author: YALLIANT, J.

text:
    WHEELER, Appellant, v. REYNOLDS LAND COMPANY.
    Division One,
    February 22, 1906.
    1. EVIDENCE: Out of Order: Before Close of Plaintiff's Case. It was out of the regular order to permit defendant to introduce evidence tending to show that a patent from the county conveying swamp land to plaintiff was without lawful consideration, immediately after plaintiff had offered the patent in evidence and before he had closed his case in chief, and in strict right that should not have been permitted. But the order of the introduction of proof is largely within the discretion of the trial court, and as it appears on the whole record that no material wrong was done, the judgment will- not he disturbed for that irregularity.
    2. QUIETING TITLE: Character of Suit. A suit under the statute to quiet title is not technically a suit in equity, yet it is designed to determine all the questions, whether of law or equity, relating to the respective titles of the parties, and to put at rest the controversy.
    3. -: Deed: Consideration: Parol Evidence: Parties and Privies: Common Source. The rule that parol evidence it not admissible to entirely defeat a deed, or patent from the county conveying swamp land, does not stand in the way of a person who is in no sense a party or privy to the instrument, and against whom it is produced in a suit (like one to quite title) wherein the validity of the deed itself is open to direct assault, nor in case where both plaintiff and defendant derive title from a common source with no intervening or mesne conveyance.
    4. -: Prima-Facie Showing. A plaintiff in a suit to quiet title is not entitled to a decree declaring that the defendant’s claim of title is invalid until he shows prima facie a valid title in himself, even though the defendant offers no proof of his own title. Plaintiff is not entitled to a decree, even though defendant goes no further than to show that plaintiff’s title is invalid.
    5. -: Patent to Swamp Lands: Invalidity: Suit by County. Hither party to a suit to quiet title to swamp lands, may show that a patent issued by the county to the other is invalid, because not issued in conformity to the statutes. It is not the law that the patent is valid until it is set aside in a suit instituted by the county.

      6. -: -: Consideration: Gift: Common Source. The county is a public trustee of swamp land conveyed by the State to it, and cannot give it away. And where both parties to a suit to quiet title claim under different patents from the county, the defendant may show that plaintiff’s patent, though on its face it recites a valuable consideration, was a mere gift, and therefore void.
    7. -: -: -: -: Undeterminable Contract: Suit for Damages: Compromise. Plaintiff filed his conditional bid with the county court for all the swamp land owned by the county, and a contract was entered into for 57,000 acres “pretended to be conveyed” to a railroad company in 1867 and all other swamp lands not theretofore actually and legally sold by the county, and by a subsequent contract it was agreed that the consummation of the sale was postponed until the titles could be cleared up by judicial determination, but the agreement did not require' either party to bring suit. Afterwards the county court cancelled these contracts, and thereupon plaintiff instituted suit against the county for $50,000 damages, and in settlement of that suit issued to plaintiff a patent for nearly 20,000 acres and returned to him all the money he had paid with interest. Held, first, that the effect of the contract, if it had any legal effect, to postpone its consummation until the titles were judicially determined, was to tie the hands of the county for an indefinite period, if not forever, and hence the court had no authority to make it, even if the court could make an executory contract to convey swamp lands', which is not determined; second, although the patent expressed a consideration of $25,000, it was, under the law, which regards substance and not form, a mere gift, and therefore void; and, third, the compromise of the lawsuit was not a valuable consideration, because the contract was invalid and plaintiff had done nothing under it, and the court could dispose of the lands only as the law authorized.
    Appeal from Howell Circuit Court. — IIon W. N. Evans, Judge.
    Affirmed.
    ■ Albert N. Edwards and Geo. L. Edwards for appellant.
    (1) It was error to permit defendant by .parol or other evidence to attempt to show the patent issued to plaintiff by Butler county was without consideration. ‘ ‘ The general rule in this State is that the consideration clause of a deed is open to explanation; that is to say, that while it is not allowable to show no consideration for the purpose of defeating the operation of the deed as a grant, the true consideration may he shown.” Edwards v. Latimer, 183 Mo. 626. Many cases decided by this court announce the same rule. Furthermore, if on account of facts and circumstances dehors the patent, it is voidable, Butler county alone can take advantage of such defect. And since the patent is regular on its face, and in all respects, on its face at least, conformable to law, it is not void, and if it can be avoided by Butler county even, it can only he done by an appropriate affirmative action for that purpose. Simpson v. Stoddard County, 173 Mo. 458. Defendant’s remedy is to assert its title to the land,, if it has any. (2) Butler county had the power to compromise the suit com-0 menced against it by plaintiff, and to accept in payment of the purchase price of its swamp lands agreed to he sold him by the terms of the compromise, the amount of money owing by the county to plaintiff as a result of the compromise. This being so, the patent for these lands executed by the county to plaintiff is based upon full payment of the purchase price for these lands as it recites, and is therefore valid. Sec. 3422, R. S. 1889 (now sec. 1777, R. S. 18991); Township Board of Education v. Boyd, 58 Mo. 276; Washington County v. Boyd, 64 Mo. 179; Railroad v. Anthony, 73 Mo. 431; Dunklin County v. Chouteau, 120 Mo. 587; Moss v. Kauffman, 131 Mo. 424; State ex rel. v. Adams, 161 Mo. 349; State ex rel v. Butler County, 164 Mo. 214; Morrow v. Pike County, 189 Mo. 610.

      L. F. Binning, Wm. N. Barron and W. M. Williams for respondent.
    (1) Section 8197, Revised Statutes 1899, authorizing the sale of swamp land at private sale does not authorize the county courts to make an executory contract of sale. (2) Nor to make a conditional sale based upon a contingency that may never happen. (3) A compromise by a trustee will not be upheld' unless the transaction shows that he was actuated by good intentions and exercised due caution and fidelity in respect to the interests of his cestui que trust. (4) A donation by a county court of 20,000 acres of swamp land, by patent regular on its face, will not be upheld in a suit to quiet title, brought by the patentee under sec. 650, Revised Statutes 1899, two years after the date of the patent. Simpson v. Stoddard County, 173 Mo. 421. (5) The trial court did not err in excluding the swamp land patent, made by the county, without any consideration whatever, for 20,000 acres of land, when offered by the patentee two years after its date. Simpson v. Stoddard County, 173 Mo. 421. (6) The county court had power to sell the swamp land of the county — not to make a gift of it to appellant. The patent was void because it was issued without authority of law. A void patent confers no title, and cannot be made the basis of an action by the patentee, who knows it was issued contrary to law. Simpson v. County, supra; Walcot v. Lawrence Co., 26 Mo. 272; Book v. Earl, 87 Mo. 246. (7) Where it clearly appears from admitted facts and undisputed evidence that the judgment was for the right party, it will not be reversed on appeal. Newberger v. Friede, 23 Mo. App. 631; R. S. 1899, sec. 865. (8) Nor when this court is satisfied that the result of a new trial will necessarily be the same. State ex rel. v. Benedict, 51 Mo. App. 642; Conley v. Doyle, 50 M'o. 234; Bank v. Kemble, 61 Mo. App. 209. (9) Appellant, claiming under a swamp land patent issued by the county, without consideration, to himself, in 1899, admits that respondent claims under a prior conveyance, made by the county, in 1867, reciting a cash consideration. The judgment will not be reversed upon appeal, as the appellant is not prejudiced by the action of the trial court, and the result of a retrial must be the same. State ex rel. v. Benediet, 51 Mo. App. 642; Conley v. Doyle, 50 Mo. 234; Bank v. Kemble, 61 Mo. App. 209.
   YALLIANT, J.

