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    BRYCE SMITH v. LUDWIG W. KIENE et al., Appellants.
    Division One,
    November 30, 1910.
    1. NOTICE: Modification of Judgment: Nunc Pro Tunc Order. Defendants upon whom proper summons has been served and who have filed motions for a new trial and in arrest of judgment, are, in contemplation of law, in court, at the time a judgment is set aside and a proper judgment, nunc pro^ tunc, at the same term, is rendered.
    2. -: -: -: Appearance. Even if defendants are entitled to notice before a judgment can be set aside and a nunc pro time judgment rendered, at the same term, they waive all objections for want of notice, by actually appearing, and filing a motion to set aside the nunc pro tunc judgment.
    3. JUDGMENT: Aided by Antecedent Entry. In case of doubt as to the exact meaning of a judgment, an antecedent record may be considered in determining its effect. Where a judgment was rendered and at a later date of the term set aside, and another judgment, nunc pro tunc, was entered, the former judgment set aside may be considered in determining the legal effect of the latter judgment.
    4. -: In Tax Suit: Not Rendered Against Defendants. A judgment for taxes paid by plaintiff in ejectment is not invalid because it simply renders judgment for plaintiff for the amount of taxes paid by him, but does not mention the parties against whom plaintiff recovers, and does not say “against defendants.” If it names the plaintiff and defendants, is made a lien on the land, which it describes, and grants to plaintiff a special execution, it is sufficient, and (under the charter of Kansas City, and) usually the interest and estate of all persons made parties will be conveyed by a proper sale under execution. In tax suits, the judgment is not-a personal, one against defendants, but one against the land, upon which it is proper to make it a lien.
    5. -: Final Suit in Ejectment: Judgment for Taxes. Plaintiff in the first count of his petition sued in ejectment, basing his right upon a tax deed, and in the second count asked that if said tax deed were held to be void, he might have judgment for the taxes paid by him to the sheriff and since the deed was executed. At a trial in 1902 the tax deed was adjudged void, and judgment rendered for defendants for costs, on the first count of the petition; and thereupon plaintiff was permitted to amend his petition, brihgipg in new parties and asking for judgment for the taxes IvaW., and the cause was continued, and in 1904 the court retired judgment in plaintiff’s favor for the amount of taxes paid by him. Held, that this last judgment was a final judgment. The second count of the original petition was premature, and did not state a good cause of action since plaintiff’s right to recover thereon was dependent upon his failure to recover upon the first count; but the amended petition was in effect a new cause of action, and defendants appearing thereto, the judgment rendered thereon was not interlocutory, but fina i ■
    6. .-: Certificate of Purchase at Tax Sale. The charter of Kansas City does not require the sheriff to issue a certificate of purchase to the purchaser at a tax sale. Even if it did it could not invalidate the execution under which the sale was made. It co.uld at most only affect the sale.
    7. -: Amending Petition After Publication to Non-Residents: Appearance. Appearance by non-residents waives whatever error there may be in amending the petition after publication of the order of summons to them.
    8. SPECIAL TAX DEED: Clerical Error in Report as to Name. Where after a sale upon special -execution under a judgment for special taxes, a certificate of purchase was given to Bryce Smith and subsequently, on failure to redeem, a deed was executed to him, the fact that the sheriff,, in his report of the sale, said Bryce Smith was the highest bidder, but the sale was made to B. Howard Smith, does not affect the validity of the deed to Bryce Smith. The recital in the report that the sale was made to B. Howard Smith was clearly a clerical error.
    9. RES ADJUDICATA: Defenses Raised in Another Proceeding: Ejectment. Where defendants not only could have raised, but did raise, in a former suit all the questions presented a's defenses in this ejectment suit, and those questions were there adjudicated by a court of competent jurisdiction, they are bound by the judgment therein.

      Appeal from Jackson Circuit Court. — Row. Hermann Brumback, Judge.
    Affirmed.

      E. W. Shannon and L. A. Laughlin for appellants.
    (1) The judgment of March 23,1904, is void because entered without notice. Phelps v. Brumback, 107 Mo. App. 16; Parker v. Johnson, 22 Mo. App. 516; Jackson v. Pulton, 87 Mo. App. 228; Laun v. Ponath, 91 Mo. App. 271; Roberts v. Improvement Co., 126 Mo. 460; Jones v. Yore, 142 Mo. 38; Smith v. Kander, 85 Mo. App. 33; Ault v. Bradley, 191 Mo. 709. (2) The form of judgment is so vague as to make the judgment void. Moody v. Deutsch, 85 Mo. 237; Freeman on Judgments (4 Ed.), sec. 50a; 11 Ency. PI. and Pr. 951; Aultman v. Wirth, 45' 111. App. 614; Goldberg v. Markowitz, 94 App. Div. (N. Y.) 237; Ferrell v. Simmons, 63 W. Va. 45. (3 ) The judgment entered on March 23d is not a final judgment. Boothe v. Loy, 83 Mo.. App. 601; Russell v. Railroad, 154 Mo. 428; Cramer v. Barmon, 193 Mo. 327; Crowe v. Peters, 63 Mo. 429; McHoney v. Insurance Co., 44 Mo. App>. 425; Kabrick v. Insurance Co., 48 Mo. App. 393; Badgley v. St. Louis, 149 Mo. 122; Kansas City v. Mitchener, 85 Mo. App. 36. (4) The execution in No. 7666 is void because no certificate of purchase was. issued. Davis v. Evans, 174 Mo. 307; Bryant v. Russell, 127 Mo. 422; Bradley v. Judd, 127 Mo. 434. (5) The judgment of March 23d was void because the petition was amended after publication of the order to non-resident defendants. Holland v. Adair, 55 Mo. 49; Janney v. Sped-den, 38 Mo. 395; Roberts v. St. Louis M. L. I. Co., 26 Mo. 460 ; Railroad v. Atchison, 137 Mo. 218'; Hinkle v. Lovelace, 204 Mo. 208, 226. (6) The sheriff’s deed in case No. 33184 is void. Warren v. Manwarring, 173 Mo. 21.

      Dana, Cowherd & Ingraham for respondent;
    (1) Appellants, having had the opportunity to raise in the original case, and having there raised, each and every point here urged, and having had the judgment of the court thereon, and having filed a motion to quash the execution, motion for new trial and motion in arrest of judgment, which were overruled, and appeal allowed to the Supreme Court, and the appeal not perfected, eannot have collaterally in this case another hearing of such matters. Shelbina Hotel v. Parker, 58 Mo. 329 ; Kane v. McC'oon, 55 Mo. 200; Yates v. Johnson, 8? Mo. 217; Beckner v. McLinn, 107 Mo. 288; State ex rel. v. Christy, 83 Mo. 374. (2) There is no merit in appellants’ first point that judgment of March 23d is void because entered without notice. The parties appeared and filed various motions against the judgment and appealed from it. This not only waives the notice, like entry of appearance waives the issue and service of a summons, but also shows that they did actually have notice. Loring v. Groomer, 110 Mo. 632. (3) There is no merit in appellants’ second proposition that the judgment is void because it is not a personal judgment against anybody. McDonald v. Frost, 99 Mo. 48; Black v. Rogers, 75 Mo. 448; Moody v. Deutsch, 85 Mo. 244. We were not entitled to a personal judgment in this case. Siebert v. Allen, 61 Mo. 488; Kansas City v. Railroad, 77 Mo. 186; Granite Co. v. Bobb, 37 Mo. App. 486; City v. Miller, 66 Mo. 467. We now can test judgments by matter of substance rather than the measure of any particular draft or form. Farley Bros. v. Cammann, 43 Mo. App. 174; Trumbo v. Flournoy, 77 Mo. App. 324; Lane v. Doud, 172 Mo. 176.. There can be no personal judgment in tax suits even where there is personal service. A sale under a valid judgment in such cases transfers to the purchaser only the title and interest of the defendant to the suit. Milner v. Shipley, 94 Mo. 166; Carr v. Coal Co., 96 Mo. 149. (4) There is no merit in appellants’ third proposition that the judgment of March 23d is not a final judgment, in that the suit was based on two counts, and this judgment is upon the second count only. The right to reimbursement or foreclosure of the lien given on the land does not commence to run until the title acquired by the tax deed fails, that is, until it is adjudged bad by a court of competent jurisdiction. Railroad v. Alexander, 49 Ark. 192; McClure v. Warner, 16 Neb. 447; Bryant v. Esterbrook, 16 Neb. 217; Otie Co. v. Brown, 16 Neb. 295; Shoenheit v. Nelson, 16 Neb. 235; Pitkin v. Reibel, 104 Mo. 513.
   WOODSON, J.

