text:
    EAST ST. LOUIS ICE & COLD STORAGE COMPANY, COLUMBIA BREWING COMPANY and L. FRANK OTTOFY v. HERMAN H., alias HERMAN, KUHLMANN; LILLIAN, alias LILLIEAN, KUHLMANN, his wife; JOHN A. TORNHAGEN, ALBERT C. GEHNER, Trustee, and AUGUST GEHNER, Trustee; The KUHLMANNS, Appellants.
    Division One,
    December 23, 1911.
    1. HUSBAND AND WIFE: Rights of Creditors: Fraud: Scrutin* ¡zing Transactions. The law recognizes as primal the duty of a husband to support his wife and children, though in so' doing his creditors suffer. But the paramount duty which the-law lays upon the husband to support his family must not be' used as a cover for fraud against creditors. Because the intimate relation of husband and wife affords a convenient opportunity for fraud on creditors, property transactions between them will be discriminatingly scrutinized when questioned by creditors.
    2. —■■-: -: Voluntary Conveyanec. A voluntary conveyance of land by an insolvent husband to a wife, which, being without consideration, amounted to a mere gift, is subject to a judgment then existing against the husband and to his other debts about to be put into judgment. Such a conveyance is in fraud of the rights of his creditors.
    3. -: -: -: Trust Property. Where a dying wife conveyed her real estate to her husband, and he traded it for a farm, and then the farm for city property, putting the title of the city property in a second wife, all the deeds being absolute on their face, without any limitation or condition, he cannot, when his creditors ask that the city property be subjected to the payment of their judgments, maintain that the real estate conveyed to him by his first wife was in trust for the use of her children, and that the city tract conveyed to him by his first wife was in trust for the use of her children, and that the city tract conveyed to his second wife was impressed with that trust. Such a contention amounts to an attempt to escape fraud upon creditors by confessing a fraud, upon the children of the first wife. Besides, as they are not parties their rights are not in court for adjudication.

      41. -: -: As Agent for Wife: His Capital: Equitable Title. Where a husband deals on his own capital there is no room for an agency. The capital being his, the money made in trading on it is his, and though all the checks used by him in his business were signed by him as her agent and the bank accounts were kept in her name, yet the agency being a sham and a pretense, the property bought with such money, though the title was taken in her name, is subject to his debts. Since he paid the consideration she stands charged in equity with a trust in his favor, and that equitable title is wide open to his creditors.
    5. PLEADING: Objection: At Beginning of Trial. An objection to the introduction of testimony on the ground that the petition does not state a cause of action should be made at the first opportunity. It is late if made after some substantial evidence has gone in without objection. Such objection is not allowed the broad office of a timely demurrer.
    6. -: No Cause of Action: Oral Objection at Trial. If the petition wholly fails to state a cause of action, and is not aided by the answer, an objection thereto may be raised at any time, for then the defects are jurisdictional. But the proper method of raising objections to the petition is by demurrer, and if one is not filed, defendant’s objections to the introduction of evidence on the ground that the petition does not state a cause of action, will not be sustained because, of a lack of certainty or definiteness of allegation, nor because of informality in the statement of an essential fact, nor because a cause of action is defectively stated. An objection to the petition made after the trial has begun is tolerated, but not encouraged, because it smacks of ambush and of lying in wait, and therefore every reasonable intendment and fair implication will then be resolved in favor of the petition, and if it states a cause of action, though defectively, the objection will be overruled.
    7. -:-; -: Fraudulent Conveyance: No Allegation of Insolvency. Though there be no allegation that defendant is insolvent, yet where no objection is made to the petition until after the trial begins, insolvency will be implied in the allegation of fraud that the conveyance was made to his wife to hinder and delay his creditors and that the judgments have remained unpaid for ten years and will remain unpaid unless the land can be reached.
    S. -: -: -: Creditor’s Bill: Equity: No Fi. Fa. It is not necessary that judgment creditors, in order to have considered a creditors’ bill, asking to have certain lands which had been conveyed to their debtor’s wife subjected to their judgments, first issue fl. fa. writs and have the land sold under their judgments, nor were they obliged to issue ft. fa. and search for personal property, where their petition makes allega-' tions from which it is apparent that course would be useless. Equity does not require a useless thing to be done.
    9. EVIDENCE: Special Legislative Act; No Objection at Trial. An objection that certain abstracts of titles were wrongfully admitted because the special and local law making them evidence was not offered in evidence, will not be considered on appeal, if not made at the trial.
    Appeal from St. Louis City Circuit Court .—Hon. Daniel G. Taylor, Judge.
    Affirmed.

      Hiram N. Moore for appellants.
    (1) The petition fails to state a cause of action and defendants’ objection to the introduction of any testimony should have been sustained. Merry v. Fremon, 44 Mo. 521; Wilkinson v. Goodin, 71 Mo. App. 397; Rinehart v. Long, 95 Mo. 396; Humphreys v. Milling Co., 98. Mo. 542; Implement Co. v. Jones, 143 Mo. 278; Burnham v. Boyd, 167 Mo. 185; Davidson v. Dockery, 179 Mo. 693. (2) The conveyances from Ford and wife to Kuhlmann of the 18th of February, 1897, and from Kuhlmann and wife to Adolph Mast, of date the 24th day of May, 1898, were not legally proven and the so-called certified copies of the deeds were improperly admitted in evidence. If admissible in evidence at all they would have been so by virtue of a local, and special Act of the Legislature contained in the Session Acts of 1905, at page 152, and this act was not introduced in evidence. Kirby v. Railroad, 85 Mo. App. 345. (3) The evidence fails to show a transfer of the property by Kuhlmann with an intent to defraud his creditors, but even if such intent had been shown, the evidence utterly fails to show any guilty participation therein, by defendant, Lillian Kuhlmann; or any knowledge on her part at the time from which such intent might.be inferred.

      John T. Fitzsimmons and L. Frank Ottofy for respondents.
    (1) The decree subjecting the Madison street property and the Cass avenue property to the satisfaction of the judgments of plaintiffs against H. Kuhlmann was just and equitable and should stand. If Lillian Kuhlmann were permitted to retain these properties without payment of these judgments, a gross fraud upon her husband’s creditors would receive the sanction of law. Johnson & Co. v. Christie, 79 Mo. App. 46; Wolfsberger v. Nort and Pritsch, 104 Mo. App. 26L; Pomeroy on Equitable Remedies, supplementary to Pomeroy’s Equity Jurisprudence, voi. 2, sec. 873, p. 1409. (2) Plaintiffs’ petition states a cause of action and defendants’ objection to the introduction of any testimony was properly' overruled. Reed v. Bott 1001 Mo. 62; Jordan v. Buschmeyer, 97 Mo. 94; Bliss on Code Pleading, sec. 211; Lyons v. Murray, 95 Mo. 23; Smith v. Sims, 77 Mo. 269; Nagel v. Railroad, 167 Mo. 89; Bank etc., v. Rohrer, 138 Mo. 369; Dorman v. Hall, 124 Mo. App. 5; Ennis, Admr. v. Padgett, 122 Mo. App. 5391; Hoffman v. Grill, 102 Mo. App. 320; Pomeroy on Equitable Remedies, sec. 874, p.,1410. (3) Fraud on the part of Kuhlmann in causing the Madison street and Cass avenue property to be conveyed to his wife by the grantors thereof is conclusively proved. It was not necessary to allege or prove any fraud in fact on the part of his wife Lillian Kuhlmann. The conveyances to her were constructively fraudulent in the absence of a satisfactory showing to the contrary. Jordan v. Buschmeyer, 97 Mo. 94; Johnson & Co. v. Christie, 791 Mo. App. 46'. (4) The regularity of the returns of the constable or of the sheriff on the executions is not in point, since no question of title to real estate, depending upon these returns, is in the case. The issuance of executions merely has bearing on the question whether judgment creditors have exhausted their legal remedies. Judgment creditors may be entitled to equitable relief without a showing that execution issued for equity does not require the doing of unnecessary things. In this case, defendant H. Kuhlmann testifies that he has not a cent, hence what use would an execution sub-serve. Langford v. Few, 146 Mo. 142; Littlefield v. Ramsey, 181 Mo. 619; Tittmann v. Thornton, 107 Mo. 510; Welch v. Mann, 193 Mo. 32.
   LAMM, J.