This is a suit under section 650, Revised Statutes 1899, to quiet title to about 4,300 acres of land in Butler county, the same being a part of the swamp and overflowed land granted by the United States to the State of Missouri under the act of Congress of date September 28, 1850, conveyed by patent from the United States to the State of Missouri, and by the State to Butler county. The petition states that the land was conveyed to the plaintiff by Butler county by patent duly executed; that it is not in the actual possession of anyone, but is wild and uncultivated; that defendant claims some title in it which is adverse and prejudicial to that of plaintiff. The prayer is that the court ascertain and determine the estate, title and interest of plaintiff and defendant respectively, and define the same by its judgment or decree.

The answer admits that it is swamp and overflowed land granted by the United States to the State of Missouri and by the State to Butler county, and that defendant claims to be the owner of the same, but denies that it is wild and unoccupied, and denies that plaintiff has any valid estate in it; avers that the alleged patent from Butler county to the plaintiff was without consideration; that it is void and of no effect; that the defendant is the sole and absolute owner; that defendant and those under whom it holds have been claiming the land under patents from the county prior to 1880 and have been paying taxes thereon for more than twenty years prior to the act of March 14,1901, amending section 9187, Revised Statutes 1899, by adding thereto a proviso the purpose of which was to quiet swamp land titles. Reply, general denial.

At the trial the plaintiff introduced in evidence the patent from the State to the county, reciting for its authority the act of the General Assembly of March 10, 1869, and the act of Congress of September 28, 1850, and conveying to the county all the swamp and overflowed lands within its borders. Then the plaintiff offered in evidence a patent from the county of Butler purporting to convey him certain lands described as swamp lands aggregating 19,987.98 acres, including the land in question in this suit, and reciting that the lands were purchased by the plaintiff from the county on the 29th of July, 1899, and that he had made full payment for the same to the county in sum of $24,984.97. To the admission of this patent in evidence the defendant objected on the ground that it was executed without consideration and in violation on the part of the county of its duty as trustee of the land, and the defendant asked leave to introduce evidence to sustain that objection. The plaintiff objected to allowing the defendant to introduce evidence on that point at that stage of the trial, but the court overruled the objection and exception was taken.

The defendant then introduced evidence tending to prove as follows:

The county court intending to sell all the swamp land within the county, invited bids for the same, to be received up to a certain hour on June 16, 1894. There were six bids received from that number of different bidders, ranging as follows: $1.35, $1.40, $1.42, $1.50, $1.57 1-2 and $1.65, the last and highest being the bid of the plaintiff in this suit, George B. Wheeler.

The plaintiff’s bid, which wa.s in writing, proposed to purchase all the swamp lands owned by the county and to pay into the county treasury $3,000, as a first payment, and the balance within ninety days “or sooner if abstracts can be had. I also proposed to pay for abstracting and all other expenses pertaining to investigation of title. Your petitioner permitting the county to reserve all lands occupied by actual settlers.” On June 21st, 1894, the county court made an order accepting the plaintiff’s proposal, reciting that it in-eluded what was known as the railroad lands; conditioned that the $3,000 mentioned in the bid be paid into the county treasury within five days, the same to become forfeit if Wheeler should fail to pay the entire amount of the purchase money according 'to his bid of June 16th, and that he enter into a written contract to perform the conditions in that bid expressed. The $3,-000 were paid into the county treasury on that day. On August 16, 1894, by order entered on its record of that date, the county court appointed one Graddy as the county’s agent to execute the contract referred to in the previous order. Thereupon a contract in writing of that date was executed by Graddy, acting as agent for the county, and the plaintiff herein in person, which, after reciting the Wheeler bid of June 16th, and its terms and conditions, the order of the county court of June 21st, accepting the bid with the conditions in that order contained, and the payment of the $3,000 as above stated, covenanted and agreed that the county would sell to the plaintiff 53,977.23 acres “heretofore pretended to be conveyed by Charles W. Addy as commissioner of Butler county to the St. Louis, Iron Mountain and Southern Railway Company,” and 3,959.37 acres likewise conveyed by another deed of a commissioner of the county, the record book and pages where those deeds are recorded being specified, and all other swamp or overflowed lands in the county, except such as are occupied by actual settlers and such as the county had not previously sold according to law, the purchaser agreeing to purchase on the terms mentioned all such lands “so owned by the said county of Butler and to which said county has title and to furnish at his own expense a perfect and complete set of abstracts made by a competent abstractor” within ninety days from September 15, 1894, and to defray the expense the county might incur “in ascertaining the exact and total number of acres owned” by the county and which it was contemplated by the county to convey, and to pay the full price offered in the bid therefor; on the performance of which conditions on the part of the plaintiff, the county was to execute to him a patent for the lands, but on failure to perform the conditions on his part, the obligation on the part of the county was to cease, the $3,000 were to be forfeited to the county, and the plaintiff was to bear his own expense.

On October 2,1894, a written contract was executed between Graddy acting for the county and the plaintiff in person, reciting that''by reason of pending litigation affecting the title to said lands and by reason of other legal complications respecting the title to said lands, it is impossible now to be determined” the quantity of the land to which the county had title, therefore it was agreed that the consummation of the previous agreement be postponed until the title of the county to the lands should be judicially determined and then the contract was to be carried out. That agreement was approved by the county court and spread on the record of the court.

On August 9, 1895, the county court made an order which was spread on its record, referring to the above1mentioned contracts with Mr. Wheeler, reciting that he had failed to comply with their terms and conditions, and declaring them cancelled and rescinded.

Three years afterwards, April 16, 1898, the plaintiff brought suit against the county for damages, based on the action of the county court declaring the contracts cancelled and rescinded, laying his damages at $50,000. The cause was taken by change of venue to the Iron Circuit Court. In May, 1899, while that suit was pending, one Palmer offered to purchase from the county, at the price of $1.25 an acre, 25,000 acres of swamp land which was covered by the Wheeler contract. Palmer had had experience in previous litigation concerning the title to these lands, and knowing what the county court records showed of Wheeler’s interest, would purchase from the county only on condition that he could obtain a quitclaim deed also from Wheeler; he accordingly paid Wheeler $6,250, which was twenty-five cents an acre for a quitclaim to the 25,000 acres, and then bought the same land from the county at $1.25 an acre.

On June 26, 1899, while the suit for damages was pending in Iron county, Mr. Wheeler presented to the county court of Butler county a written proposition of compromise, which was that if the county would return to him the three thousand dollars theretofore paid by him with interest at six per cent per annum and pay him twenty-five thousand dollars in addition he would accept the same in full satisfaction of his suit for damages, and that he would purchase from the county certain lands therein described, aggregating 19,987.98 acres (which includes the land involved in this suit) at the price of $1.25 per acre, the county to pay itself out of the sum coming to him under the compromise.

. On July 29, 1899, the county court made an order accepting the proposition for compromise and ordering the clerk of the court to issue to the plaintiff a patent for the land specified, and for payment thereof to withhold from the $25,000' compromise sum the price of the land at $1.25 an acre. In pursuance of which the patent under which the plaintiff now claims was issued, which patent recites that “it appeared to the satisfaction of the county court of Butler county, that on the 29th day of June, A. D. 1899, Geo. B. Wheeler made full payment for said land in the sum of twenty-four thousand nine hundred and eighty-four dollars and ninety-seven cents to said Butler county.” There was in fact no payment, however, except the cancelling to that amount of the compromise sum. At the same time the county returned to the plaintiff the $3,000 he had paid in on the contract, with interest amounting to $900.

In the patent it is recited that the grantee waives the right given to a bona fide purchaser by section 6509, Revised Statutes 1889, to come back on the county for any part of the purchase money paid, if it should he afterwards ascertained that the county had previously sold any of the land to another. On October 26, 1899, the plaintiff dismissed his suit for damages.