This is an action of ejectment to recover the possession of a certain lot situate in Kansas City, and particularly described in the pleadings. There was judgment for plaintiff, and defendants appealed. The facts are few and are practically undisputed; and are substantially, as stated by counsel for appellants, as follows:

“This is an action of ejectment brought by Bryce Smith against Ludwig W. Kiene, his wife and daughter, Willie Kiene, to. recover possession of a lot of .ground in Kansas City, Missouri, having a frontage of twenty-seven feet on Eighteenth street, and extending back from the street to the depth of one hundred feet. 'The property is a part of lots 1 to 4, block 4, Evans’ Addition, and lies between McG-ee and Oak streets, near the Belt line.
“The common source of title of the land, except the east one foot, is Wilhelmina Kiene. She was the first wife of Ludwig W. Kiene, one of the defendants. Wilhelmina Kiene acquired the title to the ground by warranty deed in 1879. She died in 1881 or 1882, and left surviving her, her husband, Ludwig W. Kiene, and Hugo L. Kiene, Dora C. Kiene, Willie Kiene, Bertha Merkel, now wife of Julius Merkel, Emma Dannell, now wife of Richard Dannell, and Edith Feinup, now wife of Fred Feinup, her children. Ludwig W. Kiene married again after the death of his first wife, and with his. second wife was living in a cottage on the ground at the time of the commencement of this action.
“On December 12, 1899', the Barber Asphalt Paving Company obtained a judgment in a suit in the Jackson Circuit Court (No. 33184) on a special taxbill for $236.60 against the east twenty-sevén feet of the west fifty-seven feet of lot 1, being that part of the ground in controversy fronting on Eighteenth street and extending back from the street to the depth of twenty-five feet. A special execution was issued on this judgment on October 16, 1901, and on November 30, 1901, the land was sold by the sheriff. The sheriff’s report of sale recites that Bryce Smith was the highest bidder, but the land was sold to B. Howard Smith. A certificate of purchase was given by the sheriff to Bryce Smith. The land not being redeemed from the sale on December 29,1902, a sheriff’s deed was given to Bryce Smith, conveying the east twenty-seven feet of the west fifty-seven feet of lot 1.
“All the property in question was sold for city taxes in 1897. Not being redeemed, a tax deed was given by the city treasurer on November 9, 1899, to L. M. Smith, daughter of B. Howard Smith, conveying the land for the taxes of 1897. She afterwards married George M. Hartmann, and in 1902, she brought a suit in ejectment in the Jackson Circuit Court (No. 7666) as L. M. Hartmann against Ludwig W. Kiene, his wife and Willie Kiene. The first count of the petition was in the usual form for ejectment, and the second count alleged that the title of the plaintiff was derived through a tax deed and that the plaintiff had paid out various sums of money for taxes, aggregating $289'.56, and prayed that in the event that the tax deed was declared void said sum be declared a lien on the land.
“The case came on for trial on December 9’, 1902, and the court held the tax deed void and instructed the jury to find for the defendants on the first count. Leave was given plaintiff to file an amended petition making the heirs of Wilhelmina Kiene parties defendant, and the ease was continued. On December 20, 1902, plaintiff filed a second amended petition, making the other children of Wilhelmina Kiene parties defendant. This amended petition in the first count sets out a cause of action in ejectment against Ludwig W. Kiene, his wife and daughter, Willie, and in the second count alleges that there has been a trial on the first count and the plaintiff defeated, for the reason that the tax deed is void on its face, and prays for a lien on the property for the taxes paid, aggregating $340.58.
“On February 21, 1903, an order of publication was obtained for Emma Dannell, Richard Dannell and Minnie Kiene. There was personal service on the other defendants. Proof of publication was filed April 18, 1903, and on March 5, 1904, the case was heard. Plaintiff was permitted to amend her petition by inserting the taxes paid for the year 1903, and a personal judgment was entered against the defendants for $889.99 on both counts of the petition. On March 23, 1904, without notice to the defendants, the court set aside the former judgment of March 5th, and entered a new judgment, nunc pro tunc. By this latter judgment, there was no finding on the first count of the petition. On the second count judgment was rendered in favor of the plaintiff for $889.99, and the same was made a lien on the property. On November 9, 1904, a special execution was issued on this judgment. The property was advertised and sold under this execution on December 23,1905, to Bryce Smith. A deed was given by the sheriff to Bryce Smith on the day of the. sale and on the following day this action of ejectment was begun.”

There are some additional facts which will be noted in the opinion in connection with the discussion of the propositions to which they relate.

I. The first insistence of counsel for appellants is that the judgment of nunc pro time of Marola 23, 1905, is void, because it was rendered without notice to them.

This insistence is untenable for two reasons: First, the defendants there, appellants here, were, in contemplation of law, in court on that day by virtue of the original service had upon them and through the pendency of their undisposed motions for a new trial and in arrest of judgment. That being true, notice of the nunc pro time order was unnecessary.

Second, But conceding the defendants in the former suit were entitled to notice of the nunc pro tune proceeding, however they, the appellants here, actually appeared in court there; filed a motion to set aside that judgment; also a motion to quash the execution issued on the same, and when it was overruled they excepted and appealed to this court.

Such appearance by the parties in interest waived all objections for want of notice. [State ex rel. v. Board, 108 Mo. 235; State ex rel. v. Harrison, 226 Mo. l. c. 171.]

II. The validity of the nime pro time judgment of March 23, 1905, is also assailed by counsel, because it “is so vague as to make the judgment void,” for the reason assigned that, “In the judgment of March 23d it is adjudged that said plaintiff have and recover the sum of $889.99, together with interest thereon, etc. No mention is made of the parties from whom the plaintiff recovers. A judgment must show of and for whom it is given.”

In order to properly understand this proposition it will be necessary to set out the judgment in this connection. It reads as follows:

Li. M. Hartman v. Ludwig Kiene, Mrs. Ludwig Kiene, Willie Kiene, Louis Hugo Kiene, Dora C. Kiene, Bertha Merkel, formerly Bertha Kiene, and Julius Merkel, her husband, and Julius Merkel, Emma Dannell, formerly Emma Kiene, and Richard Dannell, her husband, Edith Feinup, formerly Edith Kiene, and Fred Feinup, her husband, Minnie Kiene, Sam B. Hough, Emma Daenel, and Richard Daenel, Defendants, 7666.
This cause having heretofore been submitted to the court for trial, the plaintiff appearing by C. E. Burnham, her attorney, and the defendants, Mrs. Ludwig Kiene and Willie Kiene, appearing in their own proper person and tv E. W. Shannon, their attorney, and Ludwig Kiene and Hugo L. Kiene, appearing by E. W. Shannon, their attorney, and Bertha Merkel by W. H. Brown, her attorney, and each and every of the other defendants-being duly and legally summoned to appear and having been three times called, come not, but made default, and the said cause was submitted to the court on the pleadings, evidence- and arguments of the counsel and taken under advisement,, and judgment rendered in said cause on March 5, 1904.
And it appearing to the court that the judgment entered of record in said cause in Record 301, at page 207; does not conform to the judgment of the court rendered in said cause; now, therefore, the said entry of judgment in said cause appearing in Record 301, at page 207, of this court, is hereby set aside and: for naught held and the following judgment made and entered' nuno pro tuno in said cause in conformity with the judgment of the court rendered therein, to-wit:
Plaintiff has leave to amend the. second count of her amended petition, by interlineation, so as to include the taxes paid during the year 1903 on the property in controversy.
And the court finds for the plaintiff on the second count of her amended petition for the' sum of $889.91.
It is therefore considered, adjudged and decreed by the court that under the second count of plaintiff’s amended petition, said plaintiff have and recover the said sum of $889.99, together with interest thereon from the date hereof at the rate of twenty-four per cent annum, and costs of this case, and that this judgment shall be a special lien upon the real property in controversy under the second count, to-wit:
The east twenty-seven feet of the west fifty-seven feet of lots one, two, three, and the north fifteen feet of the east twenty-seven feet of the west fifty-seven feet of lot four, all in block four in Evans’ Addition, situated in Kansas Gity, in Jackson county, Missouri, and that the same be levied and collected out of the said described real estate, and that plaintiff have hereof special execution.
Further ordered that all motions for new trial and in arrest of judgment heretofore filed by defendants are hereby refiled to this judgment.

In connection with, the offer of the foregoing judgment, counsel for respondent offered the entry of jndgment in the same record at page 207, made in the same case of Hartman v. Kiene et al., of date March 5, 1904.

Said record entry is in words and figures as follows :

Now on this day plaintiff has leave of court to amend petition by inserting the taxes for the year 1903 and judgment is rendered for the plaintiff and against the defendants on two counts for the sum of $889.99. It is therefore considered and adjudged by the court that the plaintiff recover from said defendants the sum of $889.99 with interest thereon from this date at the rate of six per cent per annum together with the costs of this cause and have therefór execution.

This contention is equally untenable, for the reason that this court in the case of McDonald v. Frost, 99 Mo. 48, said: “In event of doubt regarding the exact meaning of a judgment or decree, it is permissible to consider‘the antecedent record in determining its effect.” Continuing the court said: “As that action was collateral to.the present one, any mere error or irregularity in the former would not affect its validity.”

In Moody v. Deutsch, 85 Mo. l. c. 244, the court said: “A judgment will be held sufficient when it appears to have been intended by some competent tribunal as the determination of the rights of the parties to the action, and shows in intelligible language the relief granted.”

In Farley Bros. v. Camman, 43 Mo. App. l. c. 174, the court said: “But we now test judgments by matters of substance rather than by the measure of any particular draft or form. ’ ’

In Pickering v. Templeton, 2 Mo. App. l. c. 430, quoting from Maxwell v. Stewart, 22. Wall. (U. S.) 79, the court said: “To make . . . a record valid upon its face, it is only necessary for it to appear that the court had jurisdiction of the subject-matter of the action and the parties, and that a judgment had in fact been rendered. All else is form only.”

In Black v. Rogers, 75 Mo. l. c. 448, the court said: “The judgment entered upon the compromise, agreement, though neither formal nor full,' was of like binding force on the parties thereto, when rendered, as any other judgment; and no appeal was taken therefrom, or motion.or application of any sort' made to set that judgment aside, though court remained in session .... But no such steps were taken, and in consequence thereof, all the matters then controverted must be regarded as res ad judicata, and therefore no longer open to re-agitation. ’

In State ex rel. v. Hunter, 98 Mo. l. c. 390, the court said: “The judgment may not possess that-symmetry of form and expression which precludes the possibility of challenge, but we think it sufficient to meet the substantial demands of the law. ’ ’

If we test the validity of the judgment in question according to the foregoing adjudications, it would seem that there is no escape from the conclusion that while it is informal, it is nevertheless valid. The judgment upon its face shows who were the parties plaintiff, for whom and against what property the lien was adjudged. And if we consider this judgment in connection with the antecedent entries of the record in the case, as is authorized in the case of McDonald v. Frost, supra, then it would clearly appear that the judgment there related to the defendants, the appellhnts here.

