who are presumed to know their customers and to whom the funds deposited in the bank belong.

But independent of that, it is undisputed that the appellant had been for a number of years a member of the board of directors of this bank, and for a year or two just before the institution of this suit he was the president thereof, and presumably was- perfectly familiar with the condition of its accounts; but-whether he was actually familiar with them or not, is wholly immaterial for the 'reason that no person, man or woman, who has any sense whatever, who wanted to perpetrate a fraud upon a person, would go to the bank of that person and open up a series of accounts therein which would expose and lay bare the fraudulent scheme by which the fraud was to be perpetrated. The mere statement of such a proposition condemns its sanity.

Counsel also lay muela stress upon the fact that John H. "W alkup upon one or two occasions morC gaged some of his wife’s live stock.

' The evidence shows that he did so once or twice without her knowledge, and at other times with her consent. Pie should not have done so without her knowledge, and permission; but the fact that he did so with or without her knowledge or consent, did not injure appellant; nor does he só. contend, but he insists that the mere fact that he' mortgaged them is evidence of the fact that he" owned the stock so mortgaged.

Now, can that be? Certainly not; if he got her permission to mortgage them, and equally true, if she had no knowledge of the fact that he had done so. That might be evidence against him, but not against her. That still left the question of ownership of the property open to be proved or established by competent evidence.

Counsel lastly insist that the fact that John H. Wa'lkup gave to the assessor fob assessment a list of the personal property claimed by the wife, as his own, is evidence of fraud.

Concede that said act is an admission'of ownership as against him, it is no evidence against her whatever, unless it was shown that she had knowledge of the fact, and the record in this case fails to disclose that knowledge. But concede that she had knowledge thereof and that it was evidence of fraud, nevertheless, it was not conclusive evidénce of fraud. The question of the ownership of the property in this class of cases is still a question of fact for the court to determine upon .all the evidence in the case, and not one of estoppel. It is not an uncommon thing for a husband, with or without the knowledge of the wife,' to give in her property in his own name for taxation.' I dare say that it is given in that way more frequently than it is given in in her own name. And it is a well-known fact that in the great majority of cases it is done in that way for convenience or thoughtlessly. The husband wishing to pay the taxes on his wife’s personal property, never thinks of making out a separate list of her property, nor as a rule does the question of fraud enter his mind. From a sense of duty and a spirit of generosity towards h'is wife, springs the desire to pay her taxes and other obligations and for convenience merely he includes her property in his list. This is common knowledge, and to hold as a matter of law that such conduct is fraudulent in this class of cases would stamp the seal of disapproval upon one of the noblest and most generous spirits that abides in the human heart. • I am not saying that such conduct may not he the result of a fraudulent design, or that it may not he evidence of fraud where credit has been extended upon it, hut what I do say is this: that it is hut one fact or circumstance which tends to show fraud, but standing alone and uncorroborated by other facts and 'circumstances indicating a fraudulent intent is itself insufficient for that purpose. Evidently this was the view the trial court took of the matter and caused him to find for the respondents.

In our opinion that finding was right, and the evidence in this case was insufficient to sustain the allegations of the petition. So believing, we are of the opinion that the judgment should be affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: BROWN, C. PEN CURIAM.

license: Public Domain

text:
    D. S. MAYHEW, Trustee in Bankruptcy of VAUGHN H. TODISMAN, v. HATTIE F. TODISMAN, Appellant.
    Division One,
    November 30, 1912.
    1. STATUTES: Amendment: Prior Judgment. The amendment of 1909 to Sec. 6S0, R. S. 1899, does not affect a judgment previously entered.
    2. BANKRUPTCY: Trustee's Title: Sec. 650, R. S. 1899. A trustee in bankruptcy has no “title, estate or interest” in land alleged to have been fraudulently conveyed by the bankrupt which will entitle him to maintain an action under Sec. 650, R. S. 1899.
    3. -: -: Suit to Set Aside Fraudulent Conveyance. A petition by a trustee in bankruptcy to set aside a fraudulent conveyance by the bankrupt, must affirmatively show that the property is needed to pay the claims filed against the bankrupt debtor.
    4. -: —1—:.-: Failure to Record Deed. Where property was conveyed to a son and by him to his mother, and the deed to the son was recorded, the failure of the mother to record the deed from her son would not vitiate it nor give existing creditors a right to complain, although she could not claim the property against those who may have given the son credit on his apparent ownership.
    5. -: -: -: Change of Date in Deed. An alteration in the date of a deed from a son to his mother, made after acknowledgment but before record, will not avoid it as to subsequent creditors of the son, unless it was part of a scheme to give the son a fictitious credit.
    Appeal from Barry Circuit Court. — Ron. F. G. Johnson, Judge.
    REVERSED.