At the close- of the defendant’s evidence on this point the court asked if the plaintiff desired to introduce any evidence in support of the patent and plaintiff’s counsel answered that he did not. Thereupon the court sustained the defendant’s- objection to the patent, and the plaintiff accepted; a judgment for the defendant followed, and the plaintiff appealed.

I. Allowing the defendant to- introduce the evidence tending to show that the patent offered by the plaintiff was without lawful consideration before the plaintiff had announced that he had closed his case in chief, was out of the regular order and in strict right should not have been done. The plaintiff had traced the title from the United States to the State, and from the State to the county, and then offered the patent from the county to him, which was fair on its face, and made- a primafacie title. The patent should have been received in evidence and the defendant required to withhold its evidence until the plaintiff had rested. But the testimony was competent as tending to impeach the patent; the only error in receiving it was in allowing it to- come in out of the proper order.

The order in which proof is allowed to- be introduced, however, is to a great degree within the discretion of the trial court, and where upon the whole record it appears that no material wrong was done-, the judgment will not he disturbed for irregularity allowed in the order of proof. In this case the plaintiff suffered no injury by this course; the chain of title under which he claimed was really ended with his patent from the county, and although he had not announced his case closed, yet he does not suggest that he- had any other evidence to offer. On the question of the consideration paid for his patent he stated that he had no evidence to offer. The error in receiving the evidence of the defendant out of its order did not affect the merits of the plaintiff’s case, and therefore the judgment will not, for that reason, be reversed.

II. Appellant insists that beyond the question of the order of its introduction the testimony was incompetent, basing the proposition on the rule of evidence that whilst parol evidence is admissible to show the true consideration of a deed, though different from that expressed on its face, yet it is not admissible to defeat the deed itself as a conveyance by showing that, there was no consideration at all to support it.

That rule, however, does not stand in the way of a person who is in no sense a party or privy to the deed and against whom it is produced in a suit wherein the validity of the deed itself is open to direct assault.

This is a suit under our statute to quiet title, which, though not technically a suit in equity, is designed to determine all the questions whether of law or equity relating to the respective titles of the parties and to put at rest the controversy. The plaintiff by his petition offers to show his title and maintain its validity and demands that the defendant show by what title he claims and the prayer in effect is that the court adjust the dispute forever between them, decreeing as between them the infirmity, if any, in the claim of either and adjudging which has the better title.

By the petition and answer it appears that the land in. suit is swamp land given by the United States to the State of Missouri, and by the State to Butler county, and both parties claim under different grants from the county. The arguments on both sides carry the implication that the county held the title as trustee and could dispose of the same only as the statutes prescribed, and each contends that the patent under which the other claims is invalid because it was not executed in conformity to the law. In so far, therefore, as the right of either party to a decree in his favor depends on the invalidity of the title claimed by the other, he has a right to go into that subject and show if he can that the claim of his adversary is invalid. Both of these patents are on record, both are fair .on their faces, each party is claiming title under his patent, and the one is a constant menace and a source of disquiet to the other, therefore it makes a case in which either party has the right to bring the other into court under the statute to quiet the title, and when they are in court the court has jurisdiction to go to the bottom of both titles and make a decree putting the title at rest.

The plaintiff refers to Simpson v. Stoddard County, 173 Mo. l. c. 458-9, wherein it is said that a patent to swamp lands from the county, regular on its face and based on orders of the county court, is valid until set aside by appropriate proceedings; that: “It is not absolutely void, but may be avoided in an action for that purpose, upon a showing of independent, unauthorized acts upon which the instrument is based.” And it is contended that that means that the patent is valid until it is set aside in a suit instituted by the county for that purpose. But that is not what the court said in that case, and is not what was meant. If that were the law, then a party who held a valid patent from the county could have no relief from another patent that may have been issued by the county which, though fair on its face, was founded on a false bottom, until the county itself might see fit to interfere. If the county had conveyed its title by another patent that was valid, it had no further interest in the land and unless the other patent contained some covenant or agreement, express or implied, which would render the connty liable for a breach, the county would have no such interest as would enable it to maintain a suit to set aside the alleged unauthorized patent. But whether the county could or could not sue, the party who held the valid title could sue to defend his own title or to put it at rest.

No one has a right to require another to come into court and show his title who can not himself show at least a prima-faeie title; and no plaintiff is entitled to a decree declaring the claim of another invalid until he has shown that he himself has a better claim; in equity, as at law, if one recovers at all it must be on the strength of his own title. Therefore, when the plaintiff calls this defendant into court to answer and show what title it has, he is not entitled to a decree declaring that the defendant’s claim of title is invalid until he first shows prima-facie a valid title in himself, even though the defendant offers no proof of his own title. If therefore the defendant’s proof goes no farther than to show that the plaintiff’s title is invalid, the plaintiff is not entitled to a decree. If the plaintiff has no valid title, it is no concern of his to know whether or not the defendant’s claim is valid.

It appears from the record in this case that both parties claim under different grants from the county, the plaintiff under a patent executed in 1899, the defendant under one executed in 1867. The plaintiff in his brief says of defendant’s patent that although it recites on its face that it was executed for a money consideration, yet in fact the real consideration was an agreement by the grantee to clear out and render navigable Black river which he never did, and that under the law as it then was the county had no right to appoint a commissioner to execute the patent, but that the Governor of the State alone could execute it, yet that this patent was executed not by the Governor but by a commissioner appointed by the county court. Under the view we have taken of the plaintiff’s title, the case is disposed of before a consideration of the defendant’s title is reached.

The defendant says of the plaintiff’s patent that it is invalid because although it recites a money consideration on its face yet in fact there was no consideration to support it. The proof sustains the defendant in that allegation.

Where the antagonistic parties both claim under a common grantor, if the property in question belonged to the grantor in his own right to do with it as he pleased, to sell it or give it away, if the prior grant was a gift and the other a sale for value, the holder of the latter could not impeach that of the former by showing that it was without a valuable consideration. But where the common source was a public trustee who was authorized to sell only for a valuable consideration, yet who, in disregard of the trust, essayed to convey the property as a mere gift, a party holding a deed from the trustee executed in good faith for a valuable consideration is entitled, in a suit in which the respective titles are the subject of adjudication; to show the total, want of consideration in the deed of gift in order to have it adjudged invalid. Whether this would be so in case there had been an intervention of a mesne conveyance to an innocent purchaser for value is not a question in this case, for here we are dealing with the original grantee in the patent which is assailed for want of consideration.

Whatever differences of opinion there may be in other particulars in regard to the rights and duties of the counties in dealing with these swamp lands, all agree that the counties hold the lands in trust for a purpose or purposes declared by law, and that the counties may sell the lands, but no one contends that a county may give the land away without any valuable consideration.

Now let us see what consideration there was for the plaintiff’s patent.

When the county invited bids in June, 1894, a number of bids were made, ranging from $1.35 to $1.65 per acre, the highest being that of the plaintiff, the next highest being $1.57 1-2. So far as the record shows, the plaintiff by his bid prevented a sale by the county to any of the other bidders. The plaintiff’s bid was not for an -unconditional purchase of all the swamp land in the cotínty, but of all the swamp lands owned by the county, and it stipulated for an abstracting and an investigation of the title and a deferment of the main payment until that was done; therefore from the very beginning there was an uncertainty in respect of quantity and identification of the land. Then when the county court accepted the bid, on June 24, 1894, it did so on the condition that the plaintiff pay the $3,000 mentioned in the bid within five days, and that that sum be forfeited if the rest of the purchase money was not paid within the time proposed (ninety days) after the amount could be ascertained according to the terms specified in the bid. In the contract of August 16, 1894, whilst it is specified that the purchase was to cover about 57,000 acres of land previously “pretended to be conveyed” to the railroad company and all other swamp lands in the county not theretofore actually and legally sold by the county, yet it limited the parties to the sale and purchase of only such of those lands as to which the county.held title. Then in October, 1894, another contract in writing was made in which it was recited that, owing to litigation and legal complications affecting the titles to the lands, it was impossible a.t that time to carry out the contract of August 16th, therefore its consummation was postponed until the titles could be cleared up by judicial determination, and that when the titles were determined if it was found that the lands belonged to the county, then the contract was to be in force.