Independent of the foregoing observations, the plaintiff in that suit was not entitled to a personal judgment against the defendants therein, for the .reason that the suit was for the enforcement of a lien for city taxes against the lot in question, and the defendants were parties thereto only because they were supposed to have had some interest in the land; and the judgment rendered was against the land, to be discharged by the payment of so much money, and it showed upon its face against what property the special execution should have issued. So under the pleadings and service had against the complaining defendants and law applicable thereto, no judgment could have been rendered against them authorizing the issuance of an execution against any other, and a personal judgment against them would have been erroneous.

In discussing this question the court, in the case of Seibert v. Allen, 61 Mo. l. c. 488, in speaking through Judge Hough, said: “If is not easy to determine, in the present state of the law, precisely what importance is to be attached to the ownership of the property charged, in a proceeding like this. No direct adjudication is required as to ownership, and if any were made it would most certainly be of no binding force upon those who were neither parties nor privies to the record; and yet a personal defendant seems to be necessary, though under the law no judgment can be rendered against him. As to the verdicts complained of, we have no hesitation in holding them to be sufficient to support the judgment.”

And in the City of Kansas v. Railroad, 77 Mo. l. c. 186, Judge Norton, in discussing the same question, said: “Besides this, the statute under which this suit is prosecuted authorizes parties having an interest in the property at the commencement of the suit to be made parties, and if defendant corporation had no interest in the property sought to be charged, it was not a proper party, and advantage should have been taken of it by answer, if any personal judgment was or could have been rendered against defendant corporation, it might be in a position to complain of any error committed, but as no such judgment was of could be rendered, we are at a loss to perceive how any error committed could affect the defendant if it had no interest in tiie property sought to be subjected to sale.”

And Judge Rombauer, in Syenite Granite Co. v. Bobb, 37 Mo. App. l. c. 486, in speaking for the court, said: “In St. Louis v. Allen, 53 Mo. 50, the court decided squarely that a personal judgment in this class of cases was unconstitutional and void, yet, upon the second appeal of the ease, affirmed a judgment against the property alone, which was entered upon a general verdict, although there was no express statutory warrant for such proceeding. [Seibert v. Allen, 61 Mo. 482, 489.]”

The same doctrine was announced in the case of City of Louisiana v. Miller, 66 Mo. 467. And in Milner v. Shipley, 94 Mo. 106, and Carr v. Lewis Coal Co., 96 Mo. 149, it is held that a personal judgment in a tax suit could not he rendered against the owner of the property even when there was personal service; and that a sale under a valid judgment in such cases transfers to the purchaser only the title and interest of the defendant to the suit.

We have also held that the names of the parties to the judgment should appear in full, but where they do not it may be corrected on motion; and as the defect does not go to the substantial rights of the parties, the judgment should not for that reason be reversed. [Casler v. Chase, 160 Mo. 418.]

And Freeman on Judgments (4 Ed.), sec. 47, says that a judgment will be held sufficient ‘ ‘if it appears to have been intended by some competent tribunal as the determination of the rights of the parties to an action, and shows in intelligible language the relief granted.”

Section 71 of the charter of Kansas City, then in force, provided that in suits for all real estate taxes it is only necessary to make parties defendant those who have an interest in the land at the commencement of the suit to enforce the lien; and it also provides that a sale under special execution issued on the judgment conveys all right, title and interest of all who are made parties to the action. And section 72 of the same charter, regarding the form of the judgment, provides: that, the judgment, if for plaintiff, shall be that the plaintiff recover the amount found due and costs of suit, to be levied of tlie real estate against which the tax is charged. There can be no question but what the judgment of March 23, 1905’, conforms substantially to the provisions of those sections of the charter. That is all that the law requires, as has been so frequently announced by this court; Technical defects and immaterial irregularities are disregarded by the courts, as is shown by the numerous authorities previously quoted from.

Entertaining these views, we have no hesitancy m holding that the judgment in question was not invalid for the reasons assigned by counsel for appellants under this paragraph of the opinion.

III. The third contention made by counsel for appellants is that the judgment of March 23, 1904, is not a final judgment, and for that reason the sale under the special execution based thereon was absolutely void, and conveyed no title to respondent. This contention is predicated upon the fact that the petition in that cause contained two counts. The first was in ejectment, and the second was for the recovery of the taxes paid to the sheriff by the plaintiff in case the tax deed should be adjudged invalid. A trial was had on the first count December 9,1902, which resulted in a verdict and judgment in favor of defendants therein, holding said deed to be void. Said judgment was as follows:

December 9, 1902; Now on this day again come the parties and the jury herein pursuant to the order of the court and the trial of this cause is proceeded with and after hearing the evidence introduced by the plaintiff, the jury under the instructions of the court returns to the court the following verdict, to-wit: “We, the jury, find the issues for defendants on the first count of plaintiff’s petition. Geo. Rolles, foreman.” It is therefore ordered and adjudged by the court that plaintiff take nothing by the first count of her petition and that defendant go hence discharged of the first count of plaintiff’s petition without day, and plaintiff now files motion’ to be permitted to file an amended petition making the heirs of Wilhelmina Kiene, deceased, parties defendant, and said motion is taken up, fully heard and bonsidered and is by the court sustained, and defendants except to the ruling of the court, and the court now discharges the jury from any further consideration of this cause and continues the cause until the next regular term of this court at plaintiff’s costs. It is therefore ordered and adjudged by the court that plaintiff pay all costs herein incurred at this ' October term, 1902, of this court and that execution issue therefor.

To further develop appellants’ position, it should be stated that they contend that the judgment of March 5,1904, was on both counts of the petition, hut that the judgment of March 23d, the one under which the sale was had, was upon the second count only.

In support of this contention counsel cite section 593, Revised Statutes 1809. This section of the statute relates to the same subject-matter and should be read and considered with sections 694 and 773. The latter two came before Division No. 2 of this court for consideration in the case of Stone v. Perkins, 217 Mo. 586. In construing those sections, Judge Gantt, in speaking for the court, on page 606, said: “A question of practice has suggested itself to us by the forms of the judgments entered on the two counts on different days, but upon consideration we have reached the conclusion that the two entries may be and should be-treated as one final judgment, as our statute, sections 694 and 773, Revised Statutes 1899', clearly indicates should be done before the entry of the final judgment in a cause. Under our code the circuit court can administer both legal and equitable rights- and remedies when necessary in the same civil action, and the trial court is armed with discretionary power to direct separate trials where the nature of the issues on the pleadings require them. So that it would have been better for the court to have simply made its findings on the first count and deferred entering its final judgment until it had also tried the second count and then entered one final judgment as the statute evidently contemplated.”

In the case at bar we are precluded from treating the judgment on the first and second counts as one final judgment, as was done in the case last cited, for the reason that the former was rendered December 9, 1902, while the latter was rendered March 23, 1904, not on the succeeding’ day nor during the same term of court as was done in that case; but at different terms and years apart. So, if that was all there was to this ease, we might be compelled under said sections of the statute to hold that there was no final judgment in the case, but simply an interlocutory judgment upon each count, or perhaps, more correctly speaking, an erroneous final judgment upon each. But without stopping .to decide that question, it should be borne in mind that- under the charter of Kansas City, section 39, article 5, the plaintiff at the time she brought that suit had no such cause of action as was stated in the second count of the petition — that is, a right to sue for and recover back the taxes, with interest and costs paid by her to the sheriff, as the purchase price of the lot. The judgment in favor of the defendants on the first count adjudged the tax deed bad, and that fact gave rise to plaintiff’s right to sue for and recover back the taxes, interest and costs so paid by her to the sheriff. Clearly the suit on the cause of action stated in the second count of the petition was prematurely brought, for, as before stated, it had no existence until the rendition of the judgment on the first count, all of which facts appeared upon the face of the petition. That being true, there was in law and fact but one cause of action stated in the petition, and that was stated in the first count. Consequently, said sections of the statute had no application, and when the court entered judgment thereon it was, therefore, a final judgment within the meaning of 'the Practice Act.

Counsel for plaintiff in that cause evidently realized that the second count did not state a good cause of action, for upon the rendition of the judgment on the first count, t-liey prayed, and the court permitted them, to amend the petition as to the second count, and continued the cause. This was in effect a new suit, and; strictly speaking, the defendants were entitled to sen. vice of process; but that right was subsequently waived, as held in a previous paragraph, by their ap-: pear anee and contesting each and every step in the trial of the cause. [State ex rel. v. Muench, 230 Mo. 236.]

That being true, then it must be held that the judgment of March 23, 1904, was a final and not an interlocutory judgment,- as contended for by counsel for appellants, consequently it was sufficient to sustain the sale made under the special execution. We, therefore”, rule against appellants as to this contention.

3Y. The fourth contention of counsel for appellants is that the execution in the tax suit was void because no certificate of purchase was issued.

I am unable to see in what possible way the failure, of- the sheriff to give to the purchaser a certificate of purchase, even though the law required it, could invalidate the execution under which the sale was had. At most it could only affect the sale and not the execution. But there is no merit in the last suggestion, foi the charter does not require the sheriff to give a certificate of purchase where he sells land on execution based on a judgment enforcing liens for such assessments. Section 59 of article 5 of the charter, 1889; expressly provides that the lien shall be enforced “as in other cases of judgments and decrees of such court.” There is no provision for redemption in such cases and none here after sale.

Counsel for appellants rely upon section 18 of article 9 of the charter. Clearly, it has no application to this case. By express terms that section refers to sales made for special assessments.

Section 72, heretofore considered in reference to the form of the judgment, not only provides for the form of the execution and sale thereunder, but, also, expressly says, “And the sale under such judgment and execution shall be absolute and free from redemption.”

This insistence is, therefore, also without merit.

' V. Counsel for appellants also assail the validity of the judgment of March 23, 1905', for the reason that the petition was amended after the publication of the order to the non-resident defendants.

Whatever merit there might have been in this contention was waived by the actual appearance of all the defendants, residents and non-residents, in court, and participating in the various steps taken in the trial of that cause.