      John T. Burgess for appellant.
    (1) Plaintiff’s petition entirely fails, to state facts sufficient to constitute a cause of action. It is not alleged in the petition that plaintiff claims any title, estate or interest in the property mentioned therein, either as owner of the property, or that he claims the interest and title of the said Vaughn H. Todisman by reason of being the trustee of said Todis-man, which is necessary under Sec. 650, R-. S. 1899, now Sec. 2535, R. S. 1909, upon which section plaintiff founds his action. Under the above statute the plaintiff must state his interest in the property, and he has failed to do so in the petition filed in this case. Shelton v. Horrell, 232 Mo. 358. (2) Before plaintiff on behalf of the creditors of Vaughn H. Todisman would be entitled to have the deed to defendant set aside upon the ground of her failure to have placed ■it upon record it devolved upon him- to prove that because of such failure a fictitious credit was given to Vaughn H. Todisman, and upon which a creditor or creditors relied to his or their damage. And there is no such evidence in this record. Gentry v. Field, 143 Mo. 399; Bank v. Newkirk, 144 Mo. 472; Wall v. Beedy, 161 Mo. 625; Clark v. Lewis, 215 Mo. 173. The mere withholding a deed or mortgage upon land from record will not ipso facto vitiate the instrument. It is only when the withholding the instrument from record gives the grantor, upon the faith of the ownership by him of the property conveyed a fictitious credit, and some one has thereby been misled to his injury; that such failure to record will be held fraudulent. Bank v. Buck, 123 Mo. 141; Bank v. Doran, 109 Mo. 40; Bank v. Frame, 112 Mo. 515; Bank v. Rohrer, 138 Mo. 369; Gentry v. Field, 143 Mo. 399; Clark v. Lewis, 215 Mo. 173.

      Sizer & Kemp for respondent.
   BROWN, C.

The petition, filed May 20, 1908, is entitled as above, and, omitting caption,- the description of one lot, not in controversy here, and signature, is as follows:

“The plaintiff, D. S. Mayhew, represents to the conrt that upon the-day of December, 1907, Vaughn H. Todispaan filed his petition in the district conrt of the United States for the judicial district of Missouri, Southwest Division, and therein prayed to he declared bankrupt; that on the 18th day of December 1907, the said Vaughn H. Todisman was duly adjudged a bankrupt in said cause; that on the 8th day of January, 1908, the plaintiff, D. S. Mayhew, was duly appointed by said court trustee in bankruptcy; and thereupon accepted the trust and qualified; that on the-day of April, 1908, plaintiff as such trustee filed his petition in said United States Court for an order to institute in behalf of all creditors of said Vaughn H. Todisman, an action in the Barry County Circuit Court, to set aside certain deeds executed by said Vaughn H. Todisman to ITattie F. Todisman to certain real estate hereinafter- mentioned; that on the 21st day of April, 1908, Hon. A. E. Spencer, a referee in bankruptcy of said United States District Court, heard said petition and ordered that said petition be sustained and plaintiff D. S. Mayhew, trustee as aforesaid, authorized and empowered to institute and prosecute this action for the purposes aforesaid, the premises considered. This plaintiff, D. S. Mayhew, trustee, for his cause of action states, that Hattie F. Todisman is the lawful wife of M. T. Todisman; that Vaughn H.-Todisman is her son;’ that said Vaughn H. Todisman is the owner in fee simple absolute, in and to the following described real estate, lying, being situated in the county of Barry and State of Missouri, to-wit: Lot three (3) in block five (5) original town-site of Monett, Missouri, and that defendant Hattie Todisman claims, so plaintiff D. S. Mayhew is informed and believes, title to the above described real estate in fee by reason of certain deeds from Vaughn H. Todisman to Hattie F. Todisman conveying to her the above described real estate, which deeds of conveyance, plaintiff asserts and charges to be fraudulent and void by reason of having been made in fraud of creditors of the said Vaughn H. Todisman.
“ Wherefore plaintiff, D. S. Mayhew, trustee in bankruptcy as aforesaid, prays the court to ascertain and determine the estate, title and interest of said parties hereto respectively in and to the above described real estate, and to determine and adjudge by its judgment as provided by Sec. 650, R. S. of Missouri, 1899, the title, estate and interest of the parties severally hereto in and to said above described real estate and for all other relief. ’ ’