Thus it appears that the only obligation the county ever essayed to undertake was to sell the plaintiff so much of the swamp lands in the county as it might thereafter be ascertained by judicial determination was owned by the county; and that is all that the plaintiff ever agreed to purchase.

One of the events on which the consummation of. this contract was to wait was the clearing np of the title to over 57,000 acres of land which had been apparently sold to a railroad company as long ago as 1867, and which had passed by mesne conveyances into how many hands can only be surmised.

The contract did not require either party to institute a suit or take any action looking to a judicial clearing up of the title, and as far as appears from the record, nothing in that way has been done.

The effect of this contract, if effect should be given to it as it purports, is to tie the hands of the county for an indefinite period, if not forever, so that it could not dispose of these lands except by the permission of the plaintiff; and that has been the practical result. 'When Mr. Palmer offered to purchase 25,000 acres of land aud was willing to pay the price asked by the county, $1.25 an áere, he was unwilling to purchase with the "Wheeler claim outstanding, and paid Mr. Wheeler $6,250, that is, 25 cents an acre, for a quitclaim deed.

It is contended in the brief for respondent that the statute, section 8197, Revised Statutes 1899, which confers power on the county court to sell the swamp lands, does not confer power to make an executory contract for such a sale. It is not necessary in this case to decide whether or not such a power is given. It is sufficient to say that under the circumstances of this case the county court had no authority to allow its hands to be tied so as to prevent it from executing its trust, as would be the case if effect was given to the contract in question.

In April, 1895, a new. county court having come in, it declared the contract cancelled, and three years thereafter the plaintiff brought suit against the county for $50,000 damages. That suit he afterwards dismissed in consideration of the return to him of the $3,-000 he had paid and $900 interest on the same, and a patent for 19,987.98 acres of land, including the land in this suit.

Thus the result of the transaction is that the plaintiff has received from the county a patent to nearly 20,000 acres of land for which he has paid nothing at all. If the county in the beginning had made him a deed of gift to this land no one would say that it was a valid conveyance, yet all these transactions put together amount only to a deed of gift. The law in such case regards the substance, not the form.

It is contended in the brief for appellant that the compromise of the lawsuit was a valuable consideration. We must keep in mind the fact that the county court was dealing with property that it held in trust and could dispose of only as the law authorized; that the plaintiff was dealing directly with the county and was chargeable with notice of the trust limitation on the county’s power. Suppose that instead of going through the form of a suit for damages and the form of a compromise, after the agreement of October, 1894, whereby the consummation of the former contract was postponed until the title of the county could he cleared by future judicial determination, the county court had agreed with the plaintiff that in consideration of his release of the county from the contract of sale they would give him 25,000 acres of the land, would anyone contend that the trustee could do that? If it could not he done on a straight line, it could not be done in a circle.

The plaintiff had no real claim against the county for damages. In the first place, as we have seen, his contract was not valid, but even if his contract had been such as to have given him any claim on the land, the action of the county court in April, 1895, declaring the contract forfeited, did not impair his claim. If he had any claim to the land it rested entirely on transactions spread on the records of the county court. No subsequent purchaser from the county could have based a claim of being an innocent purchaser on the fact that the records of the county court of date April 9, 1895, declared the plaintiff’s contract cancelled, because not only ‘did the order show on its face that it was the declaration of only one party to the contract, bnt it referred to the previous orders which contained the whole transactions, and if they gave the plaintiff the right he claims they also gave the subsequent purchaser notice thereof.

This is not like the case of State ex rel. Marshall v. Butler County, 164 Mo. 214, to which we are referred. There the county had entered into a contract with attorneys to institute and prosecute suits to recover lands held by claims adverse to the county, the attorneys entered upon the fulfillment of their contract, performed part of the work, incurred large expenses, and were proceeding to do all that they agreed to do when the county court without any cause rescinded the contract and refused to allow them to proceed. Of course the attorneys could not proceed to institute or prosecute suits in the name of the county when the county court forbade them doing so. But in the case at bar the plaintiff did not need the permission of the county court to institute legal proceedings to protect his title. He could have proceeded in spite of the order of April 9th, and, unlike the attorneys in the case last referred to, he has done nothing and paid nothing. The result of the whole transactions is that without the payment of any consideration at all the plaintiff covered all the swamp lands in the county with a cloud which has yielded him in cash $6,250, and he had obtained from the county court a deed of gift for nearly 20,000 áeres of land which the county had no right to give away.

The trial court correctly decided that the plaintiff’s patent, dated June 29, 1899, recorded in book 53, page 224, of the records of deeds of Butler county, was invalid.

The judgment is affirmed.

All concur except Marshall, J., not sitting.


source: Caselaw Access Project

author: BRACE, P. J.

license: Public Domain

text:
    KANSAS CITY INTERURBAN RAILWAY COMPANY, Appellant, v. NELSON.
    Division One,
    February 22, 1906.
    1. CONDEMNATION: Petition: Description. The petition set out in the statement sets forth a description of the real estate sought to be condemned for a public use and also the names of the owners thereof, and is not demurrable as for a failure to so state.
    2. -: -: Public Use. It appears from the face of said petition that the land is sought to be condemned for a public use, namely, for the use of a regularly organized and chartered railroad.
    3. -: -: Other Lands Than Those of Defendant: Defect of Parties. Even where it may inferentially appear on the face of the petition in a condemnation case that plainiiff’s railroad is to be constructed and run over lands in the same county other than those of defendant, a demurrer to the petition cannot be sustained on the ground that it is essential to the maintenance of the plaintiff’s action against a single landowner that all the other owners of such lands should be made parties defendant. The statute (sec. 1264, ft. S. 1899) does not have that meaning, and the petition is not demurrable for that other owners are not joined, because it may appear on the hearing that plaintiff and the other owners may have agreed upon the compensation to be paid for their lands.
    Appeal from Jackson Circuit Court. — Hon. J. H. Slover, Judge.
    Reversed and remanded.

      Moore é Handy for appellant.
    (1) It is not necessary to join all persons owning tracts of land along the line of the proposed railroad in one county or circuit, not settled with, as parties defendant in one petition. R. S. 1899, sec. 1267; Railroad v. Railroad, 129 Mo. 70; R. S. 1899, sec. 1161. (2) Sections 1264, .1266 and 1267, Revised Statutes 1899, should he read and construed together. (3) These sections should he so construed that all may stand if it is possible so to do. Manlier v. Faulhaber, 94 Mo.. 430; Curt-wright v. Crow, 44 Mo. App. 567; Sutherland on Statutory Construction, secs. 239-41; St. Louis v. Howard, 119 Mo. 41; State v. Klein, 116 Mo. 265; Andrew County v. Schell, 135 Mo. 42.