VI. Nor is there any merit in appellants’ last contention, namely, that the tax deed was void because the sheriff’s report of sale recites that Bryce Smith was the best and highest bidder, but that the lot was. sold to B. Howard Smith; that a certificate of purchase was given to Bryce; and that the land not having been redeemed, as provided by law, the sheriff, on December 29, 1902, executed and delivered a deed to said Bryce Smith.

It is manifest from counsel’s own showing that the recital of the sheriff’s Report of sale, that the lot was sold to B. Howard Smith, was a clerical error, and should be disregarded. Bryce Smith was the highest bidder, and the lot was sold and conveyed to him by the sheriff.

In addition, respondent’s title is good independent of the deed made to B. Howard Smith based upon the judgment and execution in the case of Barber Asphalt Paving Co. v. Kiene et al. The last deed covers only a part of the property which was covered in full by the sheriff’s deed, hereinbefore mentioned, and which was based upon the Hartmann-Kiene judgment.

VH. Counsel for respondent contends that even though it should be conceded that each and every one of appellants’ contentions were well taken, yet they can avail them nothing in this suit, for the reason that they had the opportunity to raise, and did raise, in the original case, each and every point here presented; and having had the judgment of the court thereon, and having filed motions for a new trial and in arrest of judgment, and motion to quash the execution issued thereon, which were overruled, and appeal taken and allowed to this court, hut not perfected, cannot here in a collateral proceeding have another hearing of the same, matters.

As previously held, the court, in the original suit, had jurisdiction of both the persons of the appellants here and the subject-matter of the suit. Appellants not only could have raised in that case all of the questions here presented, but the record discloses the facts that they were in fact made and were adjudicated in that case. Under the decisions of this court there can be no question but what this cause is barred by the adjudication had in the original case.

In Shelbina Hotel Association v. Parker, 58 Mo. l. c. 329, Judge Sherwood said: “After the numerous adjudications on this point, it ought to be regarded as settled, that where a party to an action, being fully apprised of his rights, suffers judgment to go against him, when he might, by the exercise of reasonable diligence in making his defense, prevent a recovery of the amount claimed, either in whole or in part, he should not be allowed in a subsequent proceeding to re-agitate questions, which either were, or else would have been, adjudicated at the former trial, but for his inexcusable neglect. . . . Again ... a fault equally fatal to plaintiff’s case is met in the undenied statements of defendant’s answer . . . showing that the motion of the plaintiff to modify the award with regard to the mistake on which the present suit is based, and the motion of defendant to confirm the award, being heard together, the former motion was overruled, and the latter sustained, and a judgment of confirmation entered accordingly; and that the same was in full force. It thus stands admitted of record that the very point in controversy, and between the same parties, had received adjudication in a former action, the validity of the judgment then rendered remaining unquestioned. ’ ’

In Yates v. Johnson, 87 Mo. l. c. 217, the court in speaking through Black, J., said: “It is enough to say that the court had jurisdiction of . . . the entire subject-matter. The judgment did determine the plaintiff’s rights, . . . and the order of sale was so framed as to give the purchaser a title. . . . No objections by answer, or otherwise, were made to that disposition of the mortgage. The mortgagee could have appealed or prosecuted a writ of error after the final order of distribution, if not satisfied with the disposition of the cause. This has not been done. The judgment cannot be questioned in this collateral proceeding.” [Rosenheim v. Hartsock, 90 Mo. 357; Martin v. McLean, 49 Mo. 361; McClellan v. Railroads, 103 Mo. l. c. 310; Holt County v. Cannon, 114 Mo. 514; Hope v. Blair, 105 Mo. 85.]

‘ ‘ If after the rendition of a judgment by 'a court of competent jurisdiction, and after the period has elapsed when it becomes irreversible for error, another court may in another suit inquire into irregularities or errors in' such judgment, there would be no end tp litigation and no fixed established rights.” .

In Beckner v. McLinn, 107 Mo. l. c. 288, Judge Gantt, for the court, said: " Moreover, the defendant, Mary A. Byers, before any final judgment of partition had been rendered in the cause, and while the decree was as yet only interlocutory, appeared by her counsel in the partition suit. . . . Her claim was not that the court had no jurisdiction over her, or the subject-matter of the suit. . . . She was accorded a hearing on the merits, and that issue decided against her. The decision was made by a court having jurisdiction both of the person and subject-matter. From that judgment she took no appeal or other proceeding to reverse it. It is binding upon her and all others who were parties to that proceeding.” [Holladay v. Langford, 87 Mo. 577; Bobb v. Graham, 89 Mo. 200; Hart v. Steedman, 98 Mo. 452.]

In Kane v. McCown, 55 Mo. l. c. 200, Judge Napton, in speaking for the court, said: ‘‘ When the record shows a finding of the court, that there has been a legal order of publication, and a publication made in pursuance of such order, it is not apparent how this finding . . . can be attacked collaterally any more than any other conclusion of the court in the course of its proceeding to final judgment. The opinion on the sufficiency of the order of publication may be entirely wrong, reversible on review, but the error does not vitiate, the title acquired under the judgment. In the language of Mr. Justice Miller in Cooper v. Reynolds, 10 Wall. 321, to hold such judgments, sales and deeds void would be ‘to overturn the uniform course of decision in this court, to unsettle titles to vast amounts of property, long held in reliance on those decisions, and ... to sacrifice sound principle to barren technicalities.’ ”

We are, therefore, of the opinion, that the judgment should be affirmed; and it is so ordered.

All concur.


source: Caselaw Access Project

author: LAMM, P. J.

license: Public Domain

text:
    SARAH E. COLE v. CHARLES E. COLE and ALPHA COLE, Appellants.
    Division One,
    November 30, 1910.
    1. FRAUDULENT CONVEYANCE: To Hinder Creditors. A conveyance by a husband, in business and embarrassed, of his lands to his wife, made to hinder and delay his creditors, by which he is rendered insolvent, is fraudulent as to all such creditors, unless 'she is at the time a bona fide creditor.
    2. -: -: Preferring Wife. A wife may freely contract with her husband, and if his debt to her is bona fide, he may prefer her above all other creditors, and secure her to the exclusion of all of them, existent or subsequent, notwithstanding she may know of his indebtedness, may know that the conveyance will render him insolvent, and may know that it will hinder them and that its intention is to hinder and delay them. But- she must not become a party 'to his fraudulent intent by participating in it, for then the conveyance to her will be set aside.
    3. -: Discovery of Fraud: Between Husband and Wife. The marital relation affords a convenient cover for fraudulent property transactions between husband and wife; and therefore, where a conveyance by him to her is charged to be fraudulent as to his other creditors, and is claimed by the pair to have been made in payment of a valid debt due her from him, the courts will closely eye such transactions to see they do not hide and consummate fraud, but not so closely as to brand with condemnation the duty of a husband to be just to his wife, or to dam up a natural and proper flow of marital affection.
    4. -: -: Facts to Prove Fraud and Bona Fide Debt. The wife and husband both testified that the deed by both to his brother and by the brother to her was made in payment of her money he had used in his business and otherwise. He was then insolvent, and neither could • remember the amount, date or particular use to which was put the money he received from her. Rel-d, that the fact that no note, memorandum, check, book or bank account was produced in evidence; that both admitted to the brother and others that the purpose of making the conveyance was to defeat or delay his other creditors; that the deed to the brother was promptly recorded, but the deed from the brother to her was not, but kept in a drawer for two years in their residence and then disappeared; that she borrowed money on the property, after the conveyance, to pay some of his judgment creditors, and part of the loan went into his pocket, thereby in effect admitting she was seized to hia' use; that she made no demand for the deed, did not request payment, and the conveyance was his own spontaneous act; that the value of the property was seemingly in excess of the debt; and that, by subsequent acts of indorsement, she assisted him in what was intended to be a fraud upon subsequent creditors, will all be considered together as establishing her participation in the fraud, and the conveyance will be set aside.
    5. -: Failure to Record Deed. Recording a deed from the husband and wife to his brother and failure to record the deed from the brother to her, both made to defraud his other creditors, while not controlling evidence of her participation in the fraud, are not without significance, when the husband was insolvent and the purpose of the conveyance was to delay or defeat his other creditors.
    6. --: Intent for Future. Where an element of purpose in a fraudulent scheme is to continue the insolvent debtor in business, a conveyance contracted to screen property from both existing and subsequent creditors is void. And evidence to show an intent to hinder and delay subsequent creditors, is competent to show actual fraud to existing creditors was intended by the conveyance.
    7. -: Subsequent Creditors. Actual fraud, or fraud in fact, must be proved 'in order to authorize the setting aside of a prior voluntary conveyance at the suit of subsequent creditors. But hard-and-fast rules of what constitutes fraud cannot be inflexibly fixed, and, therefore, the circumstances attending the conveyance which point to actual fraud are to be considered; and if they show the grantee participated in the grantor’s fraudulent purpose, the conveyance will be set aside as to subsequent creditors.
    Appeal from St. Francois Circuit Court. — Ron. Chas. A. Killian, Judge.
    Reversed and remanded (with directions).