On May 17, 1907, the Storage Company, the Brewing Company and Ottofy, three judgment creditors of Herman Kuhlmann, united in a. creditors ’ bill, suing him and others in the circuit court of St. Louis, the general nature and object of which suit was to subject two tracts of ground in St. Louis to three judgments aggregating a few hundred dollars. The record title to said tracts was in the defendant Lillian, wife of Herman Kuhlmann. The bill alleges that Herman, paying the consideration, caused the title to be put in his wife by conveyances made with the intent to hinder, delay and defraud his creditors. At the hearing, nisi, a decree going for plaintiffs, the Kuhlmanns in due time and apt form appeal. The-rights of the other defendants (respectively trustees in two deeds of trust in the nature of mortgages and beneficiaries therein) are not infringed by the decree. Accordingly they abide it.

To work a reversal appellants (1) assail the bill,. (2) claim error at the trial in admitting - certified' copies of two deeds offered in evidence by plaintiffs,, and (3) contend that the decree is for the wrong party-on the merits.

Attending to the facts, the case made is this:

The first tract to be charged is the east half of a certain lot six, fronting twenty-five feet on the north side of Madison street in the city of St. Louis, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Madison tract. This parcel stands incumbered of record by a deed of trust securring $1000 loaned the Kuhlmanns in 1904.

The second tract to be charged is three contiguous lots fronting one hundred feet on the south side of Cass avenue in said city, more particularly described by metes and bounds in the bill. For convenience let us call it, passim, the Cass tract. It stands incumbered of record by a deed of trust, of date April 15, 1905, securing an indebtedness at the time of the trial of $5,000 purchase money.

There is no dispute but that the value of the Cass tract is $7,700. The value of the Madison tract is somewhat dark. As near as we can make out it may be put at say $2,000 for the purposes of the case.

Kuhlmann’s present wife took title to the Madison tract by a deed from one Adolph Mast, of date the 24th of May, 1898. She took title to the Cass tract on April 15, 1905, through a deed from one Becker. Both of these deeds were promptly spread of record. These two conveyances are the ones sught to be opened up so as to let in respondents’ judgments as charges on both tracts.

On the 7th day of May, 1906, the Brewing Company took judgment against Herman Kuhlmann, before a justice of the city of St. Louis, for $130 and costs. A transcript thereof was filed in the office of the clerk of the circuit court of said city on the 1st day' of April, 1907, showing, inter alia, a due constable’s nulla bona return on a justice execution on December 11th, 1906.

On the 10th day of February, 1899, the Storage Company took judgment against Kuhlmann before another justice of said city for $200. A transcript thereof was filed in the office of said clerk on April 25, 1899, showing inter alia, a due constable’s nulla bona return on a justice execution in May, 1899.

On the 29th of March, 1897, Ottofy took judgment for $100 against said Herman Kuhlmann before another justice of said city, on which execution issued and a due constable’s return of nulla bona came in thereafter on June 27, 1897. A transcript of this judgment was presently filed in said clerk’s office. This judgment was revived in March, 1907, in due form, by a proceeding before the successor of the justice rendering it originally. A transcript of the reviewed judgment, thereafter in March, 1907, was also filed in the office of said clerk. Presently, a transcript execution was issued, thereon by said clerk, and on March 26, 1907, a levy was made on said Madison and Cass tracts, which execution was returned by the sheriff, on the order of Ottofy, unsatisfied and without sale of the property levied upon. Prior to the revivor, a transcript execution was issued by the circuit clerk in 1900, and in August-of that year the Madison tract was levied upon, but, by order of Ottofy, the execution was returned by the sheriff without a sale of the property and unsatisfied.

{Note bene-. There is no question of homestead raised by appellants, nor does the testimony uncover or tend to establish a homestead right as against the complaining judgment creditors.)

Said judgments from that day to this remain unsatisfied in whole or in part. At the time Kuhlmann’s said wife took title to the Madison tract there were other judgments against, him, but whether they now are satisfied or outlawed by the flight of time is not disclosed.

It sufficiently appears that from May 24th, 1898 (the date Mrs. Kuhlmann took title to the Madison tract), down to this day, Kuhlmann stood under the flag of insolvency and claimed the protection and immunities peculiar to its folds. Never since has'he carried any real estate in Ms name. His dioses in action then or since existing, if any, disappear as any part of his visible assets, and if they reappear at all they do so apparently as part and parcel of hers. So that he then became and ever since remained independently poor as to his creditors, beggared as to them to all outside appearances, and -without a particle of visible property subject to legal process. It sufficiently appears also that if his complaining creditors have any remedy it is in equity. Whether such remedy exists depends on conclusions to be drawn from ■ a close and discriminating judicial scrutiny of the scheme whereby Kuhlmann- thenceforth filled the alleged office of agent for his wife and she in turn became apparent owner of all he had, including his then business with all and singular its after earnings and gains for the ten years between 1897 and the date of the trial. Attending to that phase of the case, the facts are these:

Kuhlmann, forty odd years old, has been for twenty-three years, that is, since his majority and arrival in this country, a horse trader. While his headquarters (barring a short interval) were in St. Louis, he was peripatetical, at spells plied his calling now and then in other towns of that region. Twice married, Kuhlmann during his first wife’s lifetime did business in his own name. She died, having before her death conveyed a property on Sarah street in St. Louis to him. Presently he married defendant, Lillian, aged twenty. From fourteen years of age-up to her marriage, Lillian worked as a domestic on wages. Her mother was a widow living in apartments in the second story of a tenement house. If this widow had any property worthwhile its source is shadowy and it consisted in money kept concealed by her in those apartments. Her family were Lillian, ah elder sister (also working out as a domestic) and a brother working on wages, since dead. We gather that the family was supported by the labor of the children and by sewing the widow took in. After the widow ceased to keep house, as she did presently, she lived with her eldest daughter who had married, paying nothing for board or lodging till she died. Two days after the Christmas' of 1897 her daughter Lillian married Kuhlmann. Appellants introduced testimony tending to show that Kuhlmann’s fortunes at that time were at low ebb, and that a few days .after the marriage Lillian’s widowed mother, strongly impressed with her new son-in-law’s ability as a horse dealer, produced from some hidden source $750 and presented it to her to go on in the horse trading line. The theory of appellants is that this windfall of $750 became Kuhlmann’s subsequent capital in trade as agent for his wife, and there is testimony tending to show on their behalf that she then put this present of money in an iron safe in the house and safely kept it there snug as a bug in a rug for over a year, when she deposited it to her name in a bank on the 28th day of December, 1898. A bank deposit was in evidence for that date for that amount to her credit. We shall recur to this bank deposit later. It has weighty matter in it and on the ownership of that deposit this case turns as on a pivot. There is more testimony on that behalf presently to be considered. There is testimony also tending to show that at once after the marriage an arrangement was made between Kuhlmann and his wife whereby he should ply his calling as a horse trader as the agent of his wife and a sign was put up at their place of business, reading: ¿‘H. H. Kuhlmann, Horses Bought and Sold, Agt.” Prom the time of that marriage onward he so ran the business. No bank account appears in Kuhlmann ’s name thereafter. All funds were banked in hers, but the checks against this account were drawn only by Kuhlmann himself. The plan adopted was this: they got a rubber stamp running as follows: “Lillian Kuhlmann........Attorney.” This stamp was kept in her desk, so she says. She would from time to time put that stamp upon a block of blank bank checks and turn these blank checks over to her husband to use at his own will as a horse dealer or otherwise. The signature of these checks when uttered by Kuhlmann was in this form: “Lillian Kuhlmann by Merman Kuhlmann Attorney.” He dated them, filled in the amount, wrote his name thereto in the blank left by the stamp and uttered them. He rendered no account to her at any time as agent, nor was she consulted as principal in the run of his dealings. He got no’commi ssion or pay as agent. He summed up on that score as follows: “All I got is what I got to eat and drink. All I got belongs to her to support the children with.” The use of business funds was at all times potentially his, he drew checks as he willed, he made the deposits in his business, retaining out of its earnings and gains such pocket money as he chose, depositing such amounts as he chose and when he chose, subject to the checking scheme above outlined.

The business prospered. Out of its income Kuhlmann, having negotiated for the Cass tract, drew a check of the character indicated in 1905' to pay down the cash payment thereon of $1700. Similarly two subsequent payments, aggregating $1,000, were made. The total purchase price was $7,700, leaving $5000 due, as heretofore said. Kuhlmann had the title taken in his wife’s name. So much for the C'ass tract.