      Wash Adams for respondent.
    (1) The statute creates and provides for one summary proceeding’ in each county or circuit through which the right of way of the proposed road is sought to be condemned, and expressly provides “to which petition the owners of all such parcels of land as lie within the same county or circuit shall be made parties defendant by name if the names are known, and by the description of the unknown owners of the lands therein described if their names be unknown.” R. S. 1899:, secs. 1264-1273; Railroad v. Irwin, 50 Mo. App. 552. (2) Being in derogation of common right, the rule strictissimi juris applies and every requirement of the statute must be fulfilled. Cray v. Railroad, 81 Mo. 135; Anderson Vv Pemberton, 89 Mo. 61; Railroad v. Lewright, 113 Mo. 660; Railroad v. Campbell, 62 Mo. 585; Schaffner v. St. Louis, 31 Mo. 272; Lester v. St. Louis, 47 Mo. 477; Railroad v. Alley, 34 Mich. 16; Stanford v. Worn, 27 Cal. 171. (3) The petition itself must show on its face that it includes all land necessary to be condemned in Jackson county, and that the owners of all this land are made parties thereto by name. ITonenstine v. Yaughn, 7 Blackf. 520; Kane v. Railroad, 112 Mo. 37; Lewis on Eminent Domain, sec. 349; Lane v. Miller, 17 Ind. 58; Hughes v. Sellers, 34 Ind. 337; In re Flatbush Ave., 1 Barb. 286; In re Washington Park, 52 N. Y. 131; Meyers v. Brown, 55 Ind. 598. (4) If a condemnation statute requires the petition to' include the names of all landowners interested, the omission so to do is fatal on demurrer. Lewis on Eminent Domain, sec. 349; Honenstine v. Vaughn, 7 Blackf. 520; Lane v. Miller, 17 Ind. 58; Hughes v. Sellers, 31 Ind. 337; In re Flatbush Ave., 1 Barb. 286; In re Washington Park, 52 N. Y. 321; Meyers v. Brown, 55 Ind. 598.
   BRACE, P. J.

— This is an appeal by the plaintiff from a judgment of the Jackson Circuit Court in favor of the defendant, sustaining a demurrer to the plaintiff’s petition in a condemnation proceeding.

The petition and demurrer are as follows:

PETITION.

“The plaintiff states that at the times hereinafter mentioned it was and still is a railroad corporation, duly organized under the laws of the State of Missouri, with principal office in Kansas City, Missouri, with full power and authority to construct, maintain and operate a standard gauge railroad for public use, in the conveyance of persons and property in the State of Missouri, from a point commencing at or about Forty-eighth and Main streets in Kansas City, Missouri, to a point at or near Dodson, in said Jackson county, Missouri, over and across the tract of land hereinafter mentioned; that the general direction of said line of railroad built and to be built by your petitioner from said beginning point is easterly and southerly.
“That your petitioner has heretofore filed in the office of the clerk of the county court of Jackson county, Missouri, at Kansas City, a profile map of the route intended to be used in the construction and operation of said railway, which profile map duly shows the actual survey, location and distances of the roadbed of said railroad, the congressional sections through which said roadbed is laid; showing the number of miles of main and side tracks of such road in said county, which map is duly certified by the president and engineer of the petitioner, and of which defendant had due notice.
“That said defendant, William R. Nelson, is the owner and claims to be interested in tbe tracts of land hereinafter described over and across which it is contemplated to construct the main line of your petitioner’s said road, and which your petitioner seeks to appropriate for public use for a right of way for its said railroad, and which right of way across said tract of land is necessary for said railroad. That said tracts of land are situate in the county of Jackson, in the State of Missouri, and described as follows: [Here follows a description of the land.] Thé petitioner shows to the court that easterly is the general direction in which it is desired and contemplated to build and construct the railway of your petitioner over and across the lands hereinbefore described, and that the railway proposed to be constructed across the above-described tracts of land is an extension of the petitioner’s line of railway from said beginning point above mentioned.
“And the petitioner states'that your petitioner and the said owners of said land above mentioned and sought to be condemned in this proceeding can not agree as to the compensation to be paid to them, or any of them, for the right of way for your petitioner’s railway over and across said lands, or any part of them, though repeated attempts for an agreement for said compensation have been made by your petitioner and the said owner; and the said owner has likewise refused to relinquished said right of way over and across said land, or any part thereof, and has refused to make to the petitioner a voluntary conveyance of such right of way. The petitioner files herewith plats of the ground to be taken for said purposes, which are marked exhibits ‘1,’ ‘2,’ and ‘3.’
“Wherefore your petitioner prays for the appointment of three disinterested freeholders of J ackson county, Missouri, or by jury to assess the damages which said owner may sustain by reason of the establishment, erection, maintenance, and operation of said railroad of your petitioner over, across and through said land, in accordance with, the statutes of this State in such cases made and provided, and that summons shall issue herein notifying said defendant, as required hy law, of the time and place when said petition shall be heard; and that this honorable court in the finding of and report of said commissioners may make such order or orders herein as right and justice may require. ’ ’

DEMURRER.

“Now comes the defendant in the foregoing cause and demurs to the petition of the plaintiff therein, and for grounds of demurrer says: That said petition does not set forth a description of the real estate which the plaintiff company seeks to acquire, nor the names of the owners thereof. It does not appear upon the face, of said petition that the land is sought to be acquired for public use. It does appear upon the face of said petition that said railroad is to he constructed and run over lands in Jackson county other than those described therein, and that such owners are not made parties defendant to this proceeding, and that there is a defect of parties defendant. Wherefore defendant says said petition is insufficient and does not comply with the statute in such cases made and provided.”

I. It is manifest that the demurrer could not he sustained upon either of the two first grounds stated therein, for the petition does set forth a description of the real estate sought to he condemned and the name of the owner thereof, and upon its face it does appear that it is sought to he condemned for a public use — i. e., a regularly organized and chartered railroad. [Kansas & Texas Coal Ry. Co. v. Northwestern Coal & Mining Co., 161 Mo. 288.]

But it is contended for the defendant that the demurrer was properly sustained on the third ground therein stated, i. e., that “it does appear upon the face of said petition that said railroad is to he constructed and run over lands in Jackson county other than those described therein, and that such owners are not made parties defendant to this proceeding, and there is a defect of parties defendant.”

Conceding that it does inferentially appear on the face of the petition that plaintiff’s railroad “is to be constructed and run over lands in Jackson county other than those described” in the petition, is it essential to the maintenance of plaintiff’s action that all the other owners of such lands should have been made parties defendant in this proceeding ? Counsel for defendant contends that it is, and for support of the contention relies upon section 1264, Revised Statutes 1899, by which it is provided that:

“In case lands or other property are sought to be appropriated by any road, railroad, telephone, telegraph or other corporation created under the laws of this state, for public use, and such corporation and the owners can not agree upon the proper compensation to be paid, or in case the owner is incapable of contracting, be unknown, or be a non-resident of the State, such corporation may apply to the circuit court of the county where said land or any part thereof lies, or the judge thereof in vacation, by petition, setting forth the general directions in which it is desired to construct their road, railroad, telephone or telegraph line over such lands, a description of the real estate or other property which the company seeks to acquire, the names of the owners thereof, if known, or, if unknown, a pertinent description of the property whose owners are unknown, and praying the appointment of three disinterested freeholders as commissioners, or by a jury, to assess the damages which such owners may severally sustain in consequence of the establishment, erection and maintenance of such road, railroad, telephone or telegraph line over such lands; to which petition the owners of ell such parcels as lie within the county or circuit shall be made parties defendant, by name, if the names are known, and by the description of the unknown owners of the lands therein described, if their names are unknown.....”