      Edward A. Rosier for appellants.
    (1) The petition, as shown by the answer and by' the proof adduced by the plaintiff, showed that there was a defect of the parties in interest, and until all parties in interest were brought into court no judgment could be rendered. R. S. 1899', secs. 543, 544 and 650. (2) No disclaimer having been filed by Addie F. Cole and Robert- J. Cole, who obtained an interest in said premises by the very same deed under which plaintiff asserts her interest, they were necessary parties. Garrison v. Frasier, 165 Mo. 40. (3) A conveyance made for the express purpose of putting all the property of the grantor beyond the reach of creditors and thus avoiding the payment of debts, the grantee participating in such purpose, renders the conveyance void against existing and subsequent creditors. Snyder v. Free, 114 Mo. 360; Bracken v. Milner, 99 Mo. App. 191; Johnson v. Murphy, 180 Mo. 612; Payne v. Stanton, 59 Mo. 160; Boatmen’s Bank v. Overall, 90 Mo. 410; Boatmen’s Bank v. Overall, 16 Mo. App. 510; Landers v. Ziehr, 150’ Mo. 403; Bank v. Simpson, 152 Mo. 638; Mutual Life Ins. Co. v. Sandfeller, 9 Mo. App. 289; Pawley v. Vogel, 42 Mo. 303; Kinealy v. Macklin, 89 Mo. 441; Hoffman v. Nolte, 127 Mo. 120; Fisher v. Lewis, 69 Mo. 632; Frank v. Caruthers, 108 Mo. 574; Lackland v. Smith, 5' Mo. App. 164. (4) The evidence showing that Sarah E. Cole was a knowing party to the conveyance to tie up or hide the property of her husband, the very disjointed evidence of payment of past indebtedness should be disregarded. Hoffman v. Nolte, 127 Mo. 120; Balz v. Nelson, 171 Mo. 682. (5) The evidence demonstrates that Sarah E. Cole was a party to the fraud, hence this court cannot consider any debts due from the husband to the wife. Jones v. Hogan, 135 Mo. App. 347; Balz v. Nelson, 171 Mo. 682; Bank v. Winn, 132 Mo. 87; Riley v. Vaughn, 116 Mo. 176; Sexton v. Anderson, 95 Mo. 379; Farwell-v. Meyer, 67 Mo. App. 566; Gruner v. Scholz, 154 Mo. 415. (6) The grantee can acquire no title where such grantee participates with the grantor in the design to cover up the property of the grantor. Shelly v. Booth, 73 Mo. 77; Ryan v. Young, 79 Mo. 30; Balz v. Nelson, 171 Mo. 682. (7) The grantor having no other property, and being then insolvent, a voluntary conveyance by him is fraudulent. Scliarff v. McGaugli, 205 Mo. 364; Benne v. Schnecko, 100 Mo. 256. (8) The conveyances in this case being voluntary and for the express purpose of putting property out of the reach of creditors, both existing and subsequent, and being participated in by the grantee, must be held null and void. Snydér v. Free, 114 Mo. 360; Pawley v. Vogel, 42 Mo. 303; Payne'v. Stanton, 59 Mo. 160 ; Bracken v. Milner, 99 Mo. App. 191; Loehr v. Murphy, 45 Mo. App. 524. (9) The facts in this case show fraud in fact participated in by both grantors and grantees, and hence do not come under the' rule laid down in the cases of which the following are the leading ones: Bayha v. Kessler, 79 Mo. 555; Krueger v. Vorhauer, 164 Mo. 156. (10) A voluntary conveyance by a husband to his wife will be closely scrutinized when the same comes in conflict with creditors. Holloway v. Holloway, 103 Mo. 282; Scliarff v. Me Gough, 205 Mo-. 344.

      Pipkin & Swink for respondent.
    There was no defect of parties in interest. Huff v. Land & Imp. Co., 157 Mo. 65; Garrison v. Fraser, 165 Mo. 40. The doctrine is well settled that a voluntary conveyance by a person in debt is not, as to subsequent creditors, fraudulent per se. Payne v. Stanton, 59 Mo. 159; Frank v. Caruthers, 108 Mo. 569; Snyder v. Free, 134 Mo. 360; Lander v. Zieln, 150 Mo. 413; Krueger v. Vorhauer, 164 Mo. 156. The evidence shows that S. I. Cole, at the time of execution of the first deed, did uot contemplate engaging in any other business or vocation, hazardous or otherwise. The weight of the evidence shows that Sarah E. Cole did not enter into collusion with her husband to defraud his creditors, hut that said deed was made to recompense her for money advanced to her husband. The trial judge found, as a matter of fact, there was no intent to defraud the execution creditor.
   LAMM, P. J.

Alpha is the sister and Sarah the wife of Samuel I. Cole. Charles is his brother. Averring she has title as owner in fee of an undivided one-sixth of the south half of the northeast quarter, the southeast quarter of the northwest quarter, the east half of the southwest quarter, the west half of the southeast quarter — all in section 16 — and.the north half of the north half of the northwest quarter of section 21, all in township 37, range 4, containing 320 acres, in St. .Francois 'county, Sarah sues Alpha and Charles to quiet title under section 650, Revised. Statutes 1890 (now sec. 2535, R. S. 1909, as amended), alleging that the remaining undivided five-sixth interest is not in dispute, that she has no interest therein, that defendants claim adversely to her said estate in said undivided one-sixth, she prays the court to ascertain and determine her title and that of defendants respectively therein.

Alpha answers separately. Her defense is a misjoinder of the parties defendant in that Robert I. and Addie F. Cole are necessary parties as owners of an un-. divided fee-simple interest in the real estate — they being in joint possession and enjoying rents and income with Alpha and her codefendant, Charles; that no judgment can be entered determining -the interest of plaintiff that will not affect theirs in each and every undivided portion thereof; that Robert and Addie acquired their interest by a deed, dated Mav 12. 1807. recorded in a certain named hook and page of the land records of St. Francois.

Her further answer, by way of affirmative matter and second defense, is that plaintiff claims under a conveyance from defendant, Charles; that such conveyance was a covinous contrivance, a part of a fraudulent scheme concocted by plaintiff and her husband, intended to hinder, delay and defraud his existing and subsequent creditors ; that he was insolvent on the 10th of January 1895', prior thereto and ever since that time, owing sundry specified debts, and owning no other property, except his then interest in the said land, descended to him by inheritance from his deceased mother, Mary; that, being such owner and so indebted, he conspired and confederated with his wife with the intent aforesaid; that in pursuance and furtherance of such conspiracy, they persuaded Charles to join therein, as the conduit through which the husband’s said title should pass to plaintiff, thereby putting it out of the reach of present or subsequent creditors on legal process to collect debts then existing or thereafter .contracted; that on the 10th of'January, 1895, in view of the scheme so concocted, Samuel and plaintiff, without consideration and fraudulently, conveyed to Charles, with the understanding then had that he would hold the property for the benefit of Samuel, and at some convenient future season, in pursuance of the fraud so contrived, would convey to plaintiff. Charles was persuaded, by the solicitations and entreaties of grantors in said deed, to accept such conveyance to him for the fraudulent purpose named, and afterwards he, to further consummate such purpose, purchased the entire title to the land at the sheriff’s sale, made in partition between the heirs of said Mary Cole, and presently executed and delivered a deed of date of May 12,1897, purporting to convey to plaintiff an undivided one-sixth, which deed was voluntary, without consideration, fraudulent, and made fo,r the sole purpose of furthering the fraud by placing Samuel’s title in his wife,, with the intent thereby to hinder, delay and defraud his existing and subsequent creditors; that plaintiff was fully cognizant of the fraud as a party to the conspiracy, well knowing that her husband was insolvent and owned no other property; and that afterwards defendant, Alpha, became the owner of Samuel’s said interest : through a sheriff’s deed under an execution levied thereon, which deed was executed on August 11, 1903, and put of record. Wherefore, she prays said several fraudulent conveyances he declared void and of no account, and that Samuel’s title be determined to have passed to her through her sheriff’s deed.

For a third defense Alpha pleads substantially the same facts elaborated in her second defense and avers the deeds from Samuel and plaintiff to Charles, and from Charles to Plaintiff, purporting to convey Samuel ’s interest, were fraudulent contrivances intended to hinder and delay present and subsequent creditors, and were executed and spread of record to that end, are a cloud upon the title and interest of Alpha, so acquired through her sheriff’s deed, and should be cancelled and annulled to remove it. For such, and all other meet and proper relief, she prays, averring that Sarah has no title or interest whatever.

The separate answer of Charles pleads the same misjoinder of parties defendant and in interest set up in Alpha’s answer, denies plaintiff has any legal or equitable right in the land and asserts that the disputed interest is the property of his codefendant, Alpha.

A conventional reply was filed

The case made is this: Plaintiff, given the opening and close over objection made and exception saved, introduced a warranty deed, dated May' 12, 1897, from Charles E. Cole and wife to Alpha, Sarah E. (wife of Samuel), Robert I. and Addie F. Cole, consideration $1500, conveying to them an undivided two-thirds interest in the land described in the petition, share and share alike, subject to a deed of trust, dated four days prior, securing $1925 to one McCormack, and rested.

Thereupon defendants asked an instruction, viz., that a defect of parties defendant appearing, the case must abate until they (Robert I. and Addie F. Cole) are brought in. On its refusal, defendants introduced deeds, judgments and oral testimony to establish the issues on their behalf as follows:

A sheriff’s deed, date August 11, 1903, conveying to Alpha Cole all the right, title, interest and estate of Samuel I. Cole in the land described. It narrates, inter alia, that on September 18, 1901, a transcript judgment was filed in the circuit court of St. Francois in favor of the St. Francois County Bank against Samuel and others for tlie sum of $184.53 and ’ $21.52 damages, upon which execution was issued from the office of the clerk of said court, dated July 15, 1903, levied the same day upon Samuel’s interest and right in the land. After due advertisement his rig’ht and interest was knocked down to Alpha Cole on her bid of $206.05, a sheriff’s deed following, acknowledged and spread of record, on the same day.

A warranty deed, in form, dated January 2, 1895, from Samuel I. Cole and Sarah, his wife, to Charles E. Cole, consideration $1000, conveying an undivided one-ninth interest in the land described, acknowledged on the 10th of that month and spread of record.

It appears sufficiently from admissions and from oral testimony that Mary J. Cole, the mother of Samuel, Charles and Alpha C'ole, was the common source of title, dying intestate, seized of the land and left nine children, each inheriting an undivided one-ninth.