Recurring to the Madison tract and bringing down the threads of its history, the record discloses this condition of things. Before his second marriage Kuhlmann. traded his Sarah street property for a farm of 240 acres in Pulaski county and $600 in cash to boot, in February, 1897. There is an effort to show that this land was “turkey land”—i. e. of little value. But from what follows it is apparent we need make no investigation or finding on the worth of that farm; for it is not a vital issue in this cáse. On the 24th day of May, 1898, for an expressed consideration of $4580', Knhlmann and his codefendant, his present wife, conveyed that land to one Adolph Mast, a butcher of St. Louis. The transaction was not an out-and-out sale for cash, but a swap of properties by Knhlmann and Mast. Thereby Mast traded to Knhlmann for his farm in Pulaski county the Madison tract in question and paid boot—the title to the Madison tract as said being taken in the name of Lillian Knhlmann. As part of that trade Knhlmann got a grocery store in St. Louis variously estimated as worth from $200 to $1000. This grocery store he also turned over to his wife. As we understand the record, Mast assumed and paid a secured debt on the Pulaski farm of $750 and gave Knhlmann a note for $800 secured by a deed of trust on the Pulaski farm, which note he afterward paid to "him individually on December 28, 1898. In turn the Kuhlmanns assumed a building and loan association debt of $800 on the Madison tract which Knhlmann subsequently paid out of the income of the horse trading business—in two instalments by checks drawn as indicated heretofore.

Afterwards in 1904 the Kuhlmanns borrowed $1000 on the Madison tract and put that money into the horse-trading business. So much for the Madison tract.

It will be observed as of significance that the date of the Mast payment to Herman Knhlmann of the $800 note, a balance due him on the Pulaski farm, coincides precisely with the date of the beginning of the bank account, on the $750 item on which appellants rely to show that Lillian Knhlmann furnished the horse-trading capital of the business Herman transacted as her agent, and on the strength of which she lays claim to not only the corpus of the trading capiital but to all the gains and profits thereof, part of which purchased the Cass tract. Herman Kuhlmann testifies that the deposit did not come out of the $800' paid by Mast to him on that day, but was the identical money given by his mother-in-law to his wife a year before. When asked what became of his $800, he testified he used it in educating his children. The Kuhlmanns contradict each other in that behalf and in other particulars. There were warnings given by the chancellor during the testimony of Kuhlmann indicating he was not satisfied with the candor of the witness—the details of which may as well be omitted.

Going back a little, Mrs-. Kuhlmann testified in substance that out of her wages as a domestic she laid up $300 against her marriage day, and that every penny thus accumulated went into the horse-trading business her husband thenceforward carried on as “agent” for her. What outlay, if any, she made for preparation for her marriage out of her girlhood store by way of a wedding outfit she does not tell us.

If there be other facts essential to a determination of the assignments of error they will appear in the course of the opinion.

On such a record, we observe:

I. There was no error in the decree on the merits. This, because:

’ (a) ‘ The law recognizes a primal duty of the husband to honestly support his wife and children, though in so doing his creditors suffer. That rule of conduct in the long run is the best fox the State and society. Indeed, long before statute created the right and remedy of a creditor to collect his debt, the law of nature created the right of children and wives to support by the family’s head and this law is paramount to any statute law that runneth in favor of creditors; for the latter is but written on parchment by the finger of man while the former was written with “the finger of God in the heart of man.” Saith Lord Coke in Calvin’s case (7 Rep., p. 21): “The law of nature is that which God at the time of creation of the nature of man infused into his heart, for his preservation and direction; and this is lex aeterna, the moral law, called also the law of nature. And by this law, written with the finger of God in the heart of man, were the people of God a long time governed, before the law was written by Moses, who was the first reporter or. writer of law in the world. ’ ’

The laws of men recognize the paramount office of the laws of nature in that regard, thereto ample authority might be cited if there was need of it.

Nor, whatever the doctrine of olden times or in other climes, does our modern law make a debtor a slave or serf of his creditor, bound to him as such serf or slave by either a legal “cable tow or silken thread.” Thereto the rule in equity agrees. Says Amis, J., in Daniel Webster v. Hildreth, 33 Vt. 457: “. . . and equity has no jurisdiction ... to compel men to work for their creditors who may perversely prefer to work for the benefit of their wives and children, and leave honest debts unpaid.” That pronouncement is the law of this jurisdiction. [Bank v. Adair, 172 Mo. l. c. 166.]

But the foregoing generalizations go with a grain of salt; for the moral law, recognized by the statute, which lays once for all upon the husband and father the inalienable, paramount and abiding duty to support wife and child, must not be used as a mere cover for fraud against creditors. When fraud comes in at the door all contrivances to consummate it fly out of the window in chancery.- Such use of a moral law is but to pollute a chaste hand, and a hand#once chaste but now polluted pollutes the gift it fetches. Such use perverts an abstract pious purpose into a concrete iniquitous device. The wise rule in equity is that, since the intimate relation of husband and wife affords a convenient and often-used opportunity and vehicle for fraud ou creditors, transactions between husband and wife in property matters are to be scanned with a jealous and discriminating eye by a chancellor when questioned by creditors, and the very marrow of the matter is to be searched to discern the true intendment of the thing, to the end that it may be held good or bad as just .equitable considerations point. [Cole v. Cole, 231 Mo. l. c. 255; Johnson v. Christie, 79 Mo. App. 46.]

(b) Quickened by .the foregoing precepts, we conclude the Madison tract is held by Kuhlmann’s wife in fraud of his creditors. It is clear she paid nothing for that piece of property. Indeed, as we see it, she makes no showing of parting with aught as a consideration therefor. To the contrary, Kuhlmann paid the entire consideration in his trade with Mast. Kuhlmann held the Pulaski farm subject to his debts. When his wife took title to the Madison tract Ottofy had judgment, and the Storage Company’s debt was soon to be put in judgment. The transaction was tantamount to a gift to his wife, and, by operation of law, was void as to creditors as constructively frau-' dulent. [Jordan v. Buschmeyer, 97 Mo. 94; Cole v. Cole, supra.] We have no doubt it was fraudulent in fact, but we put our holding on constructive fraud.

It was suggested below that the Sarah street property, traded by Kuhlmann for the Pulaski farm, was conveyed to Mm by his first wife in trust for Ms children.' The idea seems to be that he held the Pulaski farm as trustee for them, hence his creditors had no concern with what he did with it, nor could they follow its proceeds into the Madison tract. But that suggestion springs from an entire misconception of the record. The Sarah property was not conveyed to Kuhlmann subject to any trust express or constructive, but out-and-out, without condition or limitation.

Moreover, the contention comes with ill grace in this case; for it amounts to an attempt to escape a charge of fraud on creditors by confessing a fraud on the children of the first wife. Thereby blotting out a dark blot with a black one. At the time of the conveyance of the Sarah property, Kuhlmann’s first wife was in her last sickness. She made the conveyance through a conduit. During the conversation with her husband at that time, the conveyancer testified she admonished him to treat their children well. Being then about to die, the admonition is alone referable to her motherly solicitude and not to the creation of a trust in land. All parties so construed it; for the deed was written by a competent scrivener who received his instructions from the mouth of the grantor. It was made and accepted in absolute form, and thenceforth the property was dealt with as Kuhlmann’s absolute estate. When he traded it for the Pulaski farm he took title free from a trust. He traded that for the Madison tract and put the title to that in a step-mother free from any trust. Presently they borrowed money on the Madison tract for horse trading ends. In the face of such disloyalty to a trust, he may not speak for his children and say, when bought to book by creditors, that one exists. His children’s rights are not here for adjudication.

(c) Quickened by the same precepts we conclude the Cass tract is held by Kuhlmann’s wife in fraud of the three suing creditors. Equity looks to substance not to form. The question is, on one hand: Did Kuhhnann deal as a horse trader on his own capital? On the other, it is: Did he deal on his wife’s capital? If on his wife’s he may act as her agent, for she has an estate to preserve and manage. The gains are hers, hence the Cass tract purchased by those gains are hers. But if he dealt on his own capital, there is no room for agency. His posing as an agent under such circumstances is, necessarily, to be brushed aside as a cobweb of sham and pretence. In equity it furnishes no protection to either. We think it clear under this record that the claim of agency is a trick and subterfuge, that Kuhlmann is the owner of the capital embarked in his business, and as such owner the gains were his, ergo the Oass tract is his. Certainly she can not hold that tract as against his creditors unless she paid the consideration for it, for if he paid the consideration she stands charged in equity with a trust in his favor, she is seized to his use and such equitable title is wide open to his creditors.