The evidence, including the original deeds which are presented to this court by the parties for examination, shows that on the 15-th day of December, 1902, two deeds were drawn, signed by the respective grantors and acknowledged before D. N. Jewett, justice of the peace for Barry county. One was a warranty deed from M. Y. Todisman and wife, the father and mother of Vaughn H. Todisman, the present bankrupt, to their said son, and was filed for record on the 26th day of March, 1903. The other was a warranty deed from the latter to his mother, and was never filed for record in the form in which it was originally signed and acknowledged, but on the 30th day of January, 1906, the date, both in the body of the deed and in the acknowledgment, was erased, and the last named date substituted, and it was filed for record, as so changed, on the second day of February following. In the meantime Vaughn H. Todisman mortgaged the lot for $337, which was raised and used in the construction of a party wall in connection with the owner of an adjoining lot. He and his mother explain the alteration in the deed by saying that this mortgage was ma.de by the son because it was ascertained that' the record title was in him and that when it was determined to record the deed they consulted Mr. Jewett, who advised the alteration as affording a solution of that difficulty. Although Mr. Jewett’s deposition was read upon the trial, both parties seemed to avoid all mention of the circumstance in his examination, hut the deeds speak for themselves, and in view of the fact that his certificate and signature are not questioned on either deed, his silence, with the acquiescence of both parties, authorizes the assumption that both deeds were delivered on the same day. There is no suggestion in the record that Vaughn H. Todisman became indebted to any considerable extent before 1906. The parties, in their testimony, explain the execution of the two deeds by the statement that the mother having furnished the greater part of the money with which the land had been paid for, this method was pursued to transfer to her the title, the son having no other connection with the transaction than as a mere conduit, and that she failed to record her deed at first for lack of the money to pay the fee, and then through pure neglect. None of the papers or .records of the bankruptcy proceedings are in evidence and no attempt was made to show the condition of the bankrupt’s estate at the time this suit was instituted.

The final judgment was entered September 29-, 1908. It cancels the deed which was changed as above stated and' recorded February 2, 1906, and decrees the title to the lot- to be in Vaughn II. Todisman in fee.

Motions for a new trial and in arrest of judgment raising the questions presented here for our determination, were filed by defendant and overruled by the court.

This suit is, bv the averments of the petition, founded expressly upon the provisions of section 650 of the Revised Statutes of Missouri, 1899. The judgment from which the appeal is taken was entered in 1908, and is consequently unaffected by the amendment of 1909. The question, therefore, suggests itself wliether or not the trustee in'bankruptcy, who is suing to make the property in controversy available to the creditors of his bankrupt, has selected a remedy available for that purpose; and, if so, whether his petition presents a theory which entitles him to the relief embodied in the judgment.

He depends for his title entirely upon the provisions of Sec. 70 of the Bankrupt Act (30 Stat. L. 565), which provides that he shall “be vested by operation of law with the title of the bankrupt as of the date he was adjudged a bankrupt, ... to all property transferred by him in fraud of his creditors.” *

This does not avoid the title of the fraudulent grantor. [In re Mullen, 101 Fed. 413.] Nor does it give him a right of action to have the fraudulent conveyance set aside in equity, because the bankrupt hhd no such right. It is simply such a title as is necessary to enable a creditor to avail himself of the property, under proper circumstances, in satisfaction' of his debt. To this end the trustee is made by the same section (70'e) the representative of any creditor entitled to the remedy. It provides as follows: “The trustee may avoid any transfer by the bankrupt of his property which any creditor of such bankrupt might have' avoided, and may recover the property so transferred, or its value, from the person to whom it was transferred, unless he was a bona fide holder for value prior to the date of the adjudication.” While the creditor cannot avail himself of this remedy, under ordinary circumstances, without obtaining a judgment at law upon his claim, his right to sue at law being arrested by the petition in bankruptcy, it seems reasonable to permit the trustee to protect the • right of which the proceeding might ’ otherwise deprive him, but this subdivision does not authorize the trustee to avoid a'transfer, unless some creditor by proper proceeding might have avoided it in Ms own favor. [In re Economical Printing Company, 110 Fed. 514.] He represents • the creditor, who, in tMs case, -where no lien is in question, has no greater interest in the property than he would have, had the paper title remained in Vaughn H.' Todisman, and the bankruptcy proceeding had not intervened. Argument is not needed to demonstrate that in such case the general creditor has no “title, estate or interest” in the land which entitles him to bring the debtor into court under the provisions of section 650, to obtain a judicial declaration that he may proceed, by judgment and execution, to avail himself of it for the "collection of his debt.