Defendants next put in the judgment and files in a partition proceeding between the heirs of Mary J. Cole, in the St. Francois Circuit Court in 1906. Plaintiff was not a party to that proceeding, but Samuel, her husband, was. The partition decree found and adjudged that Charles had acquired by purchase the interest of Samuel and a sister, Mrs. Boggs, and that, in his own right and as such purchaser, he was the owner of an undivided one-tliird, and the remaining children of an undivided one-ninth each; that the land was not susceptible of partition; that an order of sale be made, etc. In pursuance of a sale made under such order, "on May 11,1897, Charles purchased the land on his bid of $4000 and received a deed in due form.

They next introduced a trust deed on the land from Charles E. Cole, Sarah E. Cole and others to the Missouri Trust Co., securing $3500, put of record, date, September 18, 1899.

Next, a transcript judgment, dated June 30, 1898, in favor of John O. Long and against Samuel I. Cole for $108.

Barring some notes, evidencing indebtedness of Samuel, the foregoin'g is all the record and documentary evidence. The Long judgment was put in as part of the proof tending to show indebtedness and insolvency of Samuel.

Supplementing such record evidence, defendants put in oral testimony, viz.:

By Charles E. Cole, that his brother, Samuel, was insolvent on January 10, 1895', and remained' insolvent from that day to the date of the trial; that he owed named debts on that date and subsequently which he did not and could not pay. (It will serve no necessary purpose to go into the details of this indebtedness, because there is no dispute about the debts or the insolvency of Samuel at the time of the conveyances in question or afterwards.) Witness was surety for Samuel to the amount of $160. In January, 1895', Samuel was in the livery business in Bonne Terre. He owed John Lyons part of the purchase money. Lyons sold the note to the Farmers’ and Miners’ Bank. Samuel came to witness' and explained .that the bank was “pushing” him for the money, that he didn’t have it and on that account he wanted witness to accept a deed to his interest in the land and then reconvey to Sarah, his wife. The next day witness and his wife went to the home of Samuel, in Bonne Terre, and there Sarah and Samuel told him that Samuel “was badly in debt and wanted to get the land out of his hands so that the Farmers’ and Miners’ Bank and John O'. Long couldn’t get his land. ” As a result of the interview it was arranged they should execute a deed to Charles and thereupon he should reconvey back to Sarah. So said, •so done. Those deeds were executed on the same day and as part of the same transaction. (Note: The deed to Charles was recorded; but the reconveyance to Sarah, though delivered, was not. It was left with her, kept in a dresser drawer, disappeared and is unaccounted for.) No consideration passed for either deed. Subsequently, witness brought a partition suit, making Samuel and not Sarah a party. Asked to explain why, his reply was: “Well, she wasn’t supposed to have •nny interest in the land. The public didn’t know she had any interest.” In and about that partition suit and the sale thereunder, witness had a power of attorney from the Cole heirs, including Samuel. Witness bid the land in pursuance of that power of attorney and afterwards was instructed by Samuel as follows: “ You make the land back to my wife. My debts have not been paid, you make my interest over to .her again.” In pursuance of that instruction witness executed the deed introduced by plaintiff. No consideration was paid. Samuel requested the deed to be made, “so that the bank and Long couldn’t get anything against him; at that time the bank had secured a judgment' against him.” Sarah understood witness was conveying to her the interest she had formerly conveyed to witness. Afterwards when an attempt was made to get Sarah to sign a deed of trust and “secure some money to change the deed of trust from the Missouri Trust Co.” “she said she had no interest init and would do whatever Irve (her husband) wanted her to..... She made, that same statement in the presence of Mr. Marbury, when Marbury went to take the acknowledgment of the deed of trust.” While witness held title he held it for the benefit of Samuel — “in trust for him.” Witness, surety for Samuel on some of his outstanding notes, had them to pay. The Farmers’ and Miners’ Bank of Bonne Terre brought suit on its note and recovered judgment in the 'November following the conveyance by plaintiff and her husband to witness.

On cross-examination, witness disclaimed any interest or title to that part of the land in dispute. It belongs to his sister, Alpha. At the time of the conveyance in January, 1895, Alpha was Samuel’s creditor. Shortly thereafter, in a day or two, she came down to get her money. Samuel told her he didn’t make the deed “to beat her; I only did it to beat the Farmers’ and Miners’ Bank.” Alpha knew that Samuel was insolvent. Samuel at the time of his marriage (in 1894), was in the livery business. He went out of that and into the saloon business. Did not know whether Samuel was doing business on his wife’s money. Samuel did not state- that the consideration moving in the conveyances to his wife was money he had used of hers. Witness had never seen the (first) deed he made to Sarah since it was delivered. Found out afterwards it was not of record. Samuel told him the reason he didn’t want it put on record was, “He didn’t want the creditors to know the land was transferred back to his wife.” Inquired of when the debt was contracted, . afterwards merged into the judgment under which the land was sold to Alpha, witness said he didn’t know of the day of the month but it was about two years prior to the time it was sold. (Note: This would make the date of the indebtedness about 1901.) In and about the purchase at the sheriff’s sale, witness was the agent of his sister, Alpha, and bid for her. He had examined the records before that to see whether the deeds had been placed on record. In further explaining why Sarah was not made a party to the partition suit, witness said it was because Samuel said the deed was never placed on record, “He put the title in me to hold for him,” and he didn’t Want creditors to know it had been retransferred to his wife.

By Benjamin H. Marbury, tbe prosecuting attorney of tbe county, defendants showed that two or three years before the trial (the'trial was in 1904) he represented Samuel and Charles Cole in trying to borrow some money on the land in question. They wanted witness to secure a loan to pay a mortgage then on the land (presumably, the McCormack mortgage), and to pay some outstanding debts “against S. I. Cole’s property.” Witness got an abstract and found a judgment against Samuel. The trust company (presumably, The Missouri Trust Co., afterwards making the loan) refused to loan the money until the indebtedness and judgment were paid. Witness went with Samuel tó see his wife and talk with her about it. The substance of the conversation was that Charles Cole had conveyed back Samuel’s interest to his wife for the purpose,of keeping the property from being sold on account of debts and judgments against Samuel. Afterwards, when the money was borrowed, some of Samuel’s debts and judgments were paid out of the loan; for a certain indebtedness Samuel owed Charles, independent of the amount settled, a deed of trust securing him was to be given, in which Sarah was to join. Samuel I. Cole received in cash some of the loan. If we understand it, the negotiation resulted in the mortgage loan made by the Missouri Trust Company, and that Sarah joined in that mortgage. On cross-examination, this witness reiterated his statement that before the loan could be made he talked with the plaintiff and that her consent was obtained that she, with the other Coles, would join in the deed of trust, and before the money would pass certain of Samuel’s debts were to be paid. Plaintiff did not vant to sign the note on those conditions, but finally did sign it.

Defendant Alpha testified in substance that she' knew Samuel was considerably in debt; he owed her and never paid her: her debt was paid afterwards by Charles, and Samuel never repaid him. She remembered the partition suit of the old homestead and of purchasing the interest of Samuel at execution sale. She directed Charles to hid it in for her and she is in possession now under the sheriff’s' deed then received. Samuel’s financial condition never improved after 1895, he continued in debt. After Samuel made the (first) conveyance to Charles, the next day or the day after, she went to see him, talked with him in the presence of Sarah. Samuel then told her, “He hadn’t put the land out of his hands to keep me from getting anything, but'to keep the others.” He didn’t name the others. Sarah was close by; “they were all standing right close together in the kitchen by the table.” On cross-examination she said there was nothing said there about Samuel owing his wife and she knew nothing about that. At that time Samuel was in the livery business, afterwards ran a saloon. He stayed in the livery business some two or three years. Witness did not know whether he anticipated going into any other business. He said nothing about that. Samuel did not S'fty there that his object was to beat those from whom he got money afterwards. She knew nothing about her brother using $1000 of his wife’s money. In that conversation Samuel said, “He didn’t want those people ■coming from the city to get this. He was owing some money at the city for rigs.” He told her he was not trying “to beat her,’’"but he put the “land out of his hands to keep people from taking this land.” Witness lived in Washington county. Inquired of about the value of the land, she said she supposed it could be sold for “$35 or $50 an acre, about $55,-I guess.” It lies about a mile or two from Bonne Terre, perhaps a mile from the shafts of the Bonne Terre mines.'

After the immaterial testimony of J. H. Lyons, defendants introduced the record of a judgment in favor of the Farmers’ and Miners’ Bank against Samuel for $332.50, dated November 19, 1895. (This judgment seems to be for tbe purchase money of the livery stable from Lyons in 1894, the note evidencing it having been transferred to said bank, and it is the same note on which payment was being “pushed” when the first deeds were made.)