We do not think this contention can be maintained. All the owners of land in a county over whose lands a railroad is to be constructed is not the class of persons against whom condemnation proceedings are provided for by this section of the statute. It is only against such of those owners as are either unknown, non-resident, incapable of contracting, or who do not agree upon a proper compensation to he paid for their lands that this proceeding is provided. Against such owners as are able to contract, and are willing to agree with the corporation upon a proper compensation for their lands, there is no necessity for condemnation proceedings and for such none is provided, and for aught that appears on the face of the petition, all the owners of land in Jackson county over whose lands the, plaintiff ’s railroad is to he constructed, except the defendant, may be of this class, i. e., owners who are capable of contracting and willing to agree upon a proper compensation to he paid by the corporation for their lands. It does not appear that any person other than the defendant is a necessary party under the provisions of this section, construing it strictly and as his counsel contends it must be construed. Counsel for appellant, however, meets the contention upon the broader ground, that even if it did appear that there were other owners of the class contemplated by this section of the statute, yet, when it is construed with other sections of the same statute, it becomes evident that such owners are not necessary parties to this proceeding according to the true legislative intent of the whole statute on the subject.But-the demurrer does not reach that question, and we refrain from entering upon its discussion.

The judgment of the circuit court on the demurrer is reversed and the cause remanded for further proceedings.

All concur.


author: LAMM, J.

text:
    WELCH, Appellant, v. MORRIS and HELEN MANN.
    Division One,
    February 22, 1906.
    I. FRAUDULENT CONVEYANCE: Gift to Wife. A gratuitous conveyance of a modest portion of his property to his wife by a prosperous and solvent merchant, at a time when all debts had been extinguished, in the absence of a later insolvency flowing from causes then operative, cannot be held to be a contrivance to withdraw from the hazard of a contemplated and pending business venture the property so conveyed, and hence is not fraudulent as to his subsequent creditors.
    "2. -: Homestead. Creditors are not concerned in the disposition of a homestead. But whether or not a conveyance by a husband of a homestead to his wife, as a gift, at a time when there were no creditors, will afterwards, when abandoned as such by both husband and wife, and their marital relations dissolved by divorce, be vulnerable to attack by his subsequent creditors, is discussed in the opinion in this case, but not decided, since the point is not discussed by counsel nor presented in briefs.
    3. -: In Consideration of Marriage. A timely conveyance of real estate to a wife in pursuance to an oral antenuptial contract by the husband to convey property to her if she would marry him, in the absence of actual fraud participated in by her, is invulnerable to attack by his subsequent creditors, although the contract was obnoxious to the Statute of Frauds in not being in writing and in not designating the specific property to be conveyed.
    4. -: -: Family Settlements. Voluntary family settlements made by those not indebted are by the law favored more than any other species of conveyance, and are safe against subsequent creditors, unless made with a present fraudulent intent, participated in by both donor and donee, that the donor is to become indebted, and to hinder and delay the collection of such future debts.
    5. -: Contingent Indebtedness: Date. A contingent indebtedness by which under a written contract one person, in consideration of the transfer of certain assets to him, assumes the liabilities of the transferer, must be referred back to the date of the contract, and from that date the transferee, in contemplation of law, becomes a technical and contingent debtor of the transferer.

      6..-: Fraudulent Intent. To overthrow a voluntary conveyance by a husband to his wife, at the suit of the husband’s ered- . itor, it must be shown that the conveyance was afflicted with fraud in fact or in intent; that is, that it was conceived and (executed for a fraudulent purpose, or that it had the effect of perpetrating a fraud upon his creditors.
    7. -: -: Suspicion: Testimony of Husband: Desertion and Divorce. Where the evidence creating a suspicion of the husband’s fraudulent intent to hinder and delay creditors by conveying certain property to his wife ’arises from the husband’s testimony, the court will not close its eyes to the fact that since the conveyance was made he has deserted his wife and she has been divorced from him.
    8. -: Fraud in Fact: Indebtedness. In a suit to set aside a voluntary conveyance- of real estate to the wife by the husband as having been made by him to defraud and delay his creditors, the mere fact of a present indebtedness does not conclusively establish fraud in fact. The extent of his debt-paying ability remains to be considered, and the extent of the present indebtedness is a factor.
    9. -: -: -: Property Left. A person may, although indebted at the time, settle some portion of his property, provided enough is left to satisfy his debts. And where a husband conveyed $5,000 worth of real estate, as a settlement or gift, to his wife, at a time when his contingent indebtedness was $1,500, but had $7,500 in real estate and personal property left to meet it, the conveyance was not fraudulent in fact.
    10. -: Suit by Purchaser at Sheriff’s Sale: Better Course. A person who buys at the sheriff’s sale under a judgment in favor of a creditor against one who has voluntarily conveyed the property to another, may thereafter maintain suit to set aside the conveyance as having been made in fraud of the right of the grantor’s creditors. But the modern practice, and the more equitable course, is, after judgment and before execution, to bring a suit to set aside the voluntary conveyance, for otherwise the property may be sacrificed, and that will be a fact appealing to the conscience of the chancellor when suit is brought by an execution purchaser, who stands in the shoes of the judgment creditor, to have the conveyance set aside.
    Appeal from Jackson Circnit Court. — No». J. H. Slover, Judge.
    Affirmed.

      Scarritt, Griffith & Jones for appellant.
    (1) The conveyance by Mann to his wife, January 27, 1896, of the north half of lot 20, Phillips’ Place, and lots 1 to 4, block 2, Mt. Evanston, was admittedly voluntary, and without consideration, and was void as to existing creditors. Pawly v. Yogel, 42 Mo. 301; Bank v. Overall, 16 Mo. App. 515, 90 Mo. 410; Loehr v. Murphy, 45 Mo. App. 524; Payne v. Stanton., 59 Mo. 158; Hurley v. Taylor, 78 Mo. 238; Fisher v. Lewis, 69 Mo. 629; Shanklin v. McCracken, 151 Mo. 597; Lander v. Ziehr, 150 Mo. 412; Swinford v. Teegarden, 159 Mo. 653; Balz v. Nelson, 171 Mo-. 682. The general rule of law is that voluntary conveyances or disposition of property without consideration are without effect and fraudulent as to existing creditors. Gardner v. Kleinke, 46 N. J. Eq. 90; Jackson v. Lewis, 34 S. C. 1; Emerson v. Bemis, 69 111. 540; Hanson v. Buckner, 4 Dana (Ky.) 251; Crawford v. Kirksey, 55 Ala. 282. (2) There is no showing made by this record that Mann was possessed of such ample means that he could convey all of his unincumbered real estate to his wife, ten or eleven months' after executing the obligation to Fish, dated March 1, 1895, and after he had been pressed to discharge that obligation, and while an existing indebtedness arising out of that obligation to Fish hung over him, without violating the well-established rules respecting fraudulent conveyances. Walsh v. Ketchum, 84 Mo. 427; Patten v. Casey, 57 Mo. 118. The solvency required by an unbroken line of decisions in this State, essential to protect a voluntary, gift, “consists not only in the present ability of the debtor to pay his debts but in such a condition of his means that payment can be enforced by process of law.’.’ Eddy v. Baldwin, 32 Mo; 369; State ex rel. v. Koontz, 83 Mo. 323; Grocer Co. v. Walker, 69 .Mo. App. 556; Hoffman v. Nolte, 127 Mo. 133; Jordan v. Buschmeyer, 97 Mo. 97. (3) The taking of the title to lot 32, Eaton Place, by Morris Mann, in the name of his wife, for a debt due him, and the subsequent payment of $1,500 upon the incumbrance on that lot by Morris Mann, is patently a part of a well-defined purpose on his part to hinder, delay and defeat his creditors in the collection of their debts. Almost concurrently with that transfer he incorporated his mercantile business and thereby shifted his personal liabilities to the corporation and, by failing within fifteen months thereafter, settled them at fifty-two cents on the dollar. The obligation on which the judgment was rendered, was executed within four months of the conveyance of this lot to his wife.