If, however, we disregard the statement that the trustee is proceeding under the provisions of a statute which he has no power to invoke, and examine his petition for the purpose of ascertaining whether it states facts sufficient to constitute the cause of action which the Bankrupt Act authorizes him to pursue, we find it equally insufficient. Although it states that his bankrupt “is the owner in fee simple absolute” of the property in question, and that he is informed and believes that the defendant claims title in fee to the same “by reason of certain deeds from Vaughn H. Todisman to Hattie F. Todisman . . . which deeds of conveyance plaintiff asserts and charges to be fraudulent and void by reason of having been made in fraud of creditors of (the said) Vaughn H. Todis-man,” it stands upon the title of the bankrupt, and fails to state facts showing that the trustee has the right to proceed in behalf of any such creditor. He has no right superior to that of the creditor whom he represents. Admitting that the conveyances under which the defendant claims are fraudulent, no right to avoid them exists unless the property is needed to pay the claims-filed against the bankrupt debtor, and this should be shown affirmatively by the petition. [Muller v. Brass, 112 Wis. 406; Prescott v. Galluccio, 21 A. B. R. 229.]

The plaintiff proved, as a. necessary part of his case that Vaughn H. Todisman acquired the property involved in this controversy by warranty deed from M. T. Todisman and his wife, the defendant here, without the payment of any valuable consideration therefor. It was also in evidence that this conveyance was a part of an arrangement by which the title to the lot was to be conveyed from M. T. Todisman, the husband, through the present bankrupt to this defendant, his mother, and that, on the same date and at the same time, another deed was executed by the grantee in the first, who was- a single man, to his mother. Were this true, and we have no reason to doubt it, especially in view of the fact that it took place several years before the bankrupt had become indebted, or contemplated the business which resulted in his indebtedness, so far as the evidence' shows, the deeds would constitute a full and mutual consideration for each other, and no creditor then existing, ox who might thereafter sustain that relation, would have any reason to complain. The omission of the defendant to record her deed would not vitiate it, nor give existing creditors a right to complain. As to subsequent creditors, “it is only when the withholding the instrument from record gives the grantor, upon the faith of the ownership by him of the property conveyed, a fictitious credit, and some one has thereby been misled to his injury, that such failure to record will be held to be fraudulent.” [Clark v. Lewis, 215 Mo. 173, 187-188 and cases cited.] For would the alteration of the deed by changing the date, in 1906, have the effect to divest the title conveyed by it in 1902, nor would that be fraudulent as to any class of creditors, unless it was a part of a scheme, participated in by the grantee to give her son a fictitious credit. In such cases she would be estopped from claiming otherwise than according to the terms of the changed deed against those creditors who had incurred the relation by reason of the false impression so produced. (Potter v. Adams, 125 Mo. 118 and cases cited.]

We have referred so fully to the facts in evidence to show that while the petition, founded as it is upon the assertion that Vaughn H. Todisman is the owner in fee simple absolute of the land in controversy, is inconsistent with the assertion that he has conveyed that title, even for the purpose of defrauding his creditors, the evidence, as we understand it, does not tend to support either of these theories, so that it suggests no issue that could properly be included by amendment were the case remanded for further proceedings. [Carter v. Dilley, 167 Mo. 564.] The judgment of the Barry County Circuit Court is therefore reversed.

PEN CURIAM.

The foregoing opinion of BROWN, C., is adopted as the opinion of the court.

All the Judges concur.


author: WOODSON, J.

text:
    LEE COUSINS v. B. F. WHITE et al., Appellants.
    Division One,
    November 30, 1912.
    1. EJECTMENT: Trial Before Court: Instruction. The fact that the ease was tried before the court sitting as a jury does not change the rules of law governing the giving or refusing of instructions in actions at law. If the instruction should have been given had the case been submitted to a jury, it was error for the court sitting as a jury to refuse it.
    2. -: Color of Title: Pointing out Lines at Time of Purchase. Where there was evidence that at the time the owner of land sold it to defendant he had been in the exclusive possession of a certain five acres adjoining the land described in the deed, and he pointed out to her the lines of the land she was buying and the fences inclosing it, which included said five acres, and she thereafter went into possession believing she had bought said five acres and remained in possession for twelve or fourteen years before suit was brought, there was such color of title as authorized an instruction declaring her continuous and exclusive adverse possession for ten years, claiming title thereto, ripened into a title in her by limitations.
    3. QUIETING TITLE: Judgment In Appellate Court: Law Case: Tried Eefore Judge. The Supreme Court will not hold in a law case that upon all the evidence the findings and judgment should have been for the appealing defendant. The facts in an action at law are triable before a jury, who are the sole judges of the credibility of the witnesses and the weight to be given to their testimony. And the rule is the same where the law case is tried by the court sitting as a jury, and it is the same in a case to quiet title wherein the whole issue is the title to the land and the right to possession, under a claim of adverse possession and limitations, for then the issue is one at law. The rules which permit the appellate court to try an equity case de novo and to render such decree as justice and right may require, dc not govern in a law case.
    Appeal from Oregon Circuit Court. — Hon. W. N. Evans, Judge.
    REVERSED AND REMANDED.

      J. N. Burroughs for appellants.
    (1) Color of title is not essential to adverse possession. Mere possession under claim of ownership is sufficient. Mather v. Walsh, 107 Mo. 121; Quick v. Rube, 164 Mo. 408. (2) It is not necessary that color of title be created by deed or other instrument of writing. It may be created by an act in pais without writing. Rannels v. Rannels, 52 Mo. 108. (3) Title by adverse possession may originate in a parol agreement in a case where actual and not constructive occupancy is claimed. Hamilton v. Boggess, 63 Mo. 233. (4) Acquiescence in a division line may be established by the acts, conduct and possession of litigants. Stumpe v. Kopp, 201 Mo. 422; Dee v. Nachbar, 207 Mo. 697; Smith v. McCorlde, 105 Mo. 135.

      8. M. MeeJcs and George M. Miley for respondent.
    (1) Defendant took Huffstedler’s possession with the express understanding that it. was not adverse to plaintiff’s grantors. (2) Defendants’ possession, in its inception, not having been adverse .to plaintiff’s grantors; this situation would continue of the same nature, and no adverse-user could arise until a distinct and positive assertion of a right hostile to the owner, and brought home to him, transforming a subordinate and friendly holding into one of an opposite nature, and exclusive' and independent in its character. Lumber Co. v. Jewell, 200 Mo. 716; Wilkerson v. Thompson, 82 Mo. 317; Budd v. Collins, 69 Mo. 129. (3) The possession from end to end in warp and woof must be hostile — begin hostile and continue hostile. McCune v. G-oodwillie, 204 Mo. 339. (4) A trespasser, a mere squatter, in possession of land under no claim ’ of ownership or title of any degree or character admitting himself holding by wrong and not by right, cannot acquire title by limitation at all. Feller v. Lee, 225 Mo. 327; Hunter v. Wethington, 205 Mo. 284. (5) The burden is on defendant to show that the character of her holding became different and when, if ever, her possession first became adverse to plaintiff and his grantors. Hunnewell v. Adams, 153 Mo. 443.
   WOODSON, J.

This suit was instituted in the circuit court of Oregon county, by the plaintiff against the defendants, to quiet the title to the southwest quarter of section twenty-one, township twenty-two, range five, under old Sec. 650, R. S. 1899.

The deféndants answered, denying any claim to said quarter section, except to about five acres .lying in the southwest corner thereof,, described as follows:

Beginning at the southwest corner of section twenty-one, running thence north to a point where the public road intersects the section line between sections twenty and twenty-one, the same being a distance of five hundred and fifty-four feet; thence in a southeasterly direction along said public road to and intersecting the section line between sections twenty-one and twenty-eight: thence west a distance of six hundred feet to the point of beginning.

Said answer was as follows:

“Now come defendants in the above entitled cánse and for their answer to the petition of plaintiff, deny each and every allegation in said petition contained.
“Defendants further answering say that they are in possession of and have within their enclosure a portion of the land described in plaintiff’s petition; that they and their grantors have for twenty-six years, last past, maintained an enclosure around said portion of land; have been in the open, continued, exclusive and adverse possession of the same for the whole of said period of twenty-six years, claiming title thereto and have made valuable improvements thereon; that the portion of said land so held by defendants and their grantors more particularly described is as follows: [Then follows the description as above set forth.]
“Defendants further say by reason of the open, notorious, exclusive and adverse possession of the above described land under claim of ownership by them and their grantors for a period of more than ten years as aforesaid, they are vested with the full title to said land, both legal and equitable.
“Wherefore, defendants pray that the court may by its judgment and decree adjudge that the defendants are the owners of the above described land; that defendants be vested with full title thereto, both legal and equitable, by the judgment and decree of the court; and that plaintiff be divested of any title or interest he may hold to the same, and that the same may be vested in these defendants, and for such other orders and judgments as to the court may appear meet and proper. ’ ’

At tire trial all defenses, except the Statutes of Limitations, were abandoned.