To sustain the issues on her part, plaintiff took the stand, testifying in substance as follows: She married Samuel Cole in 1894. Was then the widow of Alex Rairden. “Q. Will yon state to this court what money, notes, property and effects you brought to the marriage altar? ... A. Something over, I guess, $1000,1 don’t remember just exactly.” Inquired what became ‘ ‘ of that money ’ ’ she replied: ‘ Cole got away with it, some way, I couldn’t state just how.” “He got. it;” she either “let him have it or he got it some way. ’ ’ Asked what indebtedness or money was owing her from her husband in January, 1895, on the day they made a deed to Charles, and Charles and his wife made a deed to her, she replied; “All he ever got from me he still owes me.” Then followed these questions and answers: “Q. How much was that? A. Of course, I don’t know how much money, and all my stock, what I had, he had gotten away with some of that. Q. How muda did it amount to, about, that he was owing you at that time? A. I don’t know just how much. Q. Yoaa can’t approximate it? A. I don’t know how much we had left after that, I don’t remember.” The deed was made to make good what money and property he got from her, to pay what he owed her. She denied entering into any conspiracy with her husband to defraud his creditors by hindering or delaying them. There was “never a word between us” relating to that. Witness didn’t think she knew about his debts at that time. She remembered, however, she was on one or two of his notes. The deed from Charles to her (the one made in 1895) was put in the dresser drawer and when Mr. Cole went away from home she never saw it any more. (Note: Other testimony shows that Samuel was not living with. Sarah at the time of the-trial.) She disclaimed knowing anything about the deed made to her by Charles after the partition suit. She didn’t remember it. On cross-examination- she testified she didn’t remember how much her husband was indebted to her in January, 1895; did not know he was. largely indebted (to others), she remembered signing a note for her -husband to Alpha Cole in 1894. She signed it “to please him, to get her to wait on him.” He didn’t ask her to pay anything on it and she didn’t sign it with the intention of having to pay it. She didn’t know whether she was surety on a $250 note in the bank at Bonne Terre; she remembered an old Obert note for $150, she signed that the same as ,she did the other, viz,,on the theory that he would pay it after awhile and she would not be called on for a cent. He asked her to sign it to keep Obert from pushing him. She remembered of no property that her husband owned but his interest in the homestead. Asked, pointedly if she had ■any conversation with Charles Cole and his wife before they made the deed, her reply was that her husband had never said a word about it; that she was in bed sick that day, her husband had proposed to make a deed to his brother and that he would transfer it back to her. Her husband said it wouldn’t be lawful for him to make the deed. . “He made it to me for what he had spent of min&.” The foregoing testimony was given in response to the question, “Now, Mrs. Cole, how did this deed come to be made?” She further testified that she signed notes for her husband after he had spent her money to keep people from pushing him, that her husband never gave her a note or any evidence of indebtedness. She remembered specifically one item of $253.50 that her husband got from her on the street and was to put in the bank in her name, but put it in in his own name. Her husband lived on her property while it lasted. “It was spent about all for himself.” She couldn’t say whether he was an industrious money making man. She “supposed he earned a little hit to support the family.” “Q. He spent what he got from you for the remainder? A. No, sir. He didn’t spend my money for living. Q. How did he live, then? A. He didn’t live very much.” She reiterated that she had no recollection of getting any other deed from Charles but the first one. She “was claiming it (the land) from that deed, given me to make me good for my money.” She had no knowledge of any other deed. She paid Charles nothing in consideration of any deed.

Samuel I. Cole testified in behalf of plaintiff, in substance that he owed his wife in 1895, at the time the deeds were made; that he made the deed to pay the debt; lie denied entering into any conspiracy with his wife or Charles to delay, cheat or defraud his creditors; there were no judgments against him at that time. He was then in the livery business at Bonne Terre and owed a joint note to the Farmers’ and Miners’ Bank for the purchase of the livery stable with his brother-in-la\t, Bogy, who signed the note as joint maker. This note was afterwards paid by a loan from Dr. McCormack, or the Missouri Trust Co. Charles made the deed of trust and took up the note. At the time of the. •conveyances in 1895- witness, in reply to a question whether he contemplated engaging in any hazardous undertaking other than the livery business, said, “No, I don’t know that I was.” Afterwards he borrowed money from the St. Francois County Hank (this was the loan merged into the judgment under which Alpha Cole bought). That loan was made three or four years ago. Witness did not know the date, but his approximation brought it about the year 1900' or 1901. The money was borrowed to go into the restaurant business. In 1895 he had no undertaking like that in view. On cross-examination witness testified that he was not now in any business; had no property producing any income or means of living; was living with his sister, Miss Cole; was paying no board, but was doing work on the farm, marking off corn ground, which was “pretty hard work if you keep things straight.” Inquired of as to his indebtedness of 1895, he testified to various debts, but, as said, his insolvency was admitted, hence the details are of no consequence. He denied making as many debts as he could after the conveyance, but admitted becoming indebted after that time, and remained in debt practically all the time up to the present. He admitted that his wife met him on the street and told him to put $253 in the bank. Witness took the money out of her hands and put in the bank in his own name. That happened some time in 1895, some time in the summer. ■ (Note: The deed to Charles and the reconveyance was in January, 1895.) He “reckoned” he supported his family, but had contributed nothing to their support for the last six months and had been unable to pay his debts. He didn’t remember whether he told Charles why he was making the 1895 conveyances. But he got Charles to agree to reconvey to his wife. Inquired of about the deed made by Charles after the partition suit, he testified that Sarah’s name was put in as one of the grantees by his order. The first deed to Sarah was not put on record because Charles was in some trouble with his wife and he didn’t want the deed to go on record. The first deed was made to his wife to secure Sarah for her money he had used, and the last deed was on the same consideration. No money was paid for either deed. Charles didn’t object to making the last deed as requested by witness. Witness was a party defendant in the partition suit, and when Charles E. Cole bought the premises in for the heirs, witness directed the property to be put in his wife’s name and not to make a deed to him. On re-examination he identified a note made in 1896 by him to the Farmers and Miners Bank for $250, signed by his wife and others as sureties. The last deed to Sarah was made in lieu of the other.

Mr. Young, produced for plaintiff, gave testimony to the effect that he was one of the sureties for Samuel on the note merged in the judgment under which Alpha bought. Witness ordered out the execution. If Samuel Cole had any interest in the land the sureties wanted it sold to save them from paying the judgment. Charles Cole came to town to look up the title. Witness, representing the other sureties, had a talk with him. He told witness that Samuel didn’t have any interest in the land; it had been deeded to his wife, first having been deeded to him and then reconveyed to Samuel’s wife; and that it should be on record. We went to the record and couldn’t find the deed.- “Charley said it ought to be there, but we couldn’t find it on the land records.” Afterwards Charles Cole ran the land up on the sale to the exact amount of the debt and then directed the deed to be made to his sister, Alpha. The levy was made on the theory that Samuel owned one-ninth interest in the land. Witness was instrumental in having the property levied on and sold as Samuel’s.

Such was the testimony.

After taking time to consider, the chancellor entered a decree finding that Samuel conveyed an undivided one-ninth interest on January 2,1895, to defendant, Charles; that afterwards and after the partition sale Charles conveyed a one-sixth interest to Sarah. The decree makes no mention of the unrecorded conveyance made by Charles to the plaintiff, but goes on to find that Charles became the purchaser of all the interest in the land at the partition sale and then conveyed Sarah one-sixth; that Charles paid nothing to Samuel for his deed; that, at the partition sale Charles paid nothing for Samuel’s one-ninth interest; that his conveyance to Sarah thereafter was without consideration and that all these deeds were fraudulent as to Samuel’s then existing creditors; that Samuel was then insolvent and remained so; that defendant Alpha purchased the interest of Samuel in 1903 on an execution sale on a judgment on Samuel’s note to the St. Francois County Bank, given during the year 1900', with personal security; that there was no evidence said debt was contracted on the strength of any interest Samuel had m the property; "and that the deeds, first above, were not fraudulent as to subsequent debts. On such premises it was decreed that Alpha took no title whatever; and that Sarah was the owner in fee of an undivided one-sixth interest, as against both Alpha and Charles.

It is assigned for error, first, that the decree is inequitable and for the wrong party; second, that the chancellor erred in ruling adversely on the contention that a decree could not go unless other necessary parties were brought in; and third, in giving plaintiff the opening and close at the trial.

Attending to the main point, we conclude the decree was for the wrong party. In arriving at such conclusion certain facts and propositions of law may be assumed as so well established as to be put beyond all question on this record, viz.: That Samuel Cole was in business, was embarrassed, was made insolvent by the conveyances of January, 1895, and May, 1897, and left without ability or disposition to pay his then existing debts; that, as to Samuel and as to all his then creditors (besides his wife), he beggared himself by putting all property subject to legal process out of his hands to hinder and delay them, ergo as to them the deeds were fraudulent in fact and law; and that Samuel continued in business, flitting from keeping a livery stable to keeping a tippling-house and then a victualling-house —at all times independently broken and insolvent, contracting debts as formerly and not paying them. He seems a litigious and selieming man, lightly assuming and then throwing off the burden of the yoke of pecuniary obligations.

In the foregoing views the case is so narrowed as to be encompassed by these questions: Did Sarah, his wife, participate in his fraudulent-intent to-hinder and delay existing creditors? We think so. Did Samuel, by the conveyances in question, have the intent to hinder and delay his subsequent creditors? We think so. Did Sarah, his wife, participate in and loan herself to such fraudulent intent? We think so.

In stating grounds for such affirmative answers we shall assume it good doctrine that, under our married woman’s enabling acts, a wife may freely contract with her husband. That, if she be a bona fide creditor, her debt stands on as sure a foot as that of anyone else; he may prefer her since those acts, as before, by securing her debts to the exclusion of others, existing or subsequent, notwithstanding she may have known of his indebtedness and insolvency, notwithstanding she knew that the fact ■ of her preference would have the ultimate effect of hindering and delaying his other creditors, and notwithstanding: the husband intended to hinder and delay his creditors — all this, so long as, and provided always, she keep her hands clean by not participating in and becoming a party to his fraudulent intent. There is thin ice there and one who walks thereon has need of great care.

Fraud is easy to accomplish and hard to prove. It is a sound proposition that, as the marital relation affords a convenient cover for fraudulent property transactions between husband and wife, courts, where fraud is charged as the gist of the action, will closely eye such transactions (when in conflict with the claims of creditors) to see they do not hide and consummate fraud — being always mindful, withal, that judicial zeal to uncover and smite fraud must not be pushed so far as to dam up a natural and proper flow of marital affection or whittle away the duty of a husband to be just to his wife. . To her (as to others) he should live honestly, .should hurt nobody and render everyone his due, thereby observing the great commandment of the law.'

We think the following further observations pertinent to this record and decisive of the case:

(a) . The evidence of the extent, items, date and character of the indebtedness from Samuel Cole to his wife is scant and inconclusive. We set some store on the fact that no note, memorandum or book account, checks or bank account were produced. The principal item of $253' which she gave him on the street to put in the bank to her credit and which he put to his own, was given him in the summer of 1895', long after the first dee*! from Samuel and Sarah to Charles Cole for Samuel’s one-ninth interest in the mother’s homestead and Charles’ reconveyance to her. When it is sought to,sustain a conveyance under such circumstances, a chancellor looks anxiously for corroborative proof, or, failing in that (as here), for those badges of good faith, arising from specification in details, date, amount and other indicia earmarking the ordinary run of business transactions, and making the proof fairly certain.