      Geo. L. Edwards and Edward D’Arcy for respondents.
    (1) Marriage constitutes the highest and most valuable of all considerations. Bank v. Read, 131 Mo. 553; Cohen v. Knox, 90- Cal. 266; Bump on Fraud. Con. (4 Ed.), sec. 266; Magniac v. Thompson, 7 Pet. 348; Frazer v. Thompson, 1 Griff. 49; Douglasse v. Ward, 1 Ch. Ca. 99. (2) And when the wife takes a conveyance in consideration of marriage in good faith, the conveyance is valid, though the husband intended to defraud his creditors. Bank v. Read, 131 Mo. 553 ; Magniac v. Thompson, 7 Pet. 348; Partridge v. Gopp, 1 Eden 163; Campion v. Cotton, 17 Yes. 264; Andrews v. Jones, 10 Ala. 400; Eppes v. Randolph, 2 Cal. 103; Jones’ Appeal, 62 Pa. 324; Otis v. Spencer, 102 111. 622; Bump. Fraud. Con. (4 Ed.), secs. 266 and 272; Nance' v. Nance, 84 Ala. 375. (3) It has always been held in Missouri and everywhere else, that no contract which has been fully performed is within the Statute of Frauds. Smith v. Davis, 90 Mo. App. 533; Maupin v. Railroad, 171 Mo. 187; See v. Malone, 82 S. W. 557; Graff v. Foster, 67 Mo. 512; Blanton v. Knox, 3 Mo. 342; Mueller v. Wiebracht, 47 Mo. 468; Taylor v. Pen-quite, 35 Mo. App. 389. (4) The proof by a subsequent creditor, of prior debts of the grantor, must he specific, and this proof must also be accompanied by evidence of the grantor’s inability to pay those debts. Bump, Fraud. Con. (4 Ed.), sec. 296; Smith v. Creer, 3 Humph. 118; White v. Sansom, 3 Atl. 410; Loeschigk v. Hatfield, 51 N. Y. 660; Wilbur v. Fradenburgh, 52 Barb. 474; Hutchinson v. Kelly, 1 Rob. 123; Bank v. Patton, 1 Rob. 494. (5) Voluntary conveyances are void only so far as may be necessary to satisfy prior creditors, and if they are paid, the conveyance will stand. Bump, Fraud. Con. (4 Ed.), sec. 296; Ingram v. Phillips, 3 Strohb. Ch. 565; O’Connor v. Bernard, 2 Jones 654; Lyne v. Bank, 5 J. J. Marsh 545; Sweney v. Ferguson, 2 Blackf. 129; Freeman v. Burnham, 36 Conn. 469. (6) So far as subsequent creditors are concerned, a voluntary conveyance, to be set aside, must have been made with an intent to put the property out of reach of debts which the grantor at the time has contracted, or intends to contract, and which he does not intend to pay, or has reasonable grounds to believe he may not be able to pay. Bump, Fraud. Con. (4 Ed.), sec. 292; Winchester v. Charter, 94 Mass. 606. (7) The burden of proof is upon a subsequent creditor, to show an actual intent on the part of the grantor to defraud his creditors. In this respect the rights of a subsequent creditor differ from those of an existing creditor. Bump, Fraud. Con. (4 Ed.), secs. 291 and 295; Loeschigk v. Hatfield, 51 N. Y.-660; Nicholas v. Ward, 1 Head 323; Hagerman v. Buchanan, 45 N. J. Eq. 292; Hussey v. Castle, 41 Cal. 239.
   LAMM, J.

— Helen Mann, born Miles, married Morris Mann on September 27, 1893, and is in possession of certain, parcels of real estate in Kansas City, claiming title under two deeds of conveyance. The grantor in one of these deeds, her brother, Oscar L. Miles, by a conveyance dated September 24, 1894, duly of record, conveyed to her lot 32 in Eaton Place, an addition to Kansas City, Missouri, for an expressed consideration of $7,500, subject, however, to two incumbrances, one, $4,500, the other, a junior lien, $750. The grantor in the other deed is her husband. His deed, dated January 27,1896, for an expressed consideration of $5,000, conveys to her lots 1, 2, 3 and 4 in block 3 in Mt. Evans-ton, and the north half of lot 20 in Phillips’ Place— said Mt. Evanston and Phillips’ Place being additions to said city — and which conveyance was duly recorded. One other tract of ten acres, north of Independence, bearing a diffuse description, and referred to herein as tract “A” for convenience, also passed by this latter deed to Helen Mann.

The consideration paid for the Eaton Place tract was the present release of an indebtedness of $1,500 due from Oscar L. Miles to Morris Mann. No cash consideration passed between Mrs. Mann and her husband on the second conveyance.

One Pish, on the 23d day of March, 1899, commenced a proceeding against Morris Mann in the circuit court of Jackson county, Missouri, to recover on sundry items of alleged indebtedness, $2,044.90, alleged to have accrued at divers dates between October, 1895, and March or May, 1896, and which proceeding ripened into a judgment in favor of Pish on July 3, 1902, in the sum of $1,500. On that same day an execution issued and was levied on the aforesaid parcels of real estate standing in the name of Helen Mann — including tract “A.” After due advertisement, all said tracts except “A,” were sold to John S. Welch, appellant, ou September 6,1902, at sheriff’s sale, he bidding and paying for the Phillips’ Place tract, $300; for the Eaton Place tract, $150; and for the Mt. Evanston tract, $200. On the 22d day of the same month Welch received a sheriff’s deed therefor, properly acknowledged and recorded — tract “A,” passing off to one Christian Doerr, a stranger, is not directly affected by the present litigation.

Welch was not a creditor of Mann. A resident of Kansas City, he bought at the sheriff’s vendue, without seeing the parcels of real estate struck off to him or the improvements appurtenant thereto, without having the title examined, and without understanding or attempting to understand the condition of the title. He was moved to his “sight-unseen” (or, as some juvenile authorities put it, ‘ ‘ unsight-unseen ’ ’) purchase by being assured there was a barg’ain, and as a speculative venture (i. he, in the graphic idiom of the street, preserved in the record, “took a ‘flyer’ ”) after consulting with Fish’s attorneys. Including the Doerr bid for tract “A,” $600, the net proceeds of the sale, $1,037.70, were credited on the Fish-execution.

On the day following the acknowledgment and recording of his sheriff’s deed, Welch lodged in the same court his bill in equity against Morris Mann and Helen Mann, the object and general nature of which was to establish his own title to said real estate, divest the record title of Helen Mann out of her, and vest the same in himself, to have an accounting of rents and profits, to appoint a receiver, to have an injunction against waste and to obtain possession. The bill proceeds on the theory that Morris Mann was insolvent when the several conveyances to his wife were executed; that among his creditors was the said Fish; that Morris Mann, in spite of said conveyances to his wife, remained the beneficial owner of said real estate; that the sheriff’s deed conveyed his title to plaintiff, and that the conveyances to Helen Mann were a part of a fraudulent scheme to hinder and delay Mann’s creditors and cheat and defraud them, especially said Fish; that Helen Mann colluded with her husband in said scheme of fraud, and that the conveyances to her were voluntary.

To this bill Helen Mann filed a separate answer tendering the general issue, while Morris Mann defaulted, employed no attorneys and took no part in the trial below as a litigant, nor here on appeal.