The facts already sufficiently appear and speak for themselves in no uncertain tones. The $1000 embarked in the business, the proceeds of the loan on the Madison tract, were clearly his. The business he was conducting at the date of his second marriage was clearly his. It is attempted to excuse the transfer of the grocery store and the Madison street tract to her on the theory her money went into the business. But that idea involves a contradiction. If her money alone went into the business, and that business thereby became hers, why, oh that hypothesis, give her the grocery store and the Madison tract? But aside from that, the two items she claims to have put into the business are the $300 she had on hand at her marriage and the item of $750. There was another item, $52, which it is claimed she paid for interest on borrowed money. It was for the trial chancellor to say whether he believed her when she said she put $300 in the business at the outset. It was also for ln’m to say in the first instance whether if she did so', she was not recompensed thereafter when she received the grocery store. But little stress is laid on those items' in the brief of her counsel. The matter hinges on the deposit of $750 on the 28th day of December, 1898. Was that money, received from her mother the year before and preserved in an iron safe in her home, her money, or was it the money of Kuhlmann, paid to him on the Mast note on that very day? Under the contradictions, evasions and peculiarities in the testimony of Kuhlmann and his wife, it would have been a bold chancellor who would find in her favor on that issue. It seems on her theory her husband was shy of money at the outset for his business. By that token he was under the whip and spur of need. Why, then, was it laid away, kept for a year from him, and finally put to his credit the very day he got $800 of his own?

We conclude, as the chancellor below did, that Kuhlmann was doing business as a horse trader on his own money. His course of business for ten years lends color to that conclusion. The testimony shows she knew nothing about horse trading. We are inclined to take judicial notice of the fact that the traditional guile and adroitness of horse trading are of the masculine gender, and might well result in the guile and adroitness of the business scheme disclosed by this record.

The learned chancellor solved his problem correctly on the merits.

II. It is argued the petition is fatally defective. The question arose below at the trial after some evidence had gone in without objection. At that stage an objection was made to the introduction of testimony on the ground the petition did not state facts sufficient to constitute a cause of action. Error is now assigned thereon.

There are two forks to the contention, viz.: First, that the petition does not charge that at the time of the transfer complained of Kuhlmann was insolvent; nor, second, does it aver that plaintiffs have exhausted their remedies at law. There is no substance in the contention. This, because:

(a) An objection to the introduction- of testimony is late when made for the first time after substantial testimony has gone in. If tó be made at all, the objection is due at the first opportunity. Now the door of opportunity opens at the trial when plaintiff begins to offer proof. But the proposition need not break on so narrow a view.

(b) An objection at the trial to the introduction of testimony, because the petition is bad, is not allowed the broad office of a timely demurrer. In the science of practice codes a demurrer comes before an answer. The essential object of a demurrer is to avoid issues of fact and in lieu to invoke a trial on issues of law. But when an answer is in and the issues are made up, what does that mean? It means the sifting of pleadings is over and that the line of battle is' now pitched on the facts at a trial on the merits. Parties litigant thereby announce ready for trial on the-merits. Preparation for trial is invited, and expenses and labor follow. Thereafter and when parties appear in court with their witnesses and the trial is on, a halt of the trial by an objection made to the petition, is tolerated, but not encouraged by courts. It is not encouraged because it smacks of an ambush, of lying in wait, and there is an element of untimeliness and unfairness about it. It is tolerated because an answer does not waive such capital and radical defects in a petition as that.it lacks essential averments to a cause of action, and there is no aider by the answer. Such defects may be first challenged in a motion in arrest and it seems they are jurisdictional and may be raised for the first time in this court. [Hanson v. Neal, 215 Mo. l. c. 278.] Hence an objection to testimony on that ground is tolerated. An objection to the introduction of testimony is never sustained because of a lack of certainty or lack of definiteness in allegation, nor for informality in the statement of an essential fact, nor because a cause of action is defectively stated. Such objection is disallowed if by reasonable intendment, or by fair implication from facts stated, or if by most liberal construction the essential allegation may be got at by inference. The rule to go by in disposing of such objection is the same bland rule applied to ruling on motions in arrest. Wherein the grace of every implication is allowed to aid the verdict, and mere ambiguity in allegation is resolved in its favor.

The several propositions announced lie well within the authorities; for example: Grove v. Kansas City, 75 Mo. l. c. 675; Young v. Iron Co., 103 Mo. l. c. 327; Donaldson v. Butler County, 98 Mo. l. c. 166; Haseltine v. Smith, 154 Mo. l. c. 413; Broyhill v. Norton, 175 Mo. l. c. 202; State ex rel. v. Delaney, 122 Mo. App. l. c. 243; Alter v. Frick, 62 Mo. App. 453; Murphy v. Ins. Co., 70 Mo. App. l. c. 82, et seq.

In -the Donaldson case, supra, Black, J., comments on the fact that such objection comes after preparation for trial and “too late to deserve a very favorable consideration.” In the Delaney case, supra, Ellison, J., speaks of the right to make such objection as one “which has been expressed to be only tolerated.” In the Haseltine case, supra, this court speaks by Yalliant, J., thus: “While the court is bound to sustain an objection of that kind, even at that stage of the case, if it is well taken, yet it does not look with favor on that practice. The fair way is to challenge the sufficiency of the petition by demurrer in the beginning, and if it is adjudged insufficient and is susceptible of amendment, the fault may be corrected. If a party lies in wait for his adversary the court should not allow him an advantage that he could not have attained in the open field.”

In the Young case, supra, the petition did not allege the negligence of defendant brought about the injury. In that predicament, as against an objection to the introduction of testimony, this court blandly looked to an averment in the “prayer for relief” to' supply the deficiency.

(c) Applying the principles announced in paragraph “b,” the petition must be held sufficient as against the objection in hand. It alleges that Kuhlmann has no other property out of which the judgments can be satisfied; that the judgments remain unpaid; that the conveyances assailed were taken and caused to be made fraudulently to hinder, delay and defraud creditors; that one of the judgments remained unsatisfied for nearly ten years and was then revived by a judicial proceeding; that the title to the Madison and Cass tracts was covered up to prevent the collection of the judgments; and that unless those tracts can be reached to exact payment the judgments must remain unpaid. There is no direct allegation that Kuhlmann was insolvent, but his insolvency is implied in the allegations of fraud, and its existence when the suit was begun sufficiently appears. Fraud could not- result except through injury, and injury could not result except through insolvency. There is no direct allegation that plaintiff is remediless at law, but inferentially that allegation is made.

Moreover, where could plaintiffs go except to equity for full and rounded relief against frauds whereby the legal title to Kuhlmann’s real estate is held in the name of his codefendant? They certainly were not obliged to issue fi. fa., sell under their judgments and thereafter knock at the door of equity for relief. As they had to end in equity they might as well begin in equity. They sue to obtain a decree whereby their judgments may become effective. That was a more equitable course for appellants than to have first forced a sale under the judgments, and let the purchaser of such sale then sue to vest title out of the wife and into him. [Welch v. Mann, 193 Mo. l. c. 326, et seq.] Nor were they’obliged to issue fi. fa. and search for personal property. Why do that when the petition makes allegations wherefrom it is apparent that course would be useless? Equity requires no vain and nugatory thing to be done.

We rule the point against appellants.'

III. The court provisionally admitted over the objection of appellants a copy of the deed whereby Knhlmann took title to the Pulaski farm. The records of that county were burned and the custodian of “Johnson’s Abstracts” supplied a copy by virtue of a special and local law (Laws of 1905, p. 150 et seq.). The point made in appellant’s brief is that the special act was not introduced in evidence. But the bill of exceptions shows the act was actually in court and that appellants’ counsel read therefrom to the trial judge. Was that not a waiver of a formal introduction in evidence ?

But we do not decide the question. The point now made was not made below. The point made below is not made here. Such mending of holds, and swaps of position will not do.

Moreover, the title to the Pulaski farm was not the issue in the case; it is only involved incidentally. There was proof of Kuhlmann’s ownership aliunde, and both sides tried the case throughout on the theory he was such owner. We could not well reverse the decree under such circumstances, for the error, if error it was, is harmless.

The point is disallowed to appellants.

The decree does not vest the whole title out of Mrs. Kuhlmann. It merely makes her title subject to plaintiffs’ judgments and makes them a charge •on both tracts. Payment will execute the decree and payment out of them both is plaintiffs’ equitable right.

Wherefore the decree is affirmed. It is so ordered.

All concur.


source: Caselaw Access Project

author: GRAVES, P. J.

license: Public Domain

text:
    CLARISSA E. GOODMAN et al., Plaintiffs in Error, v. JAMES E. GRIFFITH et al.
    Division One,
    December 23, 1911.
    1. TESTIMONY: Held Incompetent; Equity: Review on Appeal. Where it is evident from an examination of the record that the chancellor held the testimony of the lawyer who drew testatrix’s will, as to information received by him from her at the time he drew it and as to what then occurred, to be privileged and incompetent, that ruling, made on behalf of appellant, will not he reviewed on appeal.
    2. -: Consideration for Deed: One Dollar: Undue Influence: Deceased Grantor’s Reasons. In a suit to set aside the deed of a deceased grantor to her son, testimony that said son had done much for her in the way of looking after her and her business matters for a long series of years, and that she said, after she became possessed of a large estate, that she was now in position to repay said son for his trouble and expected to do so, was competent, for two reasons: First, because the petition charged that the deed was the result of undue influence exerted over her by the son, and it was competent upon that issue; and, second, the deed recited a consideration of “one dollar and other good and valuable considerations to be paid,” and in such case the actual consideration may always be shown.
    3. DEED Delivery: Record After Death. Where the deed was actually delivered to the grantee a short time after it was signed, with the request from the grantor that it be not recorded until after her death, because she did not wish to be harassed by her other heirs, and after her death it was recorded, it was delivered in her lifetime. Testimony of some witnesses that, after the making of the deed, she had said that the lawyer who drew it had told her she could .recall it at any time, was not competent to prove the fact, and did not invalidate the delivery already made.
    4. -: Undue Influence: Care of’Son for. Mother: Fiduciary Relation. Expressions, voluntarily and repeatedly made by a mother, both before and at the time when, in full mental vigor, she executed the deed conveying a valuable farm to a dutiful son, that she felt under pecuniary obligations to him for the sacrifices he had made for her and the work and loving service he had rendered her during her early widowhood and for the considerate and sacrificing care he and his wife had rendered her in her old age, rebut the presumption that the deed was the result of undue influence exercised by the son or his wife over her, even though it be admitted that a fiduciary relation existed between them at the time and continued to her death. An influence superinduced by the natural kindly acts of a son towards an aged and dependent mother is not an undue influence within the meaning of the law.
    Error to Louisiana Court of Common Pleas .—Hon. David H. Eby, Judge.
    Affirmed-.

      Ball é Sparrow and Dempsey & McGinnis for plaintiffs in error.
    (1) The court permitted, over the objections of plaintiffs, incompetent and illegal evidence, especially as to the admission of evidence of J. E. Thompson, lawyer, who wrote the deed in question for deceased. R. S'. 1909, sec. 6362; State v. Dawson, 90 Mo. 149; 1 Greenleaf on Evidence, sec. 240; Henry v. Buddicks, 81 Mo. App. 360'; Ingerham v. Weatherman, 79 Mo. App. 480; Sweet v. Owens, 109 Mo. 1. (2) The court permitted illegal and incompetent evidence as to the consideration of the deed. (3) The findings and judgment of the trial court should have been for the plaintiffs and against the defendants. Therefore, the findings and judgment of the court are erroneous. Ennis v. Burnham, 159 Mo. 494; Turner v. Turner, 44 Mo. 535; Cadwallader v. West, 48 Mo. 483; Ranken v. Patton, 65 Mo. 378; Ryan v. Ryan, 174- Mo. 279; Reed v. Carroll, 82 Mo. App. 102; Mowry v. Norman, 204 Mo. 173; Bradford v. Blossom, 190 Mo. 110; Roberts-v. Bartlett, 190 Mo. 680 (hut see p. 700); Durfee v. Bartlett, 57 Mo. 374; Leavitt v. LaForce, 71 Mo. 353 ; Armstrong v. Logan, 115' Mo. 465; Dausman v. Ran-ken, 89 Mo. 677; Reid v. Carroll, 82 Mo. App. 102.

      J. D. Eostetter and J. E. Thompson for defendants in error.
    (1) Although the trial court ruled that Thompson’s evidence so far as communications made to him by Mrs. Bralley, was incompetent, plaintiffs have seen fit to collate authorities and make this point as though the court’s ruling had been against them. The statute is only leveled .at communications made' by a client to the attorney, and this the court upheld. (2) The testimony given by Mrs. Goodman as to conversations had with her mother, as to the circumstances under which the deed was executed, outside of the presence and hearing of defendants, was wholly incompetent, and the court erred in admitting such testimony. Such testimony is only admissible to show .the state of the affections of the- testator or grantor, and never as proof of the facts stated, and where, as in this case, the mind of the testator or grantor is not in any manner attacked or brought in question, they are not admissible for any purpose. Such declarations have no probative force to establish undue influence, etc. They are never admissible as evidence of the facts mentioned in the declaration.' Jones v. Thomas, 218 Mo. 543; Jones v. Roberts, 37 Mo. App. 163; Doherty v. Gilmore, 136 Mo. 414; Rule v. Maupin, 84 Mo. 587; Bush v. Bush, 87 Mo. 480; Schierbaum v. Schemme, 157 Mo. 1. (3) There is no presumption against a voluntary conveyance from a parent to a child. Doherty v. Noble, 138 Mo. 25. There is ordinarily no presumption that the gift of a parent to his child is invalid when the parent is of sound mind. Hamilton v. Armstrong, 120 Mo. 616. (3) The law presumes much more in favor of a delivery of a deed in cases ' of voluntary settlement in favor of a wife, child or near relative, than it does in ordinary cases of bargain and sale between strangers. Rumsey v. Otis, 133 Mo. 95; Hamilton v. Armstrong, 120 Mo. 616. (4) The consideration clause in a deed is always open to explanation, and it is always competent to- show what the actual consideration of a deed is. Kincaid v. Irvine, 140 Mo. 615; O’Day v. Conn, 131 Mo. 321-; Squier v. Evans, 127 Mo. 514; Bank v. Anil, 80 Mo. 201; Baile v. Insurance Co., 73 Mo. 371. (5) The issue of undue influence being, one of fraud or bad faith, it devolves upon him, who charges undue influence to prove it. Carl v. Gabel, 120 Mo. 297; Doherty v. Gilmore, 136 Mo. 414; McFadin v. Catron, 138 Mo. 219. (6) While fraud may be deduced from the circumstances of the case and the acts of the parties, yet mere suspicion is not sufficient, nor can it be presumed, but must' be established as an affirmative fact, and if they consist as well with honesty as with fraud, the transaction should be held honest. Bank v. Worthington, 145 Mo. 91; Chapman v.-McIlwrath, 77 Mo. 38; Webb Admr. v. Darby, 94 Mo. 621. (7) Even admitting the defendant Griffith had influence over his mother (which we do not, other than as ordinarily a son has), there is no evidence that he exercised such influence, not even in the testimony of Mrs. Goodman. “It is not the existence, but the exertion of that improper influence, which invalidates the transaction.” Sunder-land v. Hood, 84 Mo. 297; Brinkman.v. Rueggesick, 71 Mo. 556; Doherty v. Noble, 138 Mo. 32; McKinley v. Hensley, 74 Mo. 332; Jackson v..Hardin, 83 Mo. 185. (8) The fact that an old man acts under the advice of his son in his ordinary business affairs, and is influenced by his affections for him, does not tend to prove undue influence in his execution of a deed to his son. Francis v. Wilkinson, 147 111. 370. The settled meaning of undue influence in this State is such influence “as amounts to over-persuasion, coercion of force destroying the will power of the testator. It is not merely the influence of affection, nor the desire of gratifying the wishes of one beloved or trusted by the testator.” Tibbe v. Kamp et al., 154 Mo. 545. It must amount to moral coercion. Norton v. Paxton, 110 Mo. 456; Carl v. Gabel, 120 Mo. 297; Luebbert v. Brockmeyer, 13*8 S. W. 92; Turner v. Anderson, 236 Mo. 523. Such a fiduciary relation between parent and child as casts on the child the burden of proving that the conveyance to him from the parent was the free will of the parent, does not arise merely from the fact that an aged and infirm parent is under the ministering care of a son who attends to the business of the parent as to renting his farm and negotiating a loan. Huffman v. Huffman, 217 Mo. 182; Winn v. Grier, 217 Mo. 420; Jones v. Thomas, 218 Mo. 508'.
   GRAVES, P. J.