(b) . But if it were conceded that such indebtedness is established at th'e date of the deeds, yet we are confronted with evidence, practically uncontradicted, that Samuel and Sarah admitted to Charles and Alpha Cole and Mr. Marbury, the prosecuting attorney, that the purpose in making the deeds was to wrest Samuel’s property away from his creditors. The fact of indebtedness from Samuel to his wife rests alone on their testimony. The force of the latter is largely spent in establishing a debt. They deny the conspiracy in general terms, but they do not deny otherwise than faintly and impliedly the conversations proving it. Moreover, there is evidence not contradicted that plaintiff treated the property as her husband’s. She borrowed money on it after the conveyances to pay some of his judgment creditors as well as some at large, and part of the loan went into his pocket. This was but shadowing forth and effectuating the original fraudulent purpose. It was tantamount to an admission that she was seized to Ms use. The situation, smacMng strongly of fraud, vehemently called for full and satisfactory explanation —and explanation we cannot find.

(c) . The failure to record the first conveyance from Charles Cole to plaintiff, while not of controlling, is not entirely without some significance. Samuel’s explanation of this is vague and we may not grasp it. Sarah makes none. She put the deed in a drawer and left it there until it disappeared. The absence of such record certainly concealed the fact that Samuel had conveyed his property to his wife, and for over two years left the public to understand there had been an out-and-out sale to Charles. The latter sale invited less suspicion than the former would have done and was less liable to attack. Obviously, the absence of the record of her deed furthered the fraud.

(d) . Again, some stress is due to the fact that Sarah made no request or demand of her husband for restitution of moneys converted by him or for payment of a debt due from him. The absence of so natural a thing marks the transaction as novel and out of the usual course, thereby challenging attention. Both of them put the conveyances on his sole spontaneous act. A derelict husband, pricked, however tardily, by an awakened conscience, might make restitution to a wife he had wronged without her request or demand. Verily restitution is the beginning of reformation, even as the fear of the Lord is the beginning of wisdom. But there is nothing in this case showing the conscience of tMs husband was awakened or pricked into action.

(e) . Again, when honest conveyances are made to pay debts, there is usually a correspondence in value between the property and the debt — such disproportion as an excessive conveyance is a badge of fraud. In tMs case, absent satisfactory evidence of value, we must take the scant and uncontradicted evidence ye have. That was to the effect that the property was worth $35, $50 or $55 per acre. On the theory that Sarah acquired a sixth interest by her last conveyance from Charles, then the interest was worth at $35 per acre the rise of $1800; at $50 per acre the rise of $2600; at $55 per acre the rise of $2900 — allowing for a mortgage indebtedness. On the other hand there was no attempt to make the debt of Samuel to Sarah so much as a thousand dollars. One thousand dollars covered all her personal property and she did not testify her husband got it all. On the theory that she acquired only a one-ninth interest by the unrecorded deed made in January, 1895-, then the disproportion in value would be appreciably less.

(f). In this connection there is another circumstance tending to throw suspicion on Sarah’s title. At first, recognizing that Samuel had only a one-ninth interest, that interest was conveyed to Charles. All sides agree that simultaneously it was reconveyed to Sarah and the deed delivered. If Sarah was not party to the partition suit two years later, the judgment was not res judicata as to her, her prior acquired title was not affected by that suit. Now, if her first deed was made to pay a debt and she accented it as such payment (as she claims) and, if, after the partition suit, Charles, who assumed to have purchased the whole interest in the land (ignoring the fact that Sarah was not a'party thereto), conveyed to her, on the order of her husband, without any new consideration, a one-sixth interest, he thereby conveyed a one-eighteenth in excess of that covered by the first deed. All sides agree the last deed was made in lieu of the first and on no new consideration. We must conclude, then, that by some unexplained arrangement between the Cole heirs Samuel became entitled to one-eighteenth more than was cast upon him by inheritance from his mother, and that by his order the title thereto was put in his wife. Not only so, but singular as it may seem, Sarah says she knew nothing about such order, or the last conveyanee. In her testimony she puts her claim alone on the first deed, and notwithstanding that, the chancellor decreed her a one-sixth instead of a one-ninth interest.

(g). There is evidence indicating that the wife expected the husband to continue in business and, presumably, contract debts in accordance with his known bent and the usual course of business. Now and then she seems to have gone his surety after January, 1895, though she says she paid and intended to pay nothing on that account. She knew, then, that he was making debts in his business precisely as he made them before, with this difference, that her husband’s property was now screened by the conveyance to her from the hazard of his new enterprises, except in so far as it might be bound through her suretyship. Intent to defraud may be deduced from circumstances tending to prove such intent. In the- nature of things, it is not susceptible of direct proof. There is evidence not only showing that her mind cooperated with his in concocting the original fraud to hinder and delay existing creditors, but there is satisfactory inferential evidence showing the fraud was intended as a continuing one against subsequent creditors. "What was done certainly had that effect and the natural effect of 'that act is presumed to have been intended. If, therefore, it was necessary, on top of actual fraud intended to existing creditors, to show an intent to hinder and delay subsequent creditors, the case is not without evidence to sustain the latter.

Section 2881, Revised Statutes 1909 (formerly Sec. 3398, R. S. 1899), so far as pertinent, reads: “Every conveyance ... of any estate or interest in lands . . . made or contrived with the intent to hinder, delay or defraud creditors of their lawful . . . debts or demands . . . shall be from henceforth deemed and taken, as against said creditors and! purchasers, prior and subsequent, to be clearly and! utterly void. ’'

■ That section has been under exposition often. Fraud assumes such protean shapes, is so detested by the law and can be approached from so many angles,.that courts refuse to define it, or fix hard-and-fast limits to it. It is not strange, therefore, that they have not always been able to hold a uniform and steady voice in applying the same set of principles to every case. But in expounding the section it has been held sound doctrine that actual (as contra-distinguished from constructive) fraud, participated in by both grantor and grantee, will vitiate a conveyance as to subsequent as well as to existing creditors. The words of the statute so run and the reason of the thing points unerringly to that conclusion. No man should be allowed to build a superstructure of rights on a foundation of actual, fraud, for fraud vitiates everything.

Nor can there be any doubt that where an element of the purpose in a fraudulent scheme, as appears to exist here, is to continue in business, a.conveyance- contrived to screen property from not only existing but subsequent creditors, from debts springing from the hazards and incidents of the new enterprise, is void.

The views expressed, within the doctrines of a line of cases, stand on reason and authority. Thus:

In Pawley v. Vogel, 42 Mo. l. c. 303, the court was dealing with subsequent creditors in a case passing judgment on transactions between husband and wife, referring to the transactions thus: “ .... hutas between him and his creditors, prior and subsequent, being attended with badges of fraud, it can be regarded in no other light than as a continuous scheme of fraud upon them.”

In a leading case, often cited, Payne v. Stanton, 59 Mo. l. c. 160, we find this pertinent language as to the effect of actual fraud, borrowed from Chancellor Ej?nt.: “. . . actual fraud, or fraud in fact, must be proved in order to set aside a prior voluntary conveyance at the suit of subsequent creditors. ” The case holds that a voluntary conveyance as to subsequent creditors is not fraudulent per se, “but the question whether it is fraudulent o.r not is to be determined by all the circumstances.” In other words, if the circumstances point to actual fraud, such transaction would open to let in subsequent creditors.

In Shelley v. Boothe, 73 Mo. 77, the issue was between two creditors, one preferred and both then existing. It was ruled that where the creditor preferred participated in the wrong intent of the debtor to hinder and delay other creditors, the debtor’s fraud became the fraud of both..

In Sexton v. Anderson, 95 Mo. 373, it was held that if a preferred creditor “acts in good faith and tabes the money or the property for the sole purpose of saving a bona fide debt,” the transaction will stand. To overthrow it he must participate in the debtor’s fraudulent intent as to other creditors — mere knowledge of it is not sufficient.

In Snyder v. Free, 114 Mo. 360, it was held tnat the statute, quoted above, makes no distinction between subsequent and prior creditors, and that under it subsequent creditors are as much within its protection as prior creditors, the only difference being in the mode and extent of the proof of the fraudulent intent. So long as any of the class of subsequent creditors can show that the intént to hinder and delay related to them, such class is let in to share the benefits of the statute.

Lander v. Ziehr, 150 Mo. 403, was a case of a subsequent creditor. In addressing itself to the question, “What then are the circumstances which would justify a court in holding a conveyance fraudulent as to subsequent creditors!” it was said: “A design or purpose to hinder, delay or defraud those to whom he is about to become indebted, are some of the marked indicia of fraud. In a word, an intent to contract debts and a design to avoid the payment of such debts by the conveyance.”

But it is excess of labor to continue the discussion. The curious and inquiring, inclined to exhaust the matter, may consult such cases as Frank v. Caruthers, 108 Mo. 569; Gruner v. Scholz, 154 Mo. 415; Balz v. Nelson, 171 Mo. l. c. 691; Krueger v. Vorhauer, 164 Mo. l. c. 163 et seq.; Johnson v. Murphy, 180 Mo. l. c. 611 et seq.; Welch v. Mann, 193 Mo. 304; Bracken v. Milner, 99 Mo. App. 187; Loehr v. Murphy, 45 Mo. App. 519.

.The decree in favor of the plaintiff does not accord with the propositions announced, and the facts found to exist. The conclusion reached determines the case without deciding the other assignments of error. The decree is accordingly reversed and the cause is remanded with directions to enter a decree finding the issues in favor of defendant, Alpha Cole, sustaining her conveyance, decreeing title in her, cancelling the conveyances made to Sarah B. Cole by Charles E. Cole and removing the cloud thereof.

All concur.