Late in. 1901 or early in January, 1902, Morris and Helen Mann ceased to live together as husband and wife. From 1898 down to September, 1901, their marital relations were" strained because of his absenting himself from her at periodic times, and which periodic absences culminated in a final desertion in January, 1902. An infant daughter is the sole product of their union, and for a few months after such desertion the husband provided for his wife and child and then quit. She brought no property into their joint marital venture, and she and her child are without provision except the parcels of land in controversy and the usufruct thereof. Prior, we think, to the date of the sheriff’s deed relied upon by appellant, and possibly prior also to the date of the judgment in Fish v. Mann, the deserted wife procured a divorce, awarding her the custody of her child. Up to the time her husband stepped down and out from his place as the head of his _family and cast off the burden of its maintenance, he seems by her tacit consent or acquiescence to have collected such rents as accrued on the several próperties conveyed to her, and paid the taxes. On a date, approximately fixed at his failure to provide for her and her daughter, she assumed through her agents the collection of rents, the making of repairs and the payment of such general and special taxes as the income would permit. It is, furthermore, shown that the Eaton Place property was the home of the Mann family from the time of its purchase down to an uncertain date, possibly in 1896. It is disclosed, also, that the present amount of the incumbrance on it is $3,000; and that within three months after its conveyance to his wife on September 24, 1894, and before Christmas of that year, the incumbrance existing at the time of its purchase was reduced by the payment of $1,500 by Mann. What became of the second mortgage of $750, which should also have been paid off in order to leave the existing incumbrance $3,000, as above, does not appear.

The court below found generally for the defendant. Helen Mann, dismissing plaintiff’s bill, from which finding and judgment plaintiff prosecutes his appeal.

The issues presented here group themselves logically under the following propositions: It is affirmed on one side and denied on the other that Mann was insolvent at the time of the conveyances to his wife, and that the said conveyances were a part of a fraudulent scheme to hinder and defraud his creditors. And it is affirmed on the one side and denied on the other that the deeds to Helen Mann were made in pursuance of an oral antenuptial agreement, having marriage as a consideration, and that such antenuptial oral contract, if existing, consummated by conveyance after marriage, would be effective as against creditors, prior or subsequent.

As this is an equity case to be considered de novo, by .us, and, under the rule that we should defer somewhat to the superior position of the chancellor, nisi, in weighing oral testimony, it will not be essential to waste time upon mere, questions of admissibility of evidence suggested by counsel, pro and con, because the evidence itself is here — the irrelevant, we can discard ; the relevant, we can consider.

From the above free outline of the case and the foregoing general issues presented for consideration, such a line of cleavage in fact, and possibly in the law applicable to the facts, between the two conveyances under which the wife claims, suggests itself as to point to the wisdom of a separate consideration of the Eaton Place property.

I. Attending, then, to the conveyance from Miles to his sister, Mrs. Mann, the consideration for which, $1,500, moved from Mann to Miles — the existing incumbrances being reduced by Mann’s payment of an additional $1,500 before yuletide of the same year, 1894— should that conveyance be set aside and the record title of Mrs. Mann be vested out of her and into Welch, the purchaser at the sheriff’s sale under the Fish judgment? We think not. And this for the following reasons :

(1) In the first place, a closer presentation of the facts pertaining to Mann’s insolvency will appear presently in the consideration of the second conveyance to Mrs. Mann. It will suffice for present purposes to say that on September 24, 1894, Mann was apparently a prosperous and solvent wholesale and retail confectioner in Kansas City; and that at that time he had entered into no contractual relations with Fish nor is there any hint he contemplated any such relations. On the one hand, it is inferable from the evidence that each and every of his then existing current debts was extinguished. As one hand washes the other, so these hypotheses must be held to neutralize each other. No creditor then existing complains, or has cause to complain, of this conveyance. Nor is there anything in the record to show that it was made to put to one side for a rainy day, i. e., out of jeopardy from a business enterprise in contemplation which might prove hazardous, any portion of Mann’s property.

The only suggestion made to us, said to point that way, is that, presently thereafter, Mann incorporated his candy business and that candy business, so incorporated, wrecked itself in the rise of a year, as will hereinafter appear. But we may not allow to this after-fact the significance desired by appellant; forasmuch as he has not carried, at least, one burden imposed upon him by the law, and that burden was to show in the absence of existing debts and insolvency, or later insolvency following from causes then operative, that this transfer to Mrs. Mann, with his subsequent payment on the incumbrances, was a contrivance to withdraw from the hazard of a contemplated and impending business venture the property in question; since, otherwise, a conveyance to his wife in the form of a gift of a modest portion of his property is not in the teeth or under the ban of any legal principles within our ken. That one must be just before being generous is not only a chip oft of a sound block of chimney-corner philosophy, but axiomatic in the law. However, it must also be remembered that when justice to creditors does not dam the waters of marital generosity, they may flow on in due channels, not a whit ruffled or impeded.

(2) In the second place, in a city of 40,000 inhabitants or over, and we take judicial notice of the fact that Kansas City comes within that class, a homestead, exempt from execution or attachment, is allowed of the value of $3,000. [R. S. 1890, sec. 3616; R. S. 1889, sec. 5435.] The value of the Eaton Place property, put at $5,000 at the time of trial, was put at the same figure in 1896. There is nothing from which we can conclude that at the time of the purchase of the equity in September, 1894, that equity was worth more than the $1,500 actually paid. So that, the property was susceptible of becoming a homestead and remaining a homestead even after the subsequent payment of $1,500 on the incumbrances. It goes without saying that such homestead might be abandoned and thereby become subject to execution levy arid sale. It will be seen from the facts heretofore uncovered that Mann and his family resided at 32 Eaton Place at the time of its purchase and thereafter for an undetermined time. Now, the testimony is obscure on the question of abandonment, as we read the record- In fact, no testimony was directed expressly to that point, though an abandonment is strongly to be inferred, nor is the homestead law in anywise invoked here as a protection for Mrs. Mann. She was living in St. Louis at the time this case was tried and had been for some time. Mann also resided there, having come from Duluth, and she procured her divorce in St. Louis. The question of homestead is introduced by us for a purpose soon to be seen. Thus: if it be conceded to appellant that Mann remained the beneficial owner of lot 32 Eaton Place, and if it be further assumed, merely arguendo, that it had never been abandoned as a homestead, then snch property would not be the subject-matter'of fraudulent disposition; for creditors are not concerned in the disposition of the homestead. [Balz v. Nelson, 171 Mo. 682; Stam v. Smith, 183 Mo. 464.] If, on the other hand (and this hypothesis is more to the point), no persons exist who were creditors of Mann in 1894, and who, armed with process, are pursuing their claims, and if Mann procured the conveyance to his wife of property that then became a homestead, exempt at the time from execution levy and sale by his subsequent creditors, why may not such conveyance to his wife remain invulnerable to assault from such creditors, or those standing in their shoes like "Welch, although it afterward lost its character as a homestead by abandonment? In other words, may a conveyance of a homestead to a wife, not fraudulent at the time made, become fraudulent in futuro? As this point was not discussed by counsel nor presented in briefs it would be unprofitable to pursue the inquiry, and we leave the matter with an expression of doubt on that proposition, and with the further suggestion that if a conveyance be fraudulent in law or fact, it would seem it needs must be so because of its relation, in praesenti, to other then existing facts. If innocent at the time made and if title then vested in the wife, is it consonant with wholesome reasoning to assert that by some legal necromancy presto! change! its birthright innocence is transformed into a sinister contrivance by proof of after-happenings?

(3) In the third place, there is proof that during Mann’s courtship he offered to convey property to Helen Miles if she would marry him. There is evidence tending to show that this offer was accepted and a marriage contract, based on that consideration, made and consummated. Such antenuptial contract, so looking to a settlement upon his wife to-be, is not in writing, is indefinite and without legal precision — no date is fixed for performance, no specific property is described, and it is proved alone by tbe “testimony of respondent, somewhat lacking in fullness. It may be said of this infirm contract that its specific performance could not have been enforced in court; that it was not only obnoxious to the Statute of Frauds, but was too indefinite and uncertain for enforced specific performance. The question of its enforced specific performance, however, is mere burnt powder and not in the case; because, here there was a domestic and voluntary specific performance — here the consummation of the contract is a fