author: BLAIE, C. PER CURIAM. LAMM, C. J.

text:
    ALICE HUNT v. ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY, Appellant.
    In Banc,
    December 1, 1914.
    NEGLIGENCE: Contributory: Asleep Near Railroad Track: Train Violating Speed Ordinance. The defendant’s railroad enters the city of Cape Girardeau 130 feet north of Sloan creek, and for about 800 feet north of the bridge over that creek the track is straight. A city ordinance puts the speed limit at five miles an hour within the city limits. At 1:30 a. m. the defendant’s passenger train rounded the curve north of Sloan creek running forty miles an hour, and when about 700 feet north of the bridge the engineer saw the plaintiff’s husband lying near the track. The engine struck and killed him while it was running, the engineer says, perhaps fifteen or eighteen miles an hour. The plaintiff’s petition, in her suit for damages, contained two counts, the first based on the humanitarian doctrine, the second on a violation of the speed ordinance. The jury found for the defendant on the first count, and for the plaintiff on the second. The defendant alone appeals. Held, that the judgment must be reversed, the evidence showing contributory negligence on the part of deceased as a matter of law, in that he must have been asleep with his head almost upon the rail. [LAMM, C. J., and WALKER, J., dissenting.]
    Appeal from Cape Girardeau Circuit Court. — Hon Henry G. Riley, Judge.
    Beversed.

      W. F. Evans, Moses WhybarJc and A. P. Stewart for appellant.
    (1) The case was one of mutual fault, to say the least of it, and the law will not cast all the consequences on the defendant, nor will it attempt any apportionment of it. Zumault v. Eailroad, 175 Mo. 288. In this case Zumault at night, while waiting for a train, sat down on the platform and went to sleep, and was struck by a train. . (2) The deceased lived near the railroad, a few feet from it, and knew of approaching trains, yet he lay down — all of his body off the track and his head resting on the west rail. He knew that trains would pass, and their time at that point, and plaintiff is not entitled to recover. The law is well settled that where one even negligently places himself in front of a rapidly approaching train and is injured thereby, he cannot recover if the employees in charge of the train used reasonable care to avoid the injury, after they discovered his perilous position, or by the exercise of ordinary care might have discovered it. Harlan v. Railroad, 64 Mo. 483. When one wilfully exposes himself to danger and is injured,-there is no liability no matter what the result may be. Prewitt v. Eddy, 115 Mo. 283; Prewitt v. Railroad, 134 Mo. 632; Moore v. Railroad, 126 Mo. 276; Pope v. Railroad, 242 Mo. 232.

      Edw. D. Hays and David, B. Hays for respondent.
    (1) Appellant undertakes to shift responsibility on the theory of mutual fault, along with the suggestion that the law will not attempt to divide or apportion the fault. But it was within the province of the jury to determine the question of contributory negligence from the evidence offered; and the burden of establishing such contributory negligence was properly rested on the defendant asserting it. Prewitt v. Railroad, 134 Mo. 615; Thompson v. Railroad, 243 Mo. 336. (2) Regardless of the facts in the case the defense of contributory negligence is not open to the defendant. In the answer to the second count of plaintiff’s petition, being the count on which plaintiff recovered, defendant did not admit negligence and seek to excuse it. The answer was an outright denial of any negligence whatever on the part of defendant. Any plea of contributory negligence must be a plea of confession and avoidance. Allen v. Transit Co., 183 Mo. 411; Ramp v. Met. St. Ry., 144 Mo. App. 1. (3) Violation of such ordinance is negligence per se. Jackson v. Eailroad, 157 Mo. 621; Prewitt v. Eailroad, 134 Mo. 615; Hutchinson v. Eailroad, 161 Mo. 246; Sluder v. Transit Co., 189 Mo. 107; Stotler v. Eailroad, 200 Mo. 107; Sec. 9233, E. S. 1909. A railroad inviting the use of its track for pedestrianism must use care to correspond with the circumstances. Murphy v. Eailroad, 226 Mo. 56; Pearons v. Eailroad, 180 Mo..208; Schaaf v. St. L. B. & B. Co., 151 Mo. App. 35; Thompson v. Eailroad, 243 Mo. 336.
   BLAIE, C.

Plaintiff recovered judgment for $3000 as damages for the death of her husband, George Hunt, and defendant appealed. The petition contains two counts — one invoking the humanitarian doctrine and the other alleging that Hunt’s death was due to defendant’s negligence in violating an ordinance of the city of Cape Girardeau restricting the speed of trains to five miles per hour.

The answer contained, among other things, a plea of contributory negligence.

At the close of plaintiff’s evidence and again at the close of all the evidence in the case defendant requested the trial court to direct the jury to find for it on both counts and excepted to the refusal to do so. On the first count the jury expressly found for defendant and thus denied plaintiff’s right to recover on the humanitarian doctrine. The verdict was for plaintiff on the second count, and it is with that count alone we are now concerned. It is contended the evidence pertinent to the issues under the second count is not sufficient to support the verdict rendered thereon.

The relevant facts are as follows: Defendant operates a railroad passing through Cape Girardeau from north to south and entering the city at a point about 130 feet north of Sloan Creek in that city, and an ordinance of the city was in force restricting the speed of trains to five miles per hour within the city limits. On the night he was killed, ITnnt had been drinking’ and about midnight started home accompanied by two acquaintances. The three proceeded north across the railroad bridg’e over Sloan Creek and thence along the track a few feet to a point where a cinder path led westwardly from the track, and there, about twenty or thirty minutes after midnight, Hunt’s companions left the railroad and went to a brothel where they spent the remainder of the night. When these men left him Hunt ‘‘started like he was going on up the track home ’ ’ and they supposed he did so but gave him no further attention. One of them testified that just before they left him Hunt was “staggering to some extent” and was somewhat under the influence of liquor. About an hour and ten minutes thereafter one of defendant’s trains struck and killed Hunt. The train ran 24Q to 250 feet farther and stopped. Hunt’s body was found very near the spot where his two companions left him but on the west side of the. track, a few feet north of a switchstand, his head lying very near the north end of the trestle which forms the north approach to defendant’s bridge over Sloan Creek. A bundle of clothing, probably a suit of overalls in which Hunt worked, lay five or six feet north of the body and between the rails. There was a little blood on the west rail and there was a pool of blood west of the track at the point where Hunt’s head rested after he was struck. The upper front quarter of the right side of the man’s head was stricken or crushed off. There were no other wounds of any consequence on the body. ■ There was no external evidence of previous violence. So far as plaintiff’s evidence is concerned there was nothing to show the speed at which the train was running when it struck Hunt unless it can be said to be inferable from the distance the train ran after striking him and the testimony that such a train running ten miles an hour could be stopped in about 150 or 300 feet. There was, however, no evidence for plaintiff tending to show whether the brakes were applied before, at the time or after the engine struck Hunt.

For defendant the engineer who had charge of the train which killed Hunt testified that the track north of Sloan Creek was straight for about 800 feet; that about 1:38 a. m. he rounded the curve and came out upon this tangent at the rate of forty miles per hour; that when his engine reached a point about 700 feet from the north end of the bridge he saw what he suspected to be a man lying with his head on or near the west rail and near the north end of the bridge and immediately made every effort, consistent with the safety of his train, to stop, but was unable to do so, though he reduced the speed of the train so that it was running about fifteen or eighteen miles per hour when Hunt was struck; that Hunt was lying with his head on a bundle of clothing on or near the west rail, his head partly over the rail; that his face was upward and his body and feet extended westward and away from the track; that Hunt did not move at all but lay supine until the step attached to the pilot, and about four and one-half or five inches above the rail, struck him ; that it was this step which inflicted the wound above described, and an examination thereafter disclosed that it was bent and had blood and hair upon it; that the force of the blow turned the body somewhat and turned it partially around.

The violation of a valid and applicable city ordinance restricting the speed of trains is negligence per se, and substantial evidence of such violation plus like evidence of a causal connection between such negligence and an injury is sufficient to sustain a verdict against the violator, all issues being properly submitted, unless contributory negligence appears as a matter of law.

In this case the position of the body after Hunt was struck, its nearness to the rail, the nature of the •wound which caused his death and the absence of other wounds save such scratches and bruises as were necessarily incident to his being hurled upon the cinders beside the track, demonstrate that Hunt must, when struck, have been lying with his head on or near the west rail of defendant’s track and must have been struck in some such manner as the engineer testified he was. The plaintiff’s evidence shows that an examination of Hunt’s head disclosed that the “skull was gone down on the forehead just above the eye and the edge of the wound was just -about the middle of the forehead, extending upward and backward, including the forward fourth of the right side;” to that extent “the skull was missing; it was cut off on the right side down to the eye-brow just about in the center, about one-fourth of the'skull above the ear; not back of the ear to any extent; . . . only a portion of the brain was there.” It is inconceivable that a car or engine wheel could have thus crushed or cut a corner out of a man’s skull, and it is impossible that Hunt could have been sitting or standing when he received the wound described without receiving others on his trunk and limbs, unless he stood beside the track and held his head out over it, an inference which would destroy plaintiff’s case at once. There is no escape from the conclusion that Hunt was lying with his head against or upon the rail. There is evidence on plaintiff’s part that he (Hunt) was in good health and there is no intimation that he was subject to epilepsy or any other like ailment. Defendant offered some evidence that Hunt was dead before the engine struck him, but this could not aid plaintiff. The testimony by which defendant attempted to show that Hunt and one Fields were on bad terms was not sufficient to warrant an inference that Hunt had met with violence and had been placed on or near the track, particularly ■ in view of the absence of any external evidences of violence save those naturally incident to the blow delivered by defendant’s engine. If Hunt was awake and lying on or beside tbe track there could be, of course, no recovery. The only theory there is really substantial evidence to support is that Hunt was asleep on or near the west rail of the track. Whether he was drunk or sober is, in that event, of no consequence. [Murphy v. Railroad, 228 Mo. l. c. 82.] It is settled law that “lying down upon a railroad track is obviously the grossest negligence, which nothing can well excuse” (2 Shearman & Redfield, Negl. [6 Ed.], sec. 480) and while the humanitarian doctrine applies to one who has thus exposed himself to injury, yet the jury in the case found against plaintiff on that theory, and it cannot be further considered. One who lies down and goes to sleep upon the track of a railway over which trains are likely to pass cannot possibly be said to do so in reliance upon the company’s obligation to observe an ordinance limiting the speed of trains, and the cases cited in which persons were injured while lawfully relying upon such observance are not applicable. The negligence of the company in running its train in violation of the ordinance clearly would have resulted in no injury to Hunt except for his own contributory negligence in placing himself, in the night, upon the track. Whatever duty defendant owed persons walking upon the track its violation of the speed ordinance was but simple negligence in tbe circumstances of this case, liability for which is subject to be defeated by the contributory negligence of the injured person.

The closing paragraphs in the opinion in Trigg v. Water, Light & Transit Company, 215 Mo. l. c. 544, lay down the rule applicable here. In that ease no speed, ordinance was violated but it was contended the rate of speed was negligent under the common law. This difference does not affect the applicability to this ease of the rule approved in that. A valid ordinance restricting the speeds of trains simply makes a speed violative of it negligent as a matter of law; whereas, in the absence of such an ordinance, it is usually for the jury to say whether the rate was a negligent one, all the circumstances being considered. After the jury find, in the absence of such an ordinance, that a train was moving at a speed which in the circumstances was negligent, the effect of the negligent speed, so far as the question here involved is concerned, is exactly the same as if a speed ordinance had been violated.

The case last cited and that of Sullivan v. Railroad, 117 Mo. l. c. 224, and cases cited, disclose that under the law this judgment must be reversed.

Brown, G., concurs.

PER CURIAM.

This cause coming into Banc on a dissent, the foregoing opinion of Blair, 0., is adopted as the opinion of the court.

All the judges concur, except Lamm, G. J., who dissents in separate opinion in which W alicer, J., joins.

DISSENTING OPINION.

LAMM, C. J.

Plaintiff sued in two counts for the negligent death of her husband.

The first is bottomed on the theory that (because of the customary use of the place by footmen — -a bridge or trestle in Cape Girardeau where the defendant maintained a planked footway) it was the dnty of defendant to keep an outlook there, but that it neglected its duty; that decedent being exposed to peril there, defendant negligently struck and killed him by running a locomotive against him; that defendant’s agents and servants in charge of its locomotive saw decedent in peril, or by the exercise of ordinary care might have seen him in peril, in time to have stopped the locomotive before striking him, but, negligently failing to keep an outlook and failing to stop-, struck decedent and killed him.

The train was running very fast, and the testimony tended to show that defendant did keep an outlook and did see decedent, and that though decedent was seen by the engineer lying on the rail the rise of seven hundred feet away, yet the locomotive, at its going rate of speed, could not be stopped in that distance. There was testimony that defendant did what it could to stop, and some from which a contrary conclusion was inferable, but the jury found for defendant on the first count and plaintiff took no exception and no appeal. Therefore trial instructions and theories applicable only to that count fall out of the case.

The second count declared on a violation of a city ordinance forbidding a train speed in excess of five miles an hour within the limits of the city of Cape Girardeau, and ascribes the death of decedent to a negligent violation of that ordinance.

The jury found for plaintiff on the second count and assessed her damages at $3000, but our learned Commissioner reaches the conclusion that because the jury found for defendant on the first count such verdict necessarily precludes a recovery on the second, accordingly the judgment is reversed outright without remanding the cause. I cannot agree that such conclusion is sound and the object of this dissent is to state, in part, my reasons for that position.

I do not say there is no error in propositions of law put to the jury on plaintiff’s behalf or in those refused for defendant. I say nothing at all on that score. This for the reason that our learned Commissioner’s opinion does not turn on any such question and this includes the reasonableness of the ordinance (a. much agitated point in appellant’s brief). It lays such question out of view and this dissent does as it does. In other words, if our Commissioner has fallen into error in reaching his conclusion, then other questions remain to be considered before affirmance. If not, then those other questions are not decisive, and to put them aside and reserve the propositions is well enough.

As premises to reason from, the following may he assumed:

(1) That the speed ordinance was proved as pleaded.

(2) That its flagrant violation was proved at the time and by the locomotive in question.

(3) That there was evidence conclusively showing that if the ordinance had not been violated the accident would not have happened; for on this record decedent was seen by the engineer in a position of peril and (unconscious of it) more than seven hundred feet away, and if the ordinance had been obeyed the locomotive, under existing circumstances of train equipment, weather and grade, could have been stopped in fifty feet. At its actual speed rate it could not be stopped (so the jury found in their verdict on the first count) and warning was unavailing because decedent was unconscious through sleep, sickness or injury by foul means.

(4) That the locus in quo was in the corporate limits of Cape Girardeau sufficiently appears.

(5) That the locomotive killed decedent sufficiently appears; for that, though there was testimony directed to the theory that decedent was dead when struck by the locomotive, there was also evidence contra and the jury decided against defendant on the issue.

We have, then, a case where the death of a man directly results from the violation of a speed ordinance under circumstances where a duty to not Mil him, if by ordinary care his death could be avoided, was imperative.

In determining liability or nonliability in the case put, we may put to one side some other issues, viz.:

First, the negligence or non-negligence of decedent in putting himself in peril. This issue falls out of the case on appeal because, on testimony both ways his non-negligence was found by the jury on an issue put to them. Not only so, but admitting decedent’s neg’lig'ence in putting himself in peril an hour before his death and staying in peril, then there is no principle of law allowing him to be killed, when his peril is discovered and he is unconscious of it, as here, if by ordinary care his death could have been avoided. This man obviously could not help himself and did not intend to try. No one who saw him could have two opinions on that. It was as plain as a pike staff. Alarms were idle. Stopping was the only thing that would save the unconscious man. In such case decedent was a brother of defendant and defendant was that brother’s keeper up to the full measure of ordinary care. I will recur to “ordinary care” further on, and the scope of it as it is given to me to see it.

Second, we may put to one side the duty to stop at the rate defendant was ru/nning its locomotive; for it could not stop and the jury so decided when it found for defendant on the first count. If, then, ordinary care began only with discovery of peril (which I deny) we confront inability to stop and the case is at an end. But does that view broadly meet the demands of justice or put an end to the case on the second count bottomed on negligent speed in violating the ordinance? So held our Commissioner and at that point we part company.

Because: In the first place, to so hold results in the anomaly that the more the law is violated .(i. e., the greater the speed and consequent inability to stop) the greater the immunity from liability for destroying life — an unthinkable proposition. It would be to encourage lawless speed, and the more lawless the better — a theory against all morals and ethics. It would be for the law to say: Break the law, break it flagrantly; for, behold, the more lawless the speed, the more lawful the killing caused thereby- — another unthinkable proposition.

If we ever announce that doctrine we strike the life out of every speed ordinance in Missouri. To illustrate, the object of those ordinances is not only to save life and limb, but to make it possible to save life and limb. But we say, run so fast in towns that you cannot stop where life and limb are likely to be or are in peril, and yon are acquit of liability. How long would one of those ordinances be effective in creating a civil liability for negligence in the face of such ruling? A pestiferous syllogism it would be to announce: Ability to stop creates liability. Fast running creates inability to stop. Inability to stop creates immunity. Hence, break the speed ordinance and be acquit.

Nor need we bother with the question of the duty to look out for decedent. The engineer saw him, that was one fact on which liability hinges. Closer home, he saw him in time to stop if he had been obeying the law. That was a remaining and necessary fact to fasten liability on defendant. Shall it be allowed to set up its servant’s lawless act that it may escape liability and thereby profit by its own wrong? Thereto the maxims are abundant and cover every angle of the matter ; for, example: A man should not be benefited by his own wrongdoing. A right does not arise from a wrong. The law hateth wrong. No one can improve his condition by his own wrong. No one can take advantage of his own wrong.

Any process of reasoning leading up to that conclusion must be unsound, because the conclusion is absurd. The right doctrine is: Grood reasoning leads to correct results; if, then, the results be incorrect the reasoning is bound to be unsound; for are not the general principles of the law the very perfection of reason?

In the second place, there is no complaint here of improper joinder of causes of action, or that the petition does not state a good canse of action in each count. If, now, plaintiff had sued in only one count and that one for a breach of the ordinance and had shown, as here, a causal connection between the death and a breach, she would have made a case, barring such contributory negligence by decedent as would be a joint proximate cause of his own death. How comes it, then, that with the first count eliminated by the verdict of the jury her second count by that token alone also falls? Does her case not stand precisely in that event as if she had not sued on her first count at all? I think so and can allow no such potency to the verdict of acquittal on the first count as ascribed to it by the principal opinion, viz., that of striking down both counts and thereby killing two birds with one stone.

In the third place, defendant assigned fifteen reasons for reversing the judgment. Observe what they were. The first four attacked the constitutionality of the new damage act; the fifth complains of the refusal of an instruction whereby the reasonableness of the speed ordinance was put to the jury; the sixth is by way of argument to the effect that decedent went to sleep on the track without relying on a lawful train speed; the seventh argues the ordinance was habitually violated and decedent knew that fact; the eighth puts the matter from the standpoint of a mutual fault; the ninth argues that the doctrine of the Trigg case, 215 Mo. 521, and Ayers case, 190 Mo. 228 (both distinguishable from this), applies; the tenth argues decedent wilfully exposed himself to danger; the eleventh argues that drunkenness did not excuse him; the twelfth complains of an instruction on the burden of proving the issue of contributory negligence; the thirteenth is like unto the last above; the fourteenth complains of another instruction; the fifteenth complains of error in admitting evidence.

To my mind it is of stiff significance that in none of those grounds for reversal did veteran counsel make the point now made by our learned Commissioner. What they could not see with eyes brightened and freshened by the tears (I speak, of course, in figure only) of defeat, should we see? Why be astute to that end? Or, if we think we see it, are we not likely to see only a will o ’ the wisp ? Under our rules they were not allowed to argue a point not made in their briefs. Shall we argue it for them?