Action in equity to set aside a deed to certain real estate in Pike county, made July 2, 1903, by Emily Bralley to her son James E. Griffith and his wife, Kate Griffith, and to partition the said lands. The petition also speaks of a will executed at the same time. The charging part of plaintiffs’ bill in equity, in so far as is material, is as follows :

“Plaintiffs further represent to the court that soon after the death of the said George L. Bralley, the said husband of the said Emily Bralley, deceased, the said defendant, James E. Griffith, moved from Bowling Green, Missouri, to the city of Louisiana, Missouri, and into the home of his mother, Emily. Bralley, and continued to reside in said home until the death of his mother, Emily Bralley. That said'Emily Bralley was quite old and directly under the influence of the said defendant James E. Griffith; that the said de-. fendant, James E. Griffith, contriving and designing to surreptitiously divest and deprive plaintiffs, who, with the exception of James A. Goodman, A. D. Cloyd and M. M. Gillum, are the children, grandchildren and great-grandchildren of the said Emily - Bralley, deceased, of any interest in her estate, by false and fraudulent representations, and by a systematic course of either remaining with her, or having some member of Tiis family do so, during all the time, thereby trying to prevent the said Emily Bralley, deceased, from having open and free communication with her kindred and friends, and especially her daughter, Clarissa Eugenie Goodman, and by undue influence, did, on the 2nd day of July, 1903', persuade, entice and induce the said Emily Bralley to. make to said defendants a deed to the following described real estate, which said deed is in words and figures as follows, to-wit: [Deed omitted and will omitted.]
“That said defendant James. E. Griffith, for the purpose of carrying out his unfair designs and the control and influence he had over his said mother, persuaded and influenced her to go, and he did take her, to the city of Bowling Green, Pike county, Missouri, to the home of J. E. Thompson, son-in-law of defendants, and a lawyer by profession, and while she was there at the home of said Thompson, he prepared and in connection with the said defendant James E. Griffith, persuaded and induced the said Emily Bralley to execute said deed and said last named document called a ‘will.’ That said pretended deed and said pretended will were executed on the same day and at the same time and simultaneously one with the other.
“Plaintiffs further state and charge that there was no consideration paid the said Emily Bralley for the execution of said pretended deed, and that the said pretended deed and said pretended will, when so executed as aforesaid, were left in the possession of said J. E. Thompson and were to be returned to the said Emily Bralley when she so directed, but that said Thompson and said defendant, James E. Griffith, though often requested to return said pretended deed and said pretended will, refused so to do, but retained the same, and immediately upon the death of the said Emily Bralley, the said Thompson had said deed recorded in the recorder’s office of Pike county, Missouri.
“That said defendants, especially the said James E. Griffith, acted as above stated in conjunction with the said J. E. Thompson for the purpose of inducing his said mother to deed and will to defendants her property, for the purpose of defrauding his sister and nephews and nieces, the plaintiffs in this cause, out of their share in the estate of the said Emily Eralley, deceased.”

The prayer was that said deed be set aside and for naught held and that partition be made of the real estate described.

The answer was (1) a general denial, and (2) the defendants averred the due execution and delivery of said deed and that the same was the free and voluntary act of the grantor therein, for the consideration in such deed recited.

Upon a trial the judgment was for the defendants, fully sustaining said deed. Such judgment elaborately goes into the facts of the case, and makes a finding upon all disputed matters, but the above will suffice 'for the present. After an unsuccessful motion for new trial the plaintiffs bring the case here by writ of error.

The assignments of error cover, (1) the admission of incompetent evidence, and (2) that the judgment was for the wrong party. This sufficiently states the case.

I. Defendants in error raise the point that the writ of error was not sued out within time, i. e., within one year. They have lodged herein proper motions to quash the writ for that reason. There are minors as well as adults in the case. Defendants say that the writ should be quashed as to all. An interesting-discussion is made, but with the view we have of the merits of the case we shall not spend force upon this question.

II. (a) In 1903, on July 2nd, Emily Bralley made and executed a deed (the one in dispute) by which she conveyed her home place in the city of Louisiana, Missouri, to her son James E„ Griffith, and his wife Kate. At the same time she executed a will (set out in the petition in this case) by which she gave one-half of her property to her son, James E. Griffith, and the other one-half to her said son for the use and benefit of her daughter Clarissa E-. Goodman, during her life, and thereafter to her heirs freed from the trust. These two instruments were drawn by Judge J. E. Thompson at her request and he was offered as a witness in the case. Judge Thompson, over the objection of counsel for plaintiffs in error," was permitted to testify quite fully as to what was said as between him and Mrs. Bralley. The objections ran along with the testimony and seem to have been held under consideration by the court. Finally the trial court thus delivered itself upon the question:

“By the Court: I will state that since adjournment last evening, in reviewing some of the objections made to the admissibility of testimony, to-wit, the testimony of Judge Thompson, I am satisfied that his testimony with reference to the drawing of the will and the deed should be regarded as having been under the relation of attorney and client as between him and Mrs. Bralley, and his testimony as to those facts, that is, as to the information received from Mrs. Bralley in connection with that matter, would be incompetent; I call attention to it now, I think that is always fair on the part of the court, so if the parties desire to introduce further testimony by reason of the court’s views on that line of the case, they would have the privilege of doing so.
“Mr. Ho,stutter: The court only holds his testimony as to what transpired between him and Mrs. Bralley is incompetent.
“By the Court: Yes.”

Notwithstanding this statement of the court counsel here urge that error was committed in receiving and considering the testimony of Judge Thompson. Prom the time the court made this deliverance the record fails to show. any change of mind upon the part of the court. It is evident from this and all that follows in the record that the trial court did not consider that portion of Judge Thompson’s testimony which, under the general rule in cases of attorney and client, might he said to be privileged. Under this state of facts it is unnecessary for us to discuss the question as to whether or not this portion of the witness’s testimony was competent in this particular case. The trial court held it to be incompetent and that fully meets the demands of plaintiffs and we need take no' further notice of it. As to other matters the testimony of the witness was clearly competent, notwithstanding the fact that he was the son-in-law of the defendants in error.

(b) The next contention as to the admission of evidence is that the court admitted improper evidence as to the consideration of the deed. The defendants introduced evidence tending to show that James E. Griffith had done much for his mother in the way of looking after her and her business matters for a long period of years.’ It was also shown that the mother said, after the death of her last husband and she became repossessed of her quite large estate, that she was now in position to repay James E. for his trouble, and expected to do it. This is the evidence objected to by counsel for plaintiffs, and faintly presented by assigned error here.

This evidence is competent upon .more than one theory of the case. The question of undue influence is an issue, and it was competent upon that issue. Again, the deed recited a consideration of ‘1 one dollar and other good and valuable considerations to be paid by the said parties of the second part.” The actual consideration for a deed may always be shown, as also can the want of consideration. This hardly needs citation of authority. The consideration clause of a deed is always open to explanation. [O’Day v. Conn, 131 Mo. l. c. 327; Squier v. Evans, 127 Mo. l. c. 519.]

This disposes of all assignments of error except the general one that the finding and judgment should have been for the plaintiff in error.

III. Going now to the merits of this case, the contention of counsel may be thus stated: The deed in question is bad because (1) it was the result of undue influence upon the part of the grantees therein, (2) it was procured by false and fraudulent representations, (3) it was .without consideration, and (1) it was never delivered. Of these contentions in reverse or-', der.

(a) That there was a delivery of this deed under the evidence we think cannot well be questioned. Excluding the testimony of Judge Thompson who wrote • the deed, we have the undisputed evidence of Mrs. Thompson, his wife, and J. S. Fitzjerrell, the attorney and notary who took the acknowledgment of the deed. Both of these witnesses say that the grantor directed that the deed be delivered to James E. Griffith, and that he be requested not to record it until after her death. The grantor explained to them why she made the request as to the recording. Her reason was that she did not want to be harassed by the plaintiffs in error. The deed was in fact delivered to Mr. Griffith the day after its execution in accordance with the directions given by the grantor. • The only evidence opposed to the positive testimony of these witnesses is the statement by some of the plaintiffs that the grantor, after the making of. the deed, had said that Judge Thompson had told her that she could recall the deed at any time or something to that effect. Their statements were not competent to prove the fact. It is” also extremely doubtful whether or not the grantor in the deed was mentally sound at the time of such alleged statements, but this is rather immaterial. The court did not err in finding that the deed had been delivered in the lifetime of the grantor, although held from record at her request.

(b) The other three questions can best be considered together. They each call for disclosure of •more facts. At the time of making the deed the grantor was about eighty years of age, but in the possession of full mental vigor. She lived two years or more thereafter, and having Bright’s disease her mind failed her several months before her death. It is not urged that the grantor was not mentally capacitated to make a deed in July, 1903, and were it urged such contention would be overwhelmingly refuted by the evidence. Mrs. Bralley had been married three times. The first husband was Noah Griffith, the ancestor of the plaintiffs and of the defendant James E. Griffith. The second was John Griffith, a cousin of the first husband, and the third was Dr. Bralley. No children resulted from the second and third marriages. By the second husband a considerable amount of property was acquired by the wife. The third marriage was stormy for awhile, but presently Dr. Bralley got possession of the money, and things moved more amicably. There were two or more separations and as many reconciliations. Shortly before the making of the deed in question Dr. Bralley, the third husband, died, leaving a will, by the terms of which the widow became repossessed of all her property and its accumulations if any. There was a farm of 230' acres worth $9000', and the property in dispute, worth from $5000 to $7500, according to the testimony, as well as other -property, including - a good-sized judgment against the Goodmans. The evidence shows that defendant James E-. Griffith had promised his father upon his death-bed that he would look after his mother. That in compliance with that promise he quit college, gave np his ambition of becoming a professional man (lawyer), and did look after his mother and sisters. The second husband lived but a year,' or about that length of time, .and the son was again compelled to look after the mother and assist her in the management of her property. The third marriage followed in a little less than two years, and during the stormy portion thereof the son was again to the rescue of the mother. After the death of Dr. Bralley, the mother, for a third time disconsolate and alone, sent for her son, and he broke up his home in Bowling Green, aud with his wife moved to the homestead in Louisiana, and there remained comforting and caring for the mother until the final call. That James E. Griffith was a dutiful son, and that he sacrificed much cannot be gainsaid under the record before us. But leaving this topic for the present we take up another.

Just after the son had moved to Louisiana to care for his mother she repeatedly said that, now she was in a position to do it, she was going to repay Jim Ed. (the defendant) fox his trouble and kindness. Shortly following these expressions came the deed and the will we have described. The evidence also shows that the mother had in a financial, way assisted the other children. Two had died before the mother, leaving the grandchildren who are plaintiffs here. Mrs. Goodman and James E. Griffith were the only surviving children'. Judgments were pending against Mrs. Goodman and her husband. Under these circumstances Mrs. Bralley went from Louisiana to Bowling Green with Mr. and Mrs. Griffith. They visited the family of Judge Thompson, whose wife was a granddaughter of Mrs. Bralley, and. the daughter of these defendants. At the dinner table Mrs. Bralley stated to Judge Thompson that she wanted to talk to him about some business and asked when she could see him. He said they could talk then. Accordingly they and Mrs. Thompson, upon the close of the meal, repaired to the sitting-room, and she then told Judge Thompson that she wanted Jim Ed. and Kate (the defendants) to have the home place at her death and asked him how it could be done. Judge Thompson told her that she could make a deed to them and reserve to herself a life estate, and in this wise leave to herself the use and occupancy of the house as long as she lived. She directed the deed to be thus drawn and it was acknowledged and delivered in manner as above detailed. She also stated that she desired the remainder of her property to go to her living children (James E.. Griffith and Mrs. Goodman), but that she did not want any of her property to pay the debts of Mr. Goodman, and asked how that could be done. Judge Thompson then told her that she could make a will, placing the interest of Mrs. Goodman in trust during her lifetime, and then have it go to the children, and this she directed to be done. Mr. Fitzjerrell witnessed the will at the time he took the acknowledgment of the deed. Neither Griffith nor his wife was present at the time this talk was had. At Mrs. Bralley’s direction the will was held by Judge Thompson.

Was there undue influence in this case? The evidence discloses that the grantor in the deed was a self-willed woman. It is true that in her previous trouble she advised with her son. It is true that the son had at times acted as the agent of the mother, but not for some years prior to the death of Dr. Bralley the husband. It is true that after the death of Dr. Bralley, at the request of the mother he came to. her’ home to care for in her old age, and whilst we are not fully convinced that the relationship thus created was sufficient to be called a fiduciary relation, yet we shall consider the case as if such a relation did in fact exist. The evidence shows that this son had sacrificed much for his mother. The evidence shows her oft repeated expressions' of an intent to do something for him. The property was hers, and she had the right to do with it as she pleased. There is no direct evidence that the son or his wife ever attempted to persuade or induce the mother to make the deed in question. As to the charge of coercion there is not the faintest evidence. Plaintiffs do say that the son or his wife were continuously with the mother, and thereby the other heirs were precluded from private interviews with the deceased. This position is thoroughly discredited by a mass of testimony. The plaintiffs, according to their statement, knew of the deed shortly after its execution; and after the old lady had become practically non compos mentis procured the execution of a will, in which the testatrix undertook to recall any unrecorded deed which she had made. We doubt very much whether Mrs. Goodman and the other plaintiffs knew of this deed as they claim. Had they known of it, and the property by it conveyed, they would, when they wrote the last will for deceased (for the evidence is pretty clear that the weakened mind of Mrs. Bralley was not the author of this last will), have been more particular in describing the deed they desired to be cancelled and recalled. It strikes me that they were suspicious that some deed might have been executed and delivered, and in an attempt to obviate its force prepared the short but blanket-like will. But be that as it may, it is not a turning point in the case. Grant it that by reason of the alleged fiduciary relation the burden as to this deed has been shifted to the defendants, yet the trial court was right in disallowing the claims of undue influence. At the making of the deed the grantor fully explained her reasons therefor. Both before and after its execution she said that she felt under pecuniary obligations to the son for the sacrifices which he had made for her and the actual work he had done for her. At those times she was fully possessed of her usual mental vigor. These expressions, voluntarily and repeatedly made, rebuts the presumption of undue influence, and with that out of the case, there is no substantial evidence tending to show undue influence. An influence superinduced by the natural kindly acts of a son towards an aged and dependent mother is not an undue influence within the meaning of the law. But in this case we need hardly consider such an influence. It is clear that the mother was conscious of an obligation upon her part to do something for the son in return for what he had done for her, and gave to him and his wife her homestead. The son’s wife had been dutiful toward her. She had broken up her own home to come and minister to her wants during the few remaining years of her life. To our mind this deed was but the promptings of the old lady’s sense of right and justice. What we have said not only disposes of the question of undue influence, but likewise the question of coercion and want of consideration. The judgment nisi was for the right party and is therefore affirmed.

All concur.


author: WOODSON, J.

text:
    THE STATE ex rel. DOROTHY E. COOPER et al. v. JAMES E. GOODRICH, Judge, et al.
    In Banc,
    December 23, 1911.
    1. JURISDICTION: Title to Real Estate: Injunction to Stop Removal of Timber. A suit by injunction, brought against the owners of land, to enjoin them from interfering with plaintiffs’ right, under a contract with the owners’ grantor, to cut the growing timber thereon and to remove the same, does not involve or affect the title of the real estate, nor the right to the possession of the land.

      2. -: -: -: Where Brought. And where all the parties, both plaintiffs and defendants, reside in one county, and.the land lies in another, the injunction suit, to enjoin the owners of the land from interfering with plaintiff’s right to cut and remove the growing timber, may he brought in the circuit court of the county wherein the parties reside.
    Prohibition.
    Peremptory writ denied.

      Halbert H. McCluer and Omar E. Robinson for relators.
    By an examination of the petition, it will he seen that the plaintiffs in the injunction suit claim to he the owners and entitled to certain timber now standing on a large tract of land situated in Osage county, this State, and that they have the right to enter upon said land and cut and remove the timber thereform, and further claim that the relators are interfering with their. right to enter' upon said land and cut and remove said timber. The answer of the defendants, relators herein, alleges that they are the absolute owners of the said land,- situated in said Osage county, with all the right, privileges and immunities thereunto belonging, including the timber standing thereon, and that they are now and for a, long time past have been in the exclusive, peaceable possession of said land and the timber thereon; and denies that the plaintiffs in said suit have, or ever had, any interest in said land or the timber growing thereon, and denies that they have, or ever had, the right to enter upon said land and cut or remove any of the timber therefrom, and denies that said plaintiffs were ever in the possession of said land for the purposes of cutting timber therefrom or had any right to so be on said land prior to the institution of the suit. The determination of the issues thus presented necessarily involve the determination of the ownership of the trees growing on said land, and also the possession of the land, and the right to same, and the right of the plaintiffs in said suit to enter upon said land and cnt and remove the timber therefrom. These relators contend that those issues involve the determination of the possession and title to real property within the meaning of Sec. 1753, E. S. 1909', and that consequently the circuit court of Jackson •county, is without jurisdiction to hear or determine them. Patter v. Everett, 10 Mo. App. 152; State ex rel. v. Muench, 225 Mo. 210'.

      Warner, Bean, McLeod & Timmons for respondents.
    (1) "Whether the circuit court has jurisdiction is ascertainable only by reference to the averments in the petition (second amended petition) on which the injunction suit is pending. State ex rel. v. Wood, 155 Mo. 415. (2) Under the allegations of the petition for injunction, the plaintiffs therein were entitled, to take and use the timber in question for the uses and purposes of manufacturing charcoal at their plant on said lands. This right was a property right. Lytle v. •James, 98 Mo. App>. 312. Plaintiffs were engaged in exercising that right when defendants interfered; and it was to prevent such interference that the injunction suit was brought. (3) Injunction will lie to enjoin one from interfering with another in his right to remove timber. Gress Lumber Company v. Leitner, 18 S. E. 62. (4) The statute (E. S. 1909, sec. 1753), applies •only to cases in which the judgment will operate directly on the title, and not where it may be merely a subject of collateral inquiry. Hewitt v. Price, 230 Mo. 31; State ex rel. v. Dearing, 180 Mo. 53; Carter v. Arbuthnot, 62 Mo. 582. It is also held that title to land-is not. affected by an action for trespass. Railway v. Mahoney, 12 Mo. 467. Nor is title to land affected by a suit to cancel notes for a part of the purchase money on lands, and restraining foresclosnre of the deed of trust given to secure the notes. Crommer v. Dickman, 180 Mo. 148; State ex rel. v. Dealing, 180 Mo. 53. We concede that if this will affect title to real estate, within the meaning of Sec. 1753, R. S.1909;, then the circuit court has no jurisdiction. But we contend that title to real estate is not so involved as to deprive that court of jurisdiction.
   WOODSON, J.

This suit involves but a single proposition of law, the facts being practically undisputed.

The relators, under an assignment of a contract, made and entered into by and between one Allen and their ac'°ignors, claim the right to continue the possession of and to cut and remove standing timber from a certain tract of land situate in Osage county Missouri.

The title to the lands, some three thousand acres, through mesne conveyances, became vested in the respondents, Cooper et al. Since, however, there is no question raised regarding the purchase without notice, etc., we will put those conveyances aside.

After Cooper et al. became the owners of the land, they objected and prevented respondents from further entering, cutting and removing said timber from said lands which they had previously been doing without question.

Thereupon the respondents instituted a suit in the circuit court of Jackson county, seeking to enjoin Cooper et al. from interfering with their rights of possession and right to cut and remove said timber.

All of said parties were residents of Jackson county at the time of the institution of said injunction suit.

After service was had upon the defendants, Cooper et al., in that case, in proper time and in due form, they challenged the jurisdiction of the circuit court of Jackson county to try and determine the same, upon the ground that the title to real estate was involved, for the reason that growing timber is a part of the land upon .which it is grown, etc., and consequently such a suit under óur statutes .must be brought in the county where the land is situate.

Upon an adverse ruling made by the court to the defendants, Cooper et al., they applied to this court for a writ of prohibition, seeking to prohibit the respondents from further proceeding with the trial of said cause in the circuit court of Jackson county.

As previously stated the only question presented, by this record for determination is, has the circuit court of Jackson county jurisdiction to try an injunction suit brought therein, by the plaintiffs, seeking to prevent the defendants therein, from interfering with the rights of the former, that is, to continue to cut and remove standing timber from lands situate in Osage county? The respondents affirm said jurisdiction, .while relators deny it.

If we correctly grasp the full meaning of relators ’ contention, it is this: That in order to decide this case in favor of the respondents, this court must hold: First, that relators are entitled to the possession of the land mentioned, for thé purpose of cutting and removing the timber therefrom; and, second, that growing timber is not a part of the land upon which it is growing, and consequently is not real estate within the meaning of section 753, Revised Statutes 1909, which reads: “Suits for possession of real estate, or whereby the title thereto may be affected shall be brought in the county within which such real estate, or some part thereof, is situate.”

There can be no question at this late day, but that growing crops and growing timber, as between grantor and grantee, are parts of the land upon which they are growing. The text-writers and the adjudications of the courts upon that question are uniform in so holding. This court has so held in a number of cases. In fact that doctrine is elementary. [Mcllvaine v. Harris, 20 Mo. 458; Pratte v. Coffman's Exr., 27 Mo. 424; 4 Kent’s Comm., 518, 519; 1 Greenleaf, Ev., 352; Willard, Real Prop., 32; Kittridge v. Woods, 3 N. H. 503; Bank v. Wise, 3 Watts, 394; Foote v. Colvin, 3 Johnson, 216.]

That proposition of law is not questioned by counsel for the relators, but they insist that the title to the real estate mentioned is not questioned, but concede it to be in the defendants in the injunction suit, and that the determination of this or that case in favor •of the relators will in no degree affect the title of the respondents to the land upon which the timber is standing, nor can the injunction suit be held to be a suit for the possession mentioned, for the simple reason that they had that possession at the time of the institution of the injunction suit, and still have it.

This question was presented to this court in the case of Turner v. Morris, 222 Mo. 21. There the question presented involved growing wheat (which as we have seen is the same as growing timber), the value of which was below the jurisdiction of this court, and the respondent there moved to have the cause certified to the court of appeals, for the reason that the title to real estate was not involved. While it is true that case did not involve the construction of the section of the statute before quoted, nevertheless, the question here presented is identical with the one .there determined. In discussing that question the court, on pages 22 and 23 said:

“Counsel for respondent insists that this court had no jurisdiction to entertain or determine this appeal, for the reason that the amount involved is under $4,500, and that title to real estate is not involved within the meaning of section 12 of article 6 of the Constitution, which gives this court appellate jurisdiction of cases involving title to real estate.
“In onr opinion that insistence is well taken, for the reason that we have repeatedly held that before an appeal can be entertained by this court on the’ground that title to real property is involved within the meaning of that section of the Constitution, the record must show that the title to the real estate mentioned in the pleadings will be directly affected by the judgment or decree to be rendered in the cause. And, although the title thereto may be incidentally, collaterally or unnecessarily inquired into at the trial, for the purpose of determining the issues involved, yet, if the judgment or decree rendered by the trial court does not directly affect the title to the real estate, and can be satisfied by the payment of money, then the appeal should go to the Court of Appeals. [Price v. Blankenship, 144 Mo. 203; Balz v. Nelson, 171 Mo. l. c. 688; Christopher v. Home Saving Assn., 180 Mo. 568.]
“Uhder no possible circumstances could the judgment rendered by the circuit court in this case affect the title to the real estate purchased by appellant from respondent; and the same may be satisfied by paying $82.50, the amount of the judgment, with interest and costs.
• “We are, therefore, of the opinion that this court has no jurisdiction over this appeal, except to certify it to the St. Louis Court of Appeals, which is accordingly done.”

That ruling is controlling here.

We therefore, deny the peremptory writ prayed for, and quash the preliminary rule heretofore issued.

All concur.