Tire following facts are undisputed:

The record title to tire land is in tire plaintiff, be having acquired it from one O’Neal, who through mesne conveyances acquired it from William H. Taylor, about the year 1880'.

The defendant Margaret White 'purchased lands adjoining that in controversy from Amos Huffstedler, in the year 1894. She testified that at the time she purchased said lands she purchased all the lands which were within the Huffstedler enclosure, which it is conceded included this five acres. She testified that she had Huffstedler point out the lines to her, which included the land sued for; that he told her that all the lands in that country were sold as farms, and that this farm included all the lands inclosed by the fences which he pointed out to her; that he told her that he had been in the possession of this five acres for thirteen years, and had cultivated it all that time; that she took possession of said five acres along with the other land inclosed by the same fence, and had the actual, exclusive, adverse and notorious possession of it from that time down to July, 1909’, about sixteen years, when this suit was instituted, cultivating it each and every year, and receiving all the rents, issues and profits thereof during all that time; and that during all that time she claimed title thereto, which was not questioned nor was her possession ever disturbed, except upon one occasion, about a year after she purchased the land, namely, in the year 1894, and that was by William H. Taylor, who at that time claimed to have had the record title thereto; that upon that oc-, casion Taylor made claim to the five acres, and took possession thereof, and set some posts near the present controverted line; that she so vigorously protested against Ms claim of title and wrongful possession, that lie pulled up and left the place, and never again claimed title thereto or disturbed her possession thereafter, which was about twelve of fourteen years prior to the institution of this suit.

Amos Huffstedler testified for plaintiff, but did not contradict the testimony of Mrs. White, except in this manner: He testified that at the time he made the contract of sale with Mrs. White, he stated to Mr. Trihble, the attorney who drew the deed, in the presence of Mrs. White, that there was some agricultural land that cornered down in the field (this five acres) he was not selling to defendant.

Mrs. White testified that she never heard Huff-stedler mate that statement to Tribble, but that after she had contracted for the land and “had made the payment” thereon Huffstedler, for the first time, said to her that there was some agricultural land that cornered down in the field, and that he assured her that she would never be bothered about it, that he had held it for thirteen years, had cultivated it all those years and had never been bothered about it, and that he deemed the title to the same to be safe for her.

(The record is not clear upon this point, but from this remark I suppose the land was purchased upon the installment plan, and that the payment referred to was the first payment made under the contract of pur: chase.)

Huffstedler also testified that he held the actual, exclusive and notorious possession of said five acres of land for thirteen years prior to making the deed to Mrs. White, and cultivated it all that time, and received all the issues, rents and profits thereof, but that he never claimed the land adversely.

The record is silent as to the reason and as to the conditions that existed under which he took possession of said five acres, or why it was enclosed with Ms lands.

Mrs. White was recalled and testified that she took possession of all the land in question, under the deed, believing that she had a good title to all of it as Huff-stedler had told her she had.

The only evidence introduced tending to contradict the evidence of Mrs. White to the effect that she claimed the five acres of land adversely under color of title, was that of the plaintiff and his attorney, S. M. Meeks, regarding a conversation which took place in the latter’s office a few days prior to the institution of this suit.

Plaintiff testified as follows:

■‘I had a conversation with Mrs. White about this piece of land in Mr. Meeks’s office, after I bought it from Michael; she came in and said she would buy it from me, if I would sell it, and I told her I would, and she asked me how much I wanted, and I said seventy-five dollars an acre; she said, ‘That is too much.’ She asked me how much I gave and I said $9.25 per acre, and she said she would give me twice as much as it cost me. She said there was something like five acres and she would give me $100' for it.
‘ ‘ Cross-Examination:
“Don’t know that she said who was the owner of that land; nothing was said about the ownership of it;' the best I remember she came in and asked me if I would sell that piece of land; I didn’t talk with her much. ’ ’

The following was Mr. Meeks’s testimony:

“I heard the conversation between Mr. Cousins and Mrs. White; I couldn’t tell all of it; Mrs. White came in, I think Mrs. White and I came in together, and went in and sat down and Mr. Cousins came in directly from another room; they were talking about this land, and he told her that he would draw a line from that section corner to Mr. Shaver’s fence and set a price and give or take, if I remember right, and she told him she wouldn’t do it, she had none to sell; she asked him what he gave for it, and he said $9.25, and she told'him she would give him twice that for what was in the field and considered that a reasonable offer, or something to that effect, she said, ‘You say there is 5 acres ? ’ and she would give him $20 or $100 for what was there; that was a few days before this suit was filed.
‘ ‘ Cross-Examination:
“Mrs. White came down to my office to see me about this land; she understood that Cousins was making a claim to it. She came and talked to me about it when Bill Payne was making some claim to it, about a dozen years ago. I don’t remember whether I advised her she could hold that land; I think Mr. Kenner was mixed up in it and Mr. Payne and Mrs. White; it was a three-cornered controversy. I heard that Mr. Payne had got it and some posts; I might have advised her she could take those posts out, I don’t remember whether I advised her to that effect or whether I told her that the land belonged to her by right of possession.
‘ ‘ Re-direct Examination:
“I had no knowledge of the facts, and if I gave her any advice it was upon her own statements.”

William Miller testified for defendants as follows:

“I have known the land in controversy for twenty-nine years, I would say; I remember Bill Payne claiming it; I don’t recollect how long it has been, probably a dozen years ago; I heard him making some claims to that corner down in Mrs. White’s field there; I heard him say something about it in the court here to Judge Evans; something about wanting possession of it; I don’t know what steps were taken, but I un-stood Judge Evans to state they would hold it by Statute of Limitations. I had put his poles in there to build a fence and then he didn’t build it; I don’t know what year that was.
“Q. You never knew or heard of him making any further claims to that land? A. That is the last I heard said about it.
‘ ‘ Cross-Examination:
“I don’t know what he claimed; I don’t know what kind of matter or proceeding it was I heard in court; I don’t know exactly — I heard Payne name something about wanting possession of this land, or something of the kind, to Judge Evans. It was after Payne was out of gffice here, ten or twelve years ago; I couldn’t tell how long it has been. I don’t know what the general knowledge and understanding was out in this neighborhood, as to whether this corner out of that quarter section run down into the field; I don’t know what the general knowledge, but I knew it; I don’t know how the general opinion is about it being part of that White farm, but I would consider it a part of the farm; it belonged to the field.”

Joseph Rizenour, being introduced on the part of defendants testified in substance as follows:

“I am the tenant cultivating the White farm, and rented it from Mr. White, through my son; it included the piece of land in controversy here. I have known this place about twenty-nine years; this land in dispute has been held under the enclosure of the White farm ever since I knew the farm; the fence has been set back a little this year, a new fence put in there this year, it may have been set out a little, but it follows the road. For the last five years I have known' Mrs. White to have control of it; as far as I know Mrs. White’s renters have occupied it from the time she bought it on down. The new fence was set up against the old fence in places, and out six feet north of it in places. ”

Mrs. White upon recall further testified that:

“Mr. Huffstedler told me when we were trying to mate the deal that all the land was sold in farms; that is the way he told it; he didn’t tell me anything about this piece until he told me about the lines; that about telling me before Mr. Tribble — I wasn’t there and don’t know anything about that. He said I could hold the land all right, that he had held it thirteen years and never been bothered. Mr. Nettleton bought it in 1882..
“Q. About this conversation that took place in Mr.' Meeks’ office — state why you went? A. The reason I went there I heard Lee Cousins bought it and Í heard that he was going to take forcible possession of it, and when I went up to Mr. Meeks’s office ana asked him what I should do, and he said he wouldn’t do that. Before that the surveyor came to the house and I thought it was the county surveyor, and instead of that it was Mr. Haskell. And then I came down and Lee came while I was there, and he said he was going to survey and I said I didn’t want any trouble. I said, cHow much did you pay for the land?’ And I offered him $100 for his claim and he said he would have to have $75 per acre, and was going to law to get it. I made that offer to get the matter settled without a suit.
“Q. About how long after you bought this land was it that Mr. Payne made this claim? A. When he put them holes in was about three years; I owned it I guess eight or nine months when they had it surveyed. Mr. Huffstedler told me there was nothing to it; I claimed up to the fence. When he went to show me the line fence and the corner he said that was a piece of this land got from another corner in there; this was known as railroad land; Nettleton bought it in 1882.
‘ ‘ Cross-Examination:
. “Mr. Meeks didn’t tell me lie was Cousin’s attorney the day I was in there; he said he wouldn’t represent either of ms on account of being a friend of both of us. I didn’t tell Mr. Meeks in that conversation that Huffstedler told me he wasn’t selling this land, because he didn’t tell me so.”

Plaintiff admitted that the land in dispute had been in cultivation for about twenty-nine years.

Whereupon defendants rest.

Thereupon, plaintiff recalled S. M. Meeks and inquired whether Mrs. White said that Amos Huffsted-ler told her he was selling the land in controversy when he made the deed. Witness said: “.She stated he told her there was a corner of this other section run down in to it. She didn't state when he told her that.”

Defendants asked the following instructions, numbered one and two.

“1. If the defendant, Margaret White, understood and believed at the time she purchased the farm adjoining the land .in question that said land went with said farm and was a part of the same; that she went into possession of the disputed land, maintained an enclosure around the same and continued in the open, adverse and exclusive possession of the same for a period of ten years, claiming title thereto, then the finding should be for defendants, although defendant may have afterwards learned that the title to said lands was in dispute.
“2. If the defendant Margaret White had the land in dispute within her enclosure for a period of more than ten years consecutively prior to the filing of this suit and during all that time held the open, exclusive and adverse possession of the same, claiming title thereto, then such possession has ripened into a title in the defendants; although she may have known that the record title to such land was in other persons and that her title to said land was in dispute.”

The court gave the first instruction, but refused the second, to which action of the court the defendants duly excepted.

The plaintiff asked no instruction.

The court sitting without the assistance of a jury found the issues for the plaintiff; and the defendants, after moving unsuccessfully for a new trial, appealed the cause to this court.

I. There are but two errors assigned: first, that the court erred in refusing to give instruction numbered two requested by defendants; and, second, that upon the whole record the findings and judgment were erroneous, and should have been for the defendants, and not for the plaintiff.

We will dispose of those questions in the order stated.

As to the first: If this case had been tried as an action at law, which unquestionably it was, as the only defense was the Statute of Limitations (Lee v. Conran, 213 Mo. 404) instruction numbered two should have been given, for the reason that it correctly announces the principle of law governing the Statute of Limitations pleaded in the answer. The only excuse offered by counsel for respondent for the action of the court in refusing said instruction is, that there was no evidence introduced tending to show that the defendants were claiming adversely under color of title.

Counsel for .respondent have either overlooked some of the evidence, or have misconceived its import. Mrs. White, one of the defendants, testified that she purchased the land from Amos Huffstedler, and that he pointed out the lines to her which inclosed this five-acre tract; also that after she had entered into the contract of purchase and had made the first payment, he for the first time, mentioned this five acres, and then only remarked that he had been in the uninterrupted possession thereof for thirteen years, and had never been disturbed therein, and that he was satisfied that she had a perfect title thereto. And Huffstedler does not contradict her in that regard except what he says he told Tribble in her presence regarding this five acres; and it should be observed that he did not state that she heard, or had the opportunity of hearing, what he said upon that occasion. She testified that if he made any such statement to Tribble she never heard it.

But be that true or false, it cannot be said she was not in the actual exclusive, notorious and adverse possession of this land for some twelve or fourteen years before the institution of this suit, nor do I think it can seriously be contended but what she was claiming under color of title when we consider her testimony, in connection with that of Meeks, respondent’s attorney, Huffstedler, a witness.for respondent, and that of William Miller and Joseph Bizenour,' witnesses for appellants. In fact, their evidence shows conclusively that she was claiming title thereto, and actually dispossessed Payne, the real owner, a year or so after she purchased the land from Huffstedler.

Moreover, the uncontradicted evidence-shows that she was claiming title to the land all this time, not only by dispossessing Payne, but there was some kind of a proceeding had in court touching this land, in which it was shown that she was then claiming the title thereto; and that the remarks of Judge Evans made during the trial of that case shows that he not only knew she was claiming the title, but also that he thought her claim was well founded.- She also consulted Mr. Meeks, the attorney for respondent, about this claim, and while he is not clear as to just what his advice was, nevertheless it shows she was claiming title thereto.

So under this evidence we are satisfied that there was an abundance of evidence tending to show that defendants were, during all the years they were in possession of the land, claiming adversely under color of title.

For the reasons stated we are of the opinion that the instruction should have been given. And the fact that the case was tried before the court without a jury does not éhange the rules of law governing the giving and refusing instructions in actions at law. [Crossett v. Ferrill, 209 Mo. 704, l. c. 707.] We are, therefore, of the opinion that' the court erred in refusing to give instruction numbered two.

II. This brings us to the consideration of the second error assigned by counsel for defendants, namely, that upon all the evidence the findings and ¡judgment of the court should have been for the appellants.

If this had been a case in equity, there might have been much force in this contention, for the reason that then we would have had the right to review and weigh the evidence, and render such judgment or decree here as justice and equity might demand. [Gibbs v. Haughowout, 207 Mo. 384.] But this being an action at law, we have no such authority.

The facts in such a case are triable before a jury, who are the sole judges of the credibility of the witnesses, and the weight to be given to their testimony.

Because of the error before mentioned, the judgment is reversed and the cause remanded to be proceeded with in conformity to the views herein expressed.

All concur.