In this connection I stress the proposition that the contributory negligence of decedent as a causal factor in his death was squarely put to the jury and the fact was found against defendant. In that view of it, shall we say, on conflicting proof, as here, that decedent as a matter of law was guilty of such contributory negligence as destroys liability? One of defendant’s theories was that it did not kill the man at all. That he was killed by some one else. That issue was put to the jury and was found for plaintiff. He may have been wounded by an enemy (and the proof made that not a wild speculation) but the locomotive on this record must be taken as the thing that killed him.

Recurring now to ordinary care, all must admit' defendant owed it to decedent. It owed him, then, care according to circumstances. It owed him such care as an ordinarily reasonable, prudent man would exercise under the same or similar circumstances. As suggested heretofore the question is: When did ordinary care begin to operate as a factor? The principal opinion, it seems to me, acquits defendant if it used ordinary care in stopping after the peril was discovered. Is not that too close a view? Does.not reason push it back of that? It began sooner. Ordinary care began with the rate of speed and required obedience to the law so that ordinary care in stopping would have a chance to fill its due office. If, now, disobedience to the law make it impossible to stop, though ordinary care in the mere matter of stopping was used, shall defendant be absolved for carelessly putting it out of its power to stop ? That would be, as heretofore said, an invaluable excuse for lawbreaking. Ñay more, and most of all, it would be a suggestion to break the law and thereby escape liability and avoid duty. I think it would make of the law (not a rule of action, but) what some wise old Latin said of the nightingale, viz.: Vox, et praeterea nihil, which a scholar tells me means, if liberally Elnglished, a voice and nothing but a voice. In my opinion ordinary care in this case involved the concept of using ordinary care in speed so that ordinary care in stopping would result in attaining the benevolent purposes of the ordinance. These two phases of ordinary care belong in the case. They are, I submit, inseparable in logic and inseparable in common sense. They sit like “two kings of Brentford on one throne.-”

Wherefore I dissent, Walker, J., joining me in so doing.


source: Caselaw Access Project

author: WOODSON, P. J.

license: Public Domain

text:
    GEORGE W. WELLMAN, Trustee in Bankruptcy of Estate of CHRIS VON DER AHE, Appellant, v. KAISER INVESTMENT COMPANY et al.
    Division One,
    December 2, 1914.
    1. FRAUDULENT CONVEYANCE: Purpose: Full Value: Wife Preferred. Even, though the grantor was hopelessly insolvent at the time he conveyed the property to his wife, and the evidence tends strongly to prove the transfer was made to defraud his other' creditors, yet if the grantor was justly indebted to the wife at the time, and the sum of that indebtedness, together with the existing mortgages against the property which she assumed, aggregated an amount equal to or in excess of its then value, the conveyance to her will not be set aside as fraudulent as to his other creditors.
    2. -: Valid Indebtedness: Breach of Promise Notes: Future. Marriage. The fact that a transfer of his property by the husband to his wife was made in consideration in part of the surrender to him of notes given by him to her in settlement of her suit for breach of his promise to marry her brought by her against- him prior to their marriage, does not render the conveyance fraudulent, nor did the subsequent marriage invalidate such indebtedness.
    3. -: -: -: -: Presumption of Gift: Lending Notes to Be Used as Collateral Security. In view of the statute declaring that all gifts of money or property by -the wife to her husband not in writing shall be void, a delivery to him by her of notes of a third party given her by him in settlement of her suit for breach of his promise to marry her brought before their marriage, would ordinarily raise the presumption of payment, but where it is clear that her intention was to lend the notes to him in order that he might use them as collateral security for the payment of money to be borrowed by him, no presumption of payment will be indulged.
    Appeal from St. Louis City Circuit Court. — Eon. Moses N. Sale, Judge.
    Affirmed.

      Kelley & Starke for respondents.
    (1) A failing or insolvent debtor lias the right to prefer one creditor over another, even though the effect of the preference is to hinder and delay other creditors, and even though the creditor has knowledge that the debtor intended to hinder, delay or defraud his creditors. Growney v. Lowe, 234 Mo. 696; Stahlhuth v. Nagle, 229 Mo. 582; Gust v. Hoppe, 201 Mo. 300; Wall v. Beedy, 161 Mo. 637; Bank v. Pry, 216 Mo. 34; Alberger v. White, 117 Mo. 363; Sexton v. Anderson, 95- Mo. 379; Albert v. Besel, 88 Mo. 150; Shelley v. Boothe, 73 Mo. 74. (a) A debt due from a husband to his wife stands on as good footing as a debt due to any other person and she may be given a preference over other creditors. R. S. 1909, sec. 8304; Cole v. Cole, 231 Mo. 255; Rice-Stix & Co. v. Sally, 176 Mo. 107; Sehufeldt v. Smith, 131 Mo. 288; De Berry v. Wheeler, 128 Mo. 89; Seay v. Hesse, 123 Mo. 462; Hart v. Leete, 104 Mo. 315; Riley v. Vaughan, 116 Mo. 176; Woolen Mills v. Wilson, 87 Mo. App. 145. (b) There is a very material distinction to be observed between one who purchases for a fresh consideration and one who purchases merely to secure a pre-existing debt. The position of a creditor is in this respect better than that of a purchaser. Gust v. Hoppe, 201 Mo. 300; Wall v. Beedy, 161 Mo. 637; Alberger v. White, 117 Mo. 365; Sexton v. Anderson, 95 Mo. 373; Morgan v. Wood, 38 Mo. App. 264; Deering & Co. v. Collins & Son, 38 Mo. App. 79. (2) Chris Von der Ahe was entitled to a homestead in the equity in the real estate in question over and above the $11,000: deed of trust thereon on and prior to the 3rd day of September, 1902, which was the date on which he conveyed his equity in said real estate to his wife, Anna K. Von der Ahe, in payment of the $4800 he owed her. Speery v. Cook, 247 Mo. 132; Sharp v. Stewart, 185 Mo. 529; Finnegan v. Prindeville, 83 Mo. 517; Zollinger v. Dunnaway, 105 Mo. App. 36; Tennent v. Pruitt, 94 Mo. 145. (3) The deeds from Chris and Anna K. Von der Ahe to John S. King and from King to Anna K. Von der Ahe, dated September 3, 1902, by which Chris Von der Ahe’s title to his equity in the real estate in question was conveyed to said Anna K. Von der Ahe in payment of her legal debt against him, amounting to $4800, were valid conveyances made to. prefer her as a creditor, (a) The fact that said deeds recited a consideration of $1000 makes no difference, because it is competent to show, and was shown by the uncontradicted parol testimony that the real consideration of said deeds was a prior legal indebtedness from Chris Von der Ahe to Anna K. Von der Ahe amounting to $4800. Deeds supported by such consideration are not voluntary conveyances. Clark v. Lewis, 215 Mo. 190. (4) The relationship of the parties and the insolvency of the grantor are not sufficient to establish fraud. Robinson v. Dryden, 118 Mo. 539. A finding of fraud can never be based .on mere presumption. When an act may be as fairly attributed to good motives as well as to bad, a proper motive is presumed to exist. Lumber Co. v. Crommer, 202 Mo. 521; Kilpatrick v. Wiley, 197 Mo. 159; Bank v. Worthington, 145 Mo. 100; Webb v. Derby, 94 Mo. 629; Robinson v. Dryden, 118 Mo. 534.

      D. J. O’Keefe for appellant.
    (1) Insolvency of debtor at the time of transfer of property sufficiently appears from the evidence. 14 Am. & Eng. Ency. Law, 308; Walsh v. Ketchem, 84 Mo. 427; Ploffman v. Nolte, 127 Mo. 120. (2) No consideration passed from defendant Anna K. Yon der Abe to her husband, the bankrupt, at the time of the transfer of the real estate, nor was there any existing debt in favor of defendant Anna K. Yon der Ahe established by the evidence which would validate the transfer of real estate. Sloan v. Tory, 78 Mo. 623; McClain v. Abshire, 63 Mo. App. 333; Hoffman v. Nolte, 127 Mo. 120; Patton v. Bragg, 113 Mo. 595; Martin v. Estes, 132 Mo. 402; Shelly v^|Booth, 73 Mo. 74; Prank v. Curtis, 58 Mo. App. 349; McKénny v. Wade, 43 Mo. App. 152; Forwell v. Meyer, 67 Mo. App. 566; Mayberg v. Jacobs, 40 Mo. App. 128; Simmons v. 0’’Neal, 60 Mo. App. 530. (3) Discrepancy in consideration mentioned in deed is a badge of fraud. Sec. 2881, R. S. 1909; Benne v. Schnecko, 100 Mo. 256; Bump on Fraudulent Conveyances (3 Ed.), pp. 34, 42, 51, 306. (4) Sale under Winkelmeyer deed of trust was but a scheme to relieve real estate in question from the outstanding inchoate right of dower in bankrupt’s first wife and of the judgment lien upon the property in favor of Pendleton et al. and Broadhead to use. (5) Property in question stood in the same position in reference to bankrupt’s creditors after sale under deed of trust as before said sale, no person holding record title to said property after said sale had paid anything of value, there being but a substitution of the deeds of trust placed thereon by Helen Caldwell for the deed of trust thereon held by Winkelmeyer. (6) The bankrupt Von der Ahe never had a homestead right in the real estate as ag’ainst debts of Pendleton et al., Broadhead to use and the Anheuser-Busch Brewing Association, all of which were contracted while bankrupt was a single and unmarried man and at a time when bankrupt had abandoned any prior homestead right he may have had in this real estate. The real estate in question was over three times in size that permitted to be held under the law as a homestead. Secs. 6704 and 6711, R. S. 1909; Smith, v. Bun, 75 Mo. 563; Kaes v. Gross, 92 Mo. 655; Snodgrass v. Capple, 131 Mo. App. 351.
   WOODSON, P. J.

The plaintiff, as trustee in bankruptcy, of the estate of Chris Von der Ahe, instituted this suit, creditor’s bill, in the circuit court of the city of St. Louis, to set aside and for naught hold certain deeds of conveyance mentioned in the pleadings and evidence, conveying the real estate in controversy, situate in the city of St. Louis, on the ground of fraud, and to recover same from the defendants, the present title to which now rests in the defendant Kaiser Investment Company.

The substance of the pleadings are briefly and fairly stated by counsel for appellant in the following language:

“Plaintiff’s amended petition, upon which trial was had, states that in the year 1898 and for some time prior Chris Von der Ahe was the owner of certain real estate in the city of St. Louis, Missouri, being a lot of ground in city block 2386, beginning at a point on the north line of St. Louis avenue 105 feet and 10 inches west of the west line of Grand avenue and running westwardly along the north line of St. Louis avenue 145 feet more or less to the west line of lot nine of said block; thence northwardly and parallel with the west line of Grand avenne 115 feet to an alley fifteen feet wide; thence eastwardly and parallel with St. Louis avenue 14-5 feet to a point; thence southwardly and parallel with Grand avenue 115 feet to the Berth line of St. Louis avenue, the point of beginning.
“That on the 8th day of December, 1894, Chris Von> der Ahe and Emma Yon der Ahe, his wife, executed! a deed of trust on this real estate in favor of David J. Hayden, trustee, to secure the payment of certain promissory notes of the sum of $11,000.
“It is further charged in the petition that bankrupt Chris Yon der Ahe, prior to 1898, became indebted to the extent of $21,000 to creditors represented by the trustee in this action, a portion of which were proven against bankrupt estate to the extent of over $12,000 in all. A large portion of the debts proven were contracted prior to the year 1898.
“It further appears from the plaintiff’s amended petition that the bankrupt, together with the defendant Anna K. Yon der Ahe, who was then and is now the wife of said bankrupt, on the 29th day of January, 1900, conveyed all of the aforementioned real estate to the defendant Max Kaiser for a pretended consideration of $1000;'that on the same day defendant Max Kaiser conveyed the said real estate to defendant Anna K. Yon der Ahe for a pretended consideration of $1000, both of which deeds were recorded in the office of the recorder of deeds in the city of St. Louis, Missouri, on the 22d day of May, 1902; and that on the 3rd day of September, 1902, bankrupt Chris Yon der Ahe and his wife, the defendant Anna K. Von der Ahe, conveyed the same real estate to John S. King for a pretended consideration of the sum of $5, and in confirmation and in recognition of the deeds from bankrupt Yon der Ahe and his wife, defendant Anna K. Von der Ahe, to defendant Max Kaiser, and from Max Kaiser to the defendant Anna K. Yon der Ahe, for a pretended consideration of the sum of $5, and in confirmation and in recognition of the aforementioned deeds executed on the 29th day of January, 1900, from bankrupt Yon der Ahe and his wife, defendant Anna K. Yon der Ahe, to defendant Max Kaiser, and from the defendant Max Kaiser to the defendant Anna K. Yon der Ahe, which later deeds were recorded on the 3rd day of September, 1902.
“It is further charged in plaintiff’s amended petition that on the 10th day of December, 1903, the said real estate was sold by the trustee under the deed of trust executed by the bankrupt and his first wife, Emma Yon der Ahe, for a pretended consideration of $10,000, to Christiana Winkelmeyer, the owner of the deed of trust, who in turn, on the same day, conveyed said real estate to Helen Caldwell, who is the defendant Helen Caldwell How, for a pretended consideration of $11,500, who in turn, on the 14th day of December, 1903, executed three first deeds of trust on this real estate to August Grehner, trustee for John A. Tomhagen, to secure the payment of principal notes aggregating $10,500, and the interest to accrue thereon; that on the 15th day of December, 1903, said defendant Helen Caldwell How executed a second deed of trust on all of this real estate to August Grehner, trustee for John A. Tomhagen, to secure payment of principal notes aggregating $2025; that on the 4th day of January, 1904, the defendant Helen Caldwell How transferred the remaining equity in this real estate to the defendant Kaiser Investment Company; that all of these conveyances were duly recorded in the office of the recorder of deeds in the city of St. Louis, Missouri.
“It is further charged in the petition that James M. Franciscas, Charles C. Kunz and Robert A. Quackenboss, at the instance and request of the bankrupt Von der Ahe and his wife, defendant Anna K. Yon der Ahe, and defendant Max Kaiser, organized the defendant Kaiser Investment Company; a corporation, under the laws of the State of Missouri, for the purpose of receiving and holding the legal title to this real estate, and subsequently transferred to the bankrupt Von der Ahe'and his wife defendant Anna K. Von der Ahe, and defendant Max Kaiser, all of the shares of stock of said corporation; that the purpose and effect of all of these conveyances other than the first deed of trust executed by the bankrupt Von der Ahe and former wife Emma Von der Ahe, was to hinder, delay and defraud the creditors of the bankrupt Chris Von der Ahe, and prayed for a decree setting aside all of said conveyances and to declare the real estate to be the property of bankrupt Von der Ahe, and ordered sold for the payment of the indebtedness of said bankrupt, subject to certain deeds of trust executed by Helen Caldwell, provided the court found that they were valid and subsisting liens on said real estate and that defendants be required to account for the income from said real estate and for such other and further relief as may under the premises to the court seem meet, just and proper.
“Defendant Anna K. Von der Ahe, answering plaintiff’s amended petition, filed a general denial, with admissions that bankrupt Von der Ahe was in the year 1898 and for some time prior thereto the owner of the real estate mentioned in plaintiff’s amended petition, the execution of the deed of trust by bankrupt Von der Ahe and his wife, Emma Von der Ahe, on the 8th day of December, 1894, and alleges that the conveyances of bankrupt and his wife, defendant Anna. K. Von der Ahe, to Max Kaiser, and from Max Kaiser to defendant Anna K. Von der Ahe, were never delivered by bankrupt and defendants Anna K. Von der Ahe and Max Kaiser, and further alleges that both of said conveyances were at all times null and void; admits the execution and delivery of deeds from bankrupt Von der Ahe and his wife, defendant Anna K. Yon der Ahe, to John S. King and from John S. King to defendant Anna K. Yon der Ahe, bnt denies that these deeds were fraudulent; admits that the real estate was sold on the 10th day of December, 1903, by the trustee under the deed of trust executed by bankrupt and Emina Yon der Ahe, his first wife, to Christiana Winkelmeyer, but denies that the sale and purchase under deed of trust was fraudulent; admits the conveyance of said real estate from Christiana Winkelmeyer to Helen Caldwell, but denies said conveyance was fraudulent; admits that on the 14th day of December, 1903, defendant Helen Caldwell executed the three first deeds of trust to August- Gehner, trustee, to secure the payment of her promissory notes to John A. Tomhagen, aggregating $10,500, and the second deed of trust to secure the payment of her promissory note for $2025', to same party, and that the notes secured by said second deed of trust have been paid, and avers that the same were paid by defendant Anna K. Yon der Ahe.
“Denies that the conveyance from defendant Helen Caldwell How to defendant Kaiser Investment Company was for a pretended consideration and fraud of creditors of bankrupt Chris Yon der Ahe; that in fact the conveyance executed by Helen Caldwell How to defendant Kaiser Investment Company was null and void because Kaiser Investment Company did not exist and was not a body corporate and was incapable of holding and owning the title to said real estate at the time of the conveyance from Helen Caldwell How to defendant Kaiser Investment Company. That the title to said real estate is in'fact in defendant Helen Caldwell How, who holds same in trust for defendant Anna K. Yon der Ahe, and that defendant Anna K. Yon der Ahe has received the rents and profits of all of real estate for her sole use and benefit and paid out certain amounts for interest, taxes and upon the promissory notes secured by the second deed of trust executed by Helen Caldwell How. That all of real estate was at all times prior to conveyances and at the time of the conveyances the homestead of bankrupt.
“The answer of defendant Kaiser Investment Company to plaintiff’s amended petition was a general denial, with admission regarding ownership of real estate by bankrupt at and prior to 1898, the execution of deed of trust by bankrupt and his former wife on December 8, 1894, also deeds from bankrupt and his wife, the defendant Anna K. Von der Ahe, to defendant Max Kaiser, and the deed .from Max Kaiser to Anna K. Von der Ahe, and charges that said last two conveyances were null and void. Admits the execution of conveyances from bankrupt and his wife, defendant Anna K. Von der Ahe, to John S. King, and from John S. King to defendant Anna K. Von der Ahe, and asserts they were bona-fide conveyances and for a valuable consideration; admits the sale of real estate under deed of trust executed by bankrupt and his former wife, Emma Von der Ahe, to Christiana Winkelmeyer, and the conveyance from said Christiana Winkelmeyer to defendant Helen Caldwell How, and the execution of the four deeds of trust upon said real estate by defendant Helen Caldwell How to August Gehner, trustee, to secure the promissory notes of John A. Tomhagen, and charges all were bona-fide conveyances and for a valuable consideration, and further charges that the promissory notes, aggregating $2025, secured by the second deed of trust on said real estate, have been fully paid and discharged by defendant Kaiser Investment Company. Admits that defendant Helen Caldwell Plow, on the 15th day of December, 1903, conveyed by warranty deed all of the real estate in question to defendant Kaiser Investment Company, subject to the four deeds of trust placed thereon by said defendant, and charges that ever since that date defendant Kaiser Investment Company has held and now holds the title to said real estate in good faith and for its sole use and benefit, and ever since the 15th day of December, 1903, has received the rents and profits of said real estate in good faith and for its sole nse and benefit, and that since acquiring title to said real estate it has paid out and expended certain moneys in payment of taxes, interest and upon the said second deed of trust; also states that at the time of conveyances by bankrupt the real estate was the homestead of said bankrupt.
“The answer of defendant Max Kaiser to plaintiff’s amended petition was a general denial, and the adoption of the separate answer of the defendant Kaiser Investment Co.
‘ ‘ The answer of defendant Helen Caldwell How to plaintiff's amended petition was a general denial and the adoption of the answer of defendant Anna K. Von der Ahe. ’ ’

The trial before the chancellor, Hon. Moses N. Sale, resulted in a finding of the facts and a decree in favor of the defendants from which the plaintiff in due time and in proper form appealed the cause to this court.

appellant’s evidence.

In brief the evidence of the appellant tended to prove the following facts:

That about the year 1875 Chris Von der Ahe acquired the real estate in question, and erected the buildings thereon some time prior to the year 1894; that on the 8th day of December, 1894, Chris Von der Ahe and his then wife, Emma, placed a deed of trust on said real estate to secure $11,000, money borrowed from one Winkelmeyer.

That between the years 1894 and 1902, Chris Von der Ahe contracted the debts previously mentioned, aggregating twenty odd thousand dollars.

That on or about August 17,1899, Henry C. Becker instituted a suit in the circuit court of the city of St. Louis against Chris Von der Ahe and his wife, Anna K., upon promissory notes aggregating approximately $15,000. That shortly after the institution of this suit Chris Von der Ahe and his wife Anna K., by a general warranty deed dated January 29, 1900, conveyed the property in' question to Max Kaiser, a brother of said Anna K., and that on the same date said Max by a general warranty deed conveyed the same land to his sister, Anna K. Von der Ahe. .Both deeds were duly recorded May 22, 1902. That both of said deeds were without consideration. (This, however, seems to me to be immaterial, because all parties concede that both were void because never delivered.)

That Chris Von der Ahe and Anna K., his wife, on September 3,1902, by deed duly executed conveyed said real estate to John S. King, and that on the same day said King by deed duly executed conveyed the same land to .Anna K. Von der Ahe, both of which were duly recorded. King testified that in so far as he knew no consideration for the deeds passed between the parties at the time of their execution.

That Winkelmeyer, the owner of the deed of trust dated December 8, 1894, executed by Chris Von der Ahe, and his wife, Emma, on said real estate, to secure a loan of $11,0.00, in the month of December,' 1903, demanded payment of the same. That up to that time Chris Von der Ahe collected the rents on said property, and from December 14, 1903, the rents were paid to the defendant, the Kaiser Investment Company. ■That at the time of the sale of the property under the Winkelmeyer deed of trust, Emma Von der Ahe, the first wife of Chris Von der Ahe, had an outstanding dower interest in said property (she having been divorced from Chris Von der Ahe on March 26, 1895) and that there were several judgment loans existing against the property.

That at the sale of the property under the Winkelmeyer deed of trust, Helen Caldwell became the purchaser, for the sum of $11,500. That Helen Caldwell borrowed the money with which she purchased the property, and executed three or more deeds of trust on the same to secure the parties from whom she borrowed the money to pay "Winkelmeyer. These deeds also included a small sum borrowed by her to pay cost and expenses of the foreclosure and sale of the Winkelmeyer deed of trust. All of these deeds were duly recorded on December 17,1903, there being only one minute of time elapsing between the recording of each.

That on January 4, 1904, said Caldwell by a general warranty deed conveyed the said real estate, subject to the said deeds of trust, to the defendant, Kaiser Investment Company.

That the arrangements made for the sale of the property under Winkelmeyer deed of trust and the ultimate transfer of the same to the Kaiser Investment Company were done on behalf of Chris Von der Ahe.

That the bankrupt contracted the original debt with the Anheuser-Busch Brewing Association on August 4, 1896, while he was a single and unmarried man and not within the class of persons entitled to claim or hold a homestead, and the evidence further tended to show that at the time of contracting this debt, also the debt of Broadhead et ah, and at the time the Pendleton judgment was rendered against him, the bankrupt did not reside upon or occupy any of the property in question as a homestead, or that he occupied none of this property as a homestead, until the spring of 1899. .

respondent's evidence.

The following facts are either admitted or practically not disputed.

It is admitted that Chris Von der Ahe duly acquired the title to the real estate described in appellant’s amended petition from the owners thereof on the 20th day of December, 1875, and that Chris Von der Alie and Anna K. Von der Abe were living upon said property at tbe time tbis case was tried in tbe circuit court. That Chris Von der Abe and Anna K. Von der Abe continued to live in one of tbe bouses on said real estate up to tbe death of said Chris Von der Abe, which occurred on tbe 5th day of June, 1913, and that said Anna K. Von der Abe now occupies and lives in said bouse.

That Chris Von der Abe and Emma Von der Abe, his first wife, were legally married in 1870. That on the 8th day of December, 1894, Chris Von der Abe and bis then wife, Emma Von der Abe, executed and delivered their promissory note for $11,000 secured by their deed of trust on said real estate. Appellant admits in bis amended petition, upon which tbis case was tried, that said deed of trust securing said note for $11,000, executed by Chris Von der Abe and Emma Von der Abe,, is and was at all times- a legal and valid lien upon said real estate.

That Chris Von der Abe and Anne K. Von der Abe were legally married on August 18, 1898. That Max Kaiser and said Anna K. Von der Abe were brother and sister.

Tbe evidence tended to prove that prior to September 3, 1902, Chris Von der Abe was legally indebted to Anna K. Von der Abe in tbe sum of about $5000.

That in tbe year 1896, said Anna K. Von der Abe, who was then Anna Kaiser, instituted suit for breach of promise against said Chris Von der Abe in tbe circuit court of tbe city of St. Louis, Missouri, and that said case was settled out of court by Chris Von der Abe agreeing to pay her $3000, but that only $800 of said $3000 was paid to her in cash, $200 to her and $600 to her attorney.

Chris Von der Abe afterwards gave Anna K. Von der Abe some old Sportsman’s Park notes for tbe $2200 balance. None of these notes, nor any part thereof, were ever paid, and Anna K. Yon der Ahe returned all of said notes to Chris Yon der Ahe. The $2200 was afterwards paid by said Chris Yon der Ahe in the manner hereinafter set forth in this statement after numerous demands made by her upon him.

That Anna K. Yon der Ahe had at different times loaned Chris Yon der Ahe about $2000, in the manner to be presently stated. Anna K. Yon der Ahe, among other things, testified that:

££Q.- Well, what did the balance of the five thousand dollar debt from Chris Yon der Ahe to you consist of? A. The other amount was a judgment I had-against Mr. Yon der Ahe for a breach of promise that Mr. William F. Woemer attended to. He was my attorney.
££Q. Do you remember what year you sued Mr. Yon der Ahe for breach of promise? A. In 1896.
££Q. You say that was settled for three thousand dollars? A. Yes, sir.
££Q. Did he ever pay you any part of that? A. He never did.
£ Q. That made up the whole five thousand dollars that he owed you? A. Yes, sir.
££Q. When you married him was there anything said to you at that time by Chris Yon der Ahe about satisfaction of this judgment or claim that you had against him for this breach of promise suit? A. No, sir.
££Q. Isn’t it a fact that when he consented to marry you that you agreed to relieve him from any liability on the claim for the breach of promise? A. No, sir.
££Q. You mean to tell the court that you retained your judgment against him for breach of promise when he consented to marry you? A. Yes, sir.
££Q. Now in reference to this breach of promise suit, did you come into this court and have a trial of the case? A. No, sir, Mr. Woerner settled it.
“Q. I thought you said you got a judgment? A. That is what Mr. Woerner told me. Mr. Woerner settled it for me. I don’t know how those thing’s are done.
“Q. Now, isn’t it a fact that he settled it by Chris agreeing to marry you? A. No, sir. Mr. Von der Ahe was married at the time, and I sued him for breach of promise when he was married. . . .
“The Court (Q.): What did you get as a settlement? A. Three thousand dollars. .
“The Court (Q.): In money? A. No, sir.
“The Court (Q.): In what? A. Well, he was supposed — he paid me $200 and he was supposed to pay the rest in six months.
“The Court (Q.): Did he pay you the $200? A. Yes, sir.
“The Court (Q.): Did he pay you any of the balance? A. No, sir, he kept me off from time to time, and when I asked him for it after while he said he would give me that property for the money he owed me.
‘ ‘ Mr. O ’Keéfe: Did you take any notes or memorandum of what he owed you*on the settlement? A. I held some notes, but I. turned them over to him again.
“Q. When did you turn them over to him? A. In about 1900.
“Q. In about 1900? A. I think so. Those were notes secured by him, and he said if he would get the money he would pay me, but the notes were never paid, and I just turned them over to him, and he deeded that property over to me.
“Q. That was shortly after you were married that you surrendered those notes to him? A. No, sir. We were married quite a while before I surrendered them to him.
“Q. You just took a notion one day to surrender these notes without any reason for it? A. No.
“Q. What was- the occasion? A. He asked me for those notes.
“Q. And you just willingly turned them over to him? A. He told me he would pay me some other way.
“Mr. Kelley (Q.): Now, Mrs. Von der Ahe, those notes that Chris gave you to hold until this three thousand dollar settlement of the breach of promise suit were paid, were never paid, were they? A. No, sir.
“Q. Yon gave them back to him? A. I did.
“Q.' What did he owe yon that five thousand for? A. Well, $1000 I sent him to Pittsburgh—
“Q. When did you loan Chris Von der Ahe this one thousand dollars? A. I gave him that on the 14th or 15th of February, 1898, when he was in Pittsburgh.
“Q. That was the time he got in jail at Pittsburgh? A. Yes, sir; and he sent Mr. Muckenfuss over to the house and askec if I could not send down any money, that he was hard up, and if I could get any I should send it to him, and I sent him one thousand dollars.
“Q. Where did you get that thousand dollars? A. Seven hundred and fifty dollars was my own money and two hundred and fifty I borrowed from my brother Max.
“Q. Is that the seven hundred and fifty that you had in the Northwestern Savings Bank? A. Yes, sir.
“Q. Mrs. Von der Ahe, what money did you have when you married Chris Von der Ahe? A. I had about a thousand dollars, what I had sent him on to Pittsburgh.
“Q. What? A. About a thousand dollars. '
“Q. You didn’t have that then when you were married? A. No, sir; but I had given it to Mr. Von der Ahe.
“Q. You made Mm a present of it? A. No, sir; I didn’t do that.
“Q. Well, you said you gave it to Mm? A. I sent it to Mm, I said.
“Q. You were no relation of Mr. Yon der Abe’s were you? A. No, sir.
“Q. You were not at that time? A. No, sir.
“Q. Was be married at that time? A. No, sir.
“Q. Wbat? A. No, sir.
“Q. You mean to tell us'that be was not married in February, 1900 — 1898? A. No, sir.
“The Court (Q.): That is, you were not married to bim. Was anybody else married to bim? A. No, sir.
“Tbe Court (Q.): Was be a single man at that time? A. Yes, sir; as much as I know.
“Mr. O’Keefe: You were not married to Mm at that time? A. No, sir.
“Q. And you were not married to Mm until August of that year? A. No, sir.
“Q. Do you recall about tbe time you made bim tbe loan? A. February 14th or 15th I gave it to Mr. Muckenfuss and be sent it to Pittsburgh.
“Q. Nov?, wbat else did tbis debt consist of? You have told of one thousand dollars. A. Another thousand is wbat I borrowed from my mother from time to time, and gave it to Chris. That went up to another thousand.
“Q. When did you loan bim tbe last of tbis second thousand dollars? A. I guess it was about in 1901.
“Tbe Court (Q.): When did you get that thousand from your mother? A. At certain times up to 1901. Tbis was before be transferred tbis property to me, but do not remember just bow long before.
“Q. Didn’t you and Chris Yon der Abe sign a deed to Max Kaiser to that property? A. We signed a deed, but it was never delivered.
“I do not know what became of that deed. Max signed a deed conveying the same property to me, but it was not delivered either.
££Q. Who got those deeds after they were signed, if yon know? A. I don’t know.
££Q. Do yon know whether Chris did or not? A. We never got those deeds.
££Q. How is that? A. We never got those deeds.
“Q. Who do yon mean by we? A. Max and I.
“Q. But what I want to get at is,.did you deliver the deed that you and Chris signed to Max? A. We didn’t — I did not.
£‘Q. When did you next see the deed that you and Chris signed, conveying the six stone-front houses to Max Kaiser, and the deed that Max Kaiser signed conveying these houses to you? A. When I seen them again?
££Q. Yes. A. When I took them out of the safe.
££Q. Out of whose safe? A. Out of Mr. Yon der Ahe’s safe.
££Q. When you took them out of the safe where was he? A. He was out of the city.
££Q. Did he tell you to go and get them? A. No, sir.
,££Q. How did you happen to go and get these deeds? A. I had trouble with Mrs. Yon der Ahe, and I understood it was my property, and I went and took those deeds and took them down town to Mr. Woerner, and Mr. Woerner said they were not recorded, and I should record them.
££Q. What Mr. Woerner? A. Mr. William F.. Woerner, an attorney here.
££Q. What did you do with them? A. Mr; Woerner recorded them for me.
££Q. What were those deeds made for? A.' To pay me my money that he owed me.
££Q. Who owed you? A. Mr. Yon der Ahe.
££Q. How much, did he owe you in 1900, at the time you and Chris Von der Ahe made the deed to Max Kaiser, and Max Kaiser made a deed to you? A. He owed me $5000.
££Q. Now, did Mr. Von der Ahe ever institute any court proceedings to set those deeds aside? A. He did.
££Q. How long afterwards? A. As soon as he came back.
££Q. As soon as he came back? A. Yes, sir.
££Q. Do you remember the time that you and Chris Von der Ahe signed a deed conveying the property described in the plaintiff’s amended petition to John S. King? A. Yes, sir.
££Q. And John'S. King signed the deed conveying certain property back to you, and certain property to Chris Von der Ahe? A. Yes, sir.
££Q. Now, will you just tell about that transaction — all about it in your own way? A. Yes, sir; Mr. Von der Ahe and I made a deed to Mr. King for all the property.
£ £ Q. Tell the court what property it included ? A. It included the northeast corner leasehold and northwest corner property, and the six stone-front houses, and Mr. King made a deed back to Mr. Von der Ahe for the northeast corner leasehold and northwest corner property, and he executed another deed for the six houses to me.
££Q. "Were those deeds ever delivered? A. Yes,, sir; they were delivered for the money that he owed me. For that reason they were made.
££Q. How much did he owe you at that time? A. Five thousand dollars.
££Q. Did he ever pay you any part of it? A. Never a cent.
££Q. Now, why did you and Chris Von der Ahe execute the deed to John S. King, and John S. King-execute the deed to you? A. That was for that matter — Chris owed rae that money, and to pay me for that reason it was done.
“Q. Any other reason that this property was transferred to you? A. No, sir; just what he owed me and for that reason he transferred that property over to me.
“Q. That was when? A. That was the 3d day of September, 1902.
“Q. Mrs. Yon der Ahe, did you have any other purpose in taking title to this property in question than in payment of your debt — any other purpose whatsoever? A. No, sir.
“Q. State the purpose for which you took the title to this property September 3, 1902?
“Mr. O’Keefe: She has stated that.
“The Witness: I took it for the money Chris owed me.
“Q. Now, at the time this property was sold, tell the court in your own way what you did? A. You mean when it was sold under the deed of trust?
“Q. Yes. A. I went to Mr. Franciscus and told him, as this was my property I wanted him to buy it in for me, and I would like him to form a corporation, as I had had trouble with Mr. Yon der Ahe before, and didn’t know but what I would get into some more, and my father went down town and seen some one when that property was to he sold, and he got the advice that if I got up a corporation I would not have to have my husband’s signature if I wanted to sell at any time, and I went to Mr. Franciscus ’ office and told him I wanted him to buy the property in for me, as it was my property, and I wanted to form a corporation.
‘ ‘ Q. Did you — what did you direct him to do ? A. I directed him to form this corporation.
“Q. "What did you direct him to do in regard to getting the title to the property before the corporation was formed? A. I directed him to make- a deed of trust.
££Q. Well, did you take the title to the property in yonr name from Mrs. Winkelmeyer? A. No, sir; it was taken in Helen Caldwell’s name.
££Q. Well, how did it happen to be done? Who told them to do it? A. I told them to do it.
££Q. Why did yon tell them to take it in Helen Caldwell’s name instead of taking it in yonr own? A. Then I would be- in just the same place again, and I would need his signature to everything, and that is what I didn’t want. That is why I wanted to form the corporation, so I would not need his signature to sign any papers, or anything, if I wanted to sell, or get a loan of money on it, or anything like that.
££Q. Now, who did Helen Caldwell take the title to this property for, if you know? A. She held it in trust for me.
££Q. Where did you get the money to pay Mrs. Winkelmeyer the $11,500 purchase price of this property? A. I had Miss Helen Caldwell execute deeds of trust for me, so I could get the money.
££Q. How much, did you raise on these four deeds of trust? A. The original deed was $21,500, and I added ten hundred and twenty-five to it, and made a second deed of trust.
£ £ Q'. How much were both deeds of trust, the first and second? A. Twelve thousand, five hundred and twenty-five dollars.
£ £ Q. What became of this money ? What was done with this money that Helen Caldwell borrowed on this property, described in plaintiff’s amended petition? A. That was paid over to Mrs. Winkelmeyer.
££Q. Who did that? A. I did.
££Q. Do you remember when the Kaiser Investment Company was incorporated? A. It was incorporated the 28th day of December, 1903.
“Q. Now, after Mr. Franciscus and Mr. Kunz and Mr. Quackenboss had incorporated this Kaiser Investment Company for you, what did they do with the stock? A. They kept it in trust for me.
“Q. Well, did you ever order them to transfer it? A. I did later on.
“Q. Well, who did you order them to transfer that stock to? A. To transfer it to Mr. Franciscus, one hundred shares over to me and one share to' Max Kaiser.
“Q. Well, how did you happen to transfer that share to Max Kaiser? A. Just to hold him in the corporation, because Mr. Quackenboss wanted to step out.
“The Court (Q.): Who held the balance? A. Mr. Kunz. He held forty-seven shares.
“Mr. Kelley (Q.): Now, how did you happen to have some of this stock transferred to Chris Von der Ahe, forty-seven shares of it? A. Well, Mr. Von der Ahe came and asked me if I would not loan him any of that stock, as he wanted to borrow some money, and that is how I transferred those forty-seven shares over to Chris.
“Q. Do you know who he borrowed the- money from? A. From my brother, Max Kaiser.
“Q. Do you know how much it was? A. Well, he owed him that before that, and at that time he loaned him, I think, three hundred and fifty.
“ Q. Chris Von der Ahe didn ’t pay you any money for that stock, did he — that forty-seven shares of stock? A. No, sir; I loaned it to him.
“Q. To secure the loan of-Max? .A. Yes, sir.
“Q. Now, this one share of stock that you had transferred to Chris Von der Ahe, what did you do that for? A. Just to hold him in the corporation, as it needed three.
“Q. How much stock had been transferred to you? A. One hundred shares of stock.
“Q. That was Mr. Franciscus’? A. Yes, sir.
“Q. And that left Mr. Quaekenboss and Mr. Kunz still? A. Yes, sir.
“Q. And who transferred the forty-seven shares to Chris Von der Ahe? A. I told Mr. Kunz to transfer it to Mr. Von der Ahe.
“Q. And he did? A. Yes, sir.
“Q. What became of Mr. Kunz’s other two shares of stock? A. I think Max got them.
“Q. How did he happen to get them ? A. Well, I owed him one hundred dollars, and I asked him if he would not take those two shares of stock in payment of it, and he said he would.
“Q. How did they happen to be transferred over to him? A. It was done at my direction.
“Q. Now, Mrs. Von der Ahe, how much have you paid out in taxes on this property since September 3, 1902? A. I have paid out for city and school taxes five thousand one hundred and nine dollars and some cents.
“Q. Do you know how much those taxes run a year? A. They run from about three hundred- — ■
“The Court (interrupting): What is the purpose of this?
■ “Mr. Kelley: I want to show she has been paying off debts on this property, taxes, and so forth.
“The Court: She has been getting the income, too, hasn’t she?
“Mr. Kelley: Yes, sir.
“The Court: I don’t think that cuts any figure in the case. She was getting the income from the property and she paid the taxes. I don’t expect in this action if a decree goes against her to hold her for any income, and, of course, I cannot take into consideration the fact that she paid the taxes.
“Mr. Kelley (Q.): State whether or not you have •held this property, the title to this property, for Chris Von der Abe, since it was conveyed to yon? A. No, sir; it was my property.
“Q. Has be gotten tbe rents and profits and income from it? A. No, sir.
“Tbe Court (Q.): Who bas been collecting tbe rents? A. I did.
“Tbe Court (Q.): You collected them yourself? A. Yes, sir.
“Tbe Court (Q.): Since when? How long bave you been collecting them? A. Tbe last four years.0
William F. Woerner testified substantially as follows :
“Q. Do- you know Mrs. Anna K. Von der Abe? A. I do.
“Q. Did you represent ber in tbe breach of promise suit against Chris Von der Abe? A. I did.
“Q. About what year did you file that suit? A. I think it must bave been about tbe latter part, or some time in 1896.
“Q. About 1896? A. Yes, sir.
“Q. And what was tbe termination of that suit? A. That suit was disposed of by a settlement between tbe parties.
“Q. It never went to trial? A. It was never tried.
“Q. It was settled out of court? A. Yes, sir.
“Q. Do you remember tbe amount of tbe settlement? A. I do. Three thousand dollars.
“Q. Do you remember whether or not Mrs. Von der Abe' took any note or any evidence of that indebtedness from Mr. Von der Abe? A. Tbe witness: To tbe best of my recollection I advised Mrs. Von der Abe to take nothing but cash, but there seemed to bave been a great deal of difficulty of getting cash, and my recollection is that it w;as partly paid in cash and partly in notes.
“Mr. Kelley: Q. Do you remember how much cash? A. Notes that were supposed to be good at that time.
“Q. Do you remember how much cash? A. Well, I know that there was six hundred dollars paid in cash, and I think something in addition to that — several hundred dollars more than that.
“Q. In cash? A. Yes, sir; I believe two hundred dollars. I think the entire payment in cash was eight hundred dollars.
“Q. One of the terms of that settlement was he had to pay your fee? A. Yes, sir.
“Q. And that was six hundred dollars? A. Yes, sir; I insisted upon Mr. Von der Ahe paying that in cash.
“Q. That was six hundred dollars? A. Yes, sir.
“Q. And two hundred additional that you speak of was to her? A. Yes, sir; I insisted that she should get at least some cash.
“ Q. Do you know whether or not she ever got any Sportman’s Park notes? A. Well, now, I cannot testify to that, because I don’t recollect whose notes they were, but they were stated to me to be perfectly good. Mr. Von der Ahe assured me time and again they were good.
“Q. You don’t know whether the notes were ever paid? A. I do not.”
‘ ‘ CROSS-EXAMINATION.
“Q. When was that settlement made? A. That settlement was made in August, 1897. The money was paid then.
“Q. 1897? A. Yes, sir.
“Q. These notes were delivered to Mrs. Von der Ahe at that time? A. I do not know. I think they were.
“Q. • Did you handle the transaction about the closing of the deal? A. I arranged the terms and the parties both stated that the matter had been settled and the suit dismissed.
“Q. You never did see the notes? A. Now, I am not prepared to testify to that. I cannot recall whether I actually saw the notes or not, but I know there was a bona-fide consideration of three thousand dollars, or that suit would not have been dismissed.
“Q. Yon didn’t know at the time the settlement was made whether or not there was an agreement on Mr. Yon der Ahe’s part to marry the then Miss Anna Kaiser? A. Well, he was married at that time, and that is why the breach of promise was brought.
“Q. He was married at that time? A. Yes, sir.
“Q. You would not undertake to say but what those notes were surrendered in settlement of the debt by Mr. Von der Ahe marrying Miss Anna Kaiser? A. I do undertake to say that that consideration passed for the settlement of the breach of promise case, for the damages that were claimed in that petition.”

■Joseph F. Obernier testified:

“Q. What is your business? A. Cashier of the Northwestern Bank.
“Q. Was it the Northwestern Savings Bank in the year 1897? A. Yes, sir.
“Q. I now hand you some papers. Will you tell the court what they are? A. They are certificates of deposit in the name of Anna Kaiser.
“ Q. Anna Kaiser is now Mrs. Anna Yon der Ahe ? A. Yes, sir.
“Q. What are the amounts of those certificates of deposits? A. The full amount is seven hundred and fifty dollars.
“Q. Were they issued by your bank? A. Yes, sir.
“Q. For money she put in theré? A. Yes, sir.”

There was also one for $250. All of them were introduced in evidence.

“Mr. Kelley: Q. The money called for in all
these certificates of deposit was deposited by Anna Kaiser, who is now Anna Yon der Ahe? A. Yes, sir.
“Q. Do you know when she drew this money out? A. Yes, sir: February 14, 1898.
“Q. February 14, 1898? A. Yes, sir.
“Q. I now hand you two papers and ask you what they are? A. They are certificates of deposit issued by the Northwestern Savings Bank payable to Max Kaiser, one for one hundred and the other for one hundred and fifty dollars.
“Q. Bearing what date? A. The one-hundred-dollar one bears the date July 21, 1897, and the one for one hundred and fifty dollars, September 13, 1897.
‘ ‘ Mr. Kelley: I offer them in evidence, your Hon- or, and ask that they be marked as exhibits.
“The Court (Q.): That money was drawn out of your bank, was it? A. Yes, sir.
“The Court (Q.): On all the certificates? A. Yes, sir.
“Mr. Kelley: When did Max Kaiser draw out that $250? A. The same day, February 14, 1898.”
Max Kaiser among other things said:
“Mr. Kelley: Q. Now, Mr. Kaiser, do you remember the time that Chris Von der Ahe was in jail in Pittsburgh? A. Yes, sir.
“Q. What year was that? A. I think — 1897.
' “Q. 1897? A. Yes, sir.
“Q. Do you know whether or not of your own knowledge your sister sent him any money at that time? A. I do, sir.
“Q. How much? A. It was $1000.”

The testimony of numerous witnesses shows that the property in question was worth at the time it was conveyed to Anna K. Yon der Ahe, about $15,500; some testified, it was worth about $17,000, others $16,000 and some others $14,000 or $15,000.

The evidence also tended to show that at that time Chris Yon der Ahe had a homestead right in said property of the value of $3000.

On the date of the institution of the bankruptcy proceedings against Chris Yon der Ahe, his indebtedness aggregated some $21,000, some of which had been reduced to judgments. Of that $21,000 of indebtedness, only about $12,000 of it was proven up against him before the referee in bankruptcy.

Upon cross-examination of Charles O. Kunz, a witness introduced by appellant, he testified as follows:

“Q. Now, before the sale under the deed of trust, Mrs. Anna K. Yon der Ahe owned these six stone-front houses, didn’t she?
“Mr. O’Keefe: Well, the deeds are the best evidence of that.
Mr. Kelley: I want to prove a conversation now he had with her.
“Q. Do you remember that? A. I think so, but I would have to refer to the deed myself.
“Q. Do you remember about the time this sale was to take place and Mrs. Yon der Ahe came to yon and had a conversation with you about this property? A. Yes, sir.
“Q. What .did she say, 'Mr. Kunz? A. My recollection is that she wanted us to buy the property and have us make a loan for her. That is what she asked at the time.
“Q. And she told you at that time it was her property and she wanted to protect it? A. Yes, sir.
“Q. Didn’t she tell you she had had trouble with Chris and she didn’t want.to take the title in her name, or.something to that effect? A. I think she did.
“Q. And then did she direct yon to get the title for her to this property? A. You mean to purchase it?
“Q. Yes, sir; from Mrs. Winkelmeyer? A. 1 think so, yes.
“Q. And you did that as her agent? A. Yes, sir.
“Q. Plow did you happen to put the title to this property in the name of Helen Caldwell? A. We had it put in her name temporarily until the company was organized.
“Q. Who was that for? A. It was for Mrs. Von der Ahe at that time.
“Q. Now, then, Helen Caldwell never paid a dollar for that property? A. No, sir.
“Q. And how did Helen Caldwell happen to execute these notes and deeds of trust to August Gehner -for $12,525? A. By request of our office.
“Q. For Mrs. Von der Ahe? A. Yes, sir.
“Q. But you were acting as agent for Mrs. Von der Ahe? Is that right? A. Yes, sir.
“Mr. Kelley: Q. Now, all the interest then that Helen Caldwell had in this property was to hold it for Mrs. Von der Ahe until this corporation was organized? A. Yes, sir.
“Q. Did Mrs. Von der Ahe tell you to organize the Kaiser Investment Company? A. Yes, she did.
“Q. She instructed you to do that, did she? A. Yes, sir.
“Q. And did she give you her reason for that, wanting that company organized? A. Yes, I think I mentioned that before, that she could not hold the title to it, being a married woman.
“Q. And had had trouble with Mr. Von der Ahe —did she mention that? A. Yes, sir.
“Q.' And in case she wanted to convey it or mortgage it, she wanted it so she could do that? A. Yes, sir.
“Q. Do you remember that? A. Yes, sir.
“Mr. Kelley: Q. Then you were acting as agent for Mrs. Von der Ahe in getting this loan from G-ehner? A. Yes, sir.
‘ ‘ Q. And in having this transfer made from Christina Winkelmeyer, is that right? A. Yes, sir.
“Q. Did you pay out the money realized from these loans. For whom did you pay out the money realized from these loans, from Mr. Gehner? A. For whom?
“Q. For whom, yes. A. Why, it was paid out for Mrs. Von der Ahe, but the Kaiser Investment Compány was the way the account was on the books.
“Mr. Kelley: Q. Now, Mr. Kunz, will you look at that paper and tell me what it is (indicating paper) ? A. It is articles of corporation.
“Q. For what? A. Kaiser Investment Company.
“Q. Will you tell me the date on that — when that was issued by the Secretary of State of Missouri? A. The 28th day of December, 1903.
“Q. Yes, sir. Now, will you look at the paper I now hand you (handing witness paper) ? A. That is a general warranty deed from Helen Caldwell to the Kaiser Investment Company.
“Q. What date does that deed bear? A. The 15th of December, 1903.
“Q. When was that deed acknowledged? A. The 15th day of December, 1903.
“Q. The same day it was recorded? A. Yes, sir.
“Mr. Kelley: Q. The deed from Helen Cald-
well to the Kaiser Investment Company then was made fifteen days before the Kaiser Investment Company was incorporated, wasn’t it? A. About thirteen days.
“Q. About thirteen days-? A. Yes, sir.
“Q. Now, when Helen Caldwell executed that deed, what did she do with it? A. Y7hy, I don’t recall.
“Q. Grave it back to you didn’t she? A. I could not say that.
“The Court: Very likely. We will admit that she did. It doesn’t make any difference.
“Mr. Kelley: Q. Now, all the interest then that Helen Caldwell had in this property was to hold it until this corporation was organized? A. Yes, sir.
“Q. Did Mrs. Von der Ahe tell you to organize the Kaiser Investment Company? A. Yes, she did.
“Q. She instructed you to do that, did she? A. Yes, sir.
“Q. And.had had trouble with Mr. Von der Ahe —did she mention that? A. Yes, sir.
“Q. And in case she wanted to convey it or mortgage it, she wanted it so she could do that? A.Yes, sir.
“Q. Do you remember that? A. Yes, sir.”

I. There is no question but what Chris Von der Ahe, the husband of Anna K. Von der Ahe, was hopelessly insolvent at the time he transferred the property to the respondent, his wife; and it cannot be successfully contended that the evidence for the appellant did not tend strongly to prove that said transfer was made to defraud his creditors of their just dues. • In other words, I feel satisfied from reading this voluminous record, about three hundred printed pages, that appellant made out a strong’ case in behalf of the creditors, and had there been no evidence to the contrary, doubtless the learned chancellor should, doubtless would, have found for the appellant and decreed the deeds mentioned to be null and void. But when we view the entire case, both sides, as illuminated by all the evidence introduced, that for the appellant, as well as that for the respondents, quite a different color and character are given to the facts sought to have been established by appellant.

What are the facts of the case as learned chancellor found them to he? Answer: When Chris Yon der Ahe married the respondent Anna K. Kaiser, he owned the property in question, worth about $15,500, possibly $16,000, as well as other real estate, which was incumbered by a deed of trust executed in behalf of Mrs. Winkelmeyer to secure a loan of $11,000 and interest. That when this deed of trust was foreclosed, or rather when the sale took place under it, $12,525 was required to liquidate or pay that debt (all of which was assumed by the respondent, Anna K. Yon der Ahe). That at the time of the transfer of said property in question to her he was indebted to her in the sum of at least $4200, made up of the $3000 recovered in the breach of promise suit, less the $200 paid her, and $600 paid to her attorney, the $1000 she sent to him, in Pittsburgh and the $1000 she borrowed from her mother and turned over to him. If we add this $4200 to the $12,525 secured by the Caldwell deed of trust on the property and assumed by respondents, we would have the sum of $16,525. That sum unquestionably is at least $500 in excess of the actual value of the property when it was transferred to Anna K. Yon der Ahe, to say nothing of the homestead rights of Chris Yon der Ahe or the dower interest of Emma Yon der Ahe, his former and divorced wife.

These observations are in harmony with the written memoranda of the chancellor’s findings and decree filed in the case, and embodied in the record.

If this is true, which we must accept as such, since the chancellor so found from the preponderant evidence, then the findings and decree of the circuit court must not be disturbed without they contravene some law of the State or sound principle of equity. [Huffman v. Huffman, 217 Mo. 182.]

II. Counsel for appellant has assigned many legal objections to the findings of the court, but after a careful consideration of each and all of them, I axn convinced that there is but one of ■ them that requires special consideration at the hands of this court, and it is couched in the following language:

“(a) Promissory notes received by defendant Anna K. Von der Ahe in settlement of breach of promise case were not the bankrupt’s obligations.
“ (b) Marriage of defendant to bankrupt subsequent to execution and delivery of these notes destroyed their validity.
“(c) Delivery of notes by defendant Anna K. Von der Ahe to bankrupt after her marriage to bankrupt raised the presumption of payment. [22 Am. & Eng. Ency. Law (2 Ed.), 589; Lawson v. Gudgel, 45 Mo. 480; Stephenson v. Richards, 45 Mo. App. 544; Nat. Tube Works Co. v. Machine Co., 118 Mo. 365, l. c. 376; Klauber v. Schloss, 198 Mo. l. c. 513.]”

This objection seems to be composed of three elements, which I have designated by the letters a, b, and c, and for convenience I will consider them in the order stated.

(a) Attending the first: I am not clear that I comprehend the meaning of counsel as stated in clause (a) of this objection.

It is conceded that the promissory notes received by the respondent Anna K. Von der Ahe, {nee) Anna K. Kaiser, were not the personal obligations of Chris Von der Ahe, but were notes or obligations issued by the Sportman’s Park Association, which the evidence shows he owned and transferred to her in satisfaction of the amount he owed her on account of the settlement of the breach of promise suit mentioned. I am unable to see that there would have been any difference in the legal effect of the settlement, had Chris Von der Ahe given her his individual promissory note instead of those of the Sportsman’s Park Association. I can readily see how there might have been a difference in the value of the notes issued by Chris and those issued by the Association; but that fact in no manner could have affected the character of the settlement, or have destroyed their validity.

In my opinion, there is no merit in this element of the objection.

(b) Regarding the second: Counsel have cited us to no authority supporting the contention that the mere fact of the marriage of Chris Yon cler Ahe to Anna K. Kaiser, subsequent to the sale and transfer to her of the notes of the Sportsman’s Park Association in settlement of the breach of promise suit, nullified them or destroyed their validity. Nor has any suggestion or reason been assigned why that should be true; and after much thought and reflection I have been unable to see any solid foundation upon which to predicate such a contention. In 'my opinion it is wholly untenable.

(c) Respecting the last contention: It might be conceded (in the absence of the statute that declares all gifts, etc., of money and property by a wife to her husband not in writing shall be void) that the delivery of the notes by the wife to her husband raised a presumption of payment, yet the uncontradicted evidence shows that it was not the intention of the wife to give the notes to her husband, but clearly her intention was to lend them to him in order that he might use them as collateral security for money he desired to borrow.

The authorities cited in support of this proposition have no application to the facts of this case. Had Chris Yon der Ahe been the maker of the notes, and had the wife delivered them back to him, in the absence of all evidence, then a presumption of payment would have arisen, but not so in a case like this, where a third party was the maker, and the delivery fully ex.plained by the evidence.

There is no merit in the objection.

III. After a careful consideration of the record in this case, and a review of the authorities cited, I am satisfied that Chris Von der Ahe was legally and justly indebted to his wife, Anna K., in the sum of $4200, and that he conveyed the property in controversy to her subject to the deeds of trust théreon, in satisfaction 'of that indebtedness, which was more than the property was worth, and so believing, in my opinion, the judgment of the circuit court should be affirmed.

It is so ordered.

All concur.


author: GRAVES, J.

text:
    CHARLES JABLONSKY v. BARNARD WUSSLER et al., Appellants.
    Division One,
    December 2, 1914.
    IMPLIED EASEMENT: Obstruction: Injunction. For the reason stated in Bussmeyer v. Jablonsky, 241 Mo. 681, the judgment in this case in which plaintiff wishes to enforce an implied easement conferred upon one piece of property by the owner of the adjoining piece, and to enjoin the defendants from obstructing the entrance to a three-foot passageway upon a lot owned by defendants, is reversed, the facts and issues being the same.
    Appeal from St. Louis City Circuit Court. — Hew. Jamies E. Withrow, Judge.
    Reversed.

      Muench, Walther & Muench for appellants.

      August Wals, Jr., and W. G. Carpenter for respondent.
   GRAVES, J.

Action in equity to enforce an im- ■ plied- easement. Such action takes the form of a petition by which it is sought to enjoin the defendants from obstructing the entrance to a three-foot passage-way upon the western part of a lot owned by the defendants.

Both the facts and the law of this case were before this court in the case of Bussmeyer v. Jablonsky, 241 Mo. 681. The present plaintiff was the defendant in the Bussmeyer case. He urged upon us then the doctrine of there being required the element of necessity before there could be an easement by implication of law. He says in the record before us that the facts of the two cases are practically identical. The admission thus reads:

“Mr. Carpenter: If your Honor please, I may concede right now that so far as any easement is. concerned by prescription, we don’t claim any. We are after an easement upon a different theory from that, and I want to call your Honor’s attention to this case here. This is a case in the Utah Supreme Court, the case of Rollo v. Nelson, 34 Utah, 116 (citing and reading from opinion; also from case from Pennsylvania Supreme Court, Liquidated Carbonic Co. v. Wallace; also case from Oregon Supreme Court, German S. & L. Co. v. Gordon). These are all reported in the 26 L. R. A., New Series. One is reported at page 315, another at page 327, and the other case at page 331. All of them were heavily annotated. Here is a line of cases identical with this case (reading extracts from cases). This is all on the theory that these easements are appurtenant to this use in connection with the property sold. At this point it may be proper to state to your Honor that this very passageway on the south side of this man’s property, going into the Bussmeyer property, was litigated in the circuit court here in 1908 in the same way that this is now being litig’ated. There Mr. Jablonsky stopped up the passageway, and this same identical proceeding was brought against him, and in the hearing of that case before Judge Rule, the right to the easement was upheld. That case is now on appeal in the Supreme Court in this State. It raises the same identical question and practically the same identical facts here involved. And we hope to reach that in the Supreme Court next year. This is not a prescription easement we are seeking here. This is an easement where it was made specifically to the property, by the owner himself and where it was conferred upon one piece of property in favor of an adjoining piece of property by the owner, an appurtenant to it, and enhances the value of that property. I want to offer that evidence, your Honor, and merely save an exception to the overruling of the objection.”

A picture in the record will explain the situation. We have “exhibit 2” which shows both the passageway in dispute in the case at bar and the one in the> Bussmeyer case. Here is the exhibit:

EXHIBIT 2.

The passageway in dispute we have marked with the letter “A.” Then there is another passageway marked ££B,” and still a third one which we have marked ££C.” The one marked ££C” is the one in dispute in the Bussmeyer case, supra. Back of all this property is the alley way fully described in the Bussmeyer case.

When this short statement and this picture are examined in connection with the full statement of facts in the Bussmeyer case, there will be a full statement of the case at bar. Prom it all it appears that the law stated in the Bussmeyer case controls this case. Under the views there expressed, this judgment should be reversed, and it is so ordered.

All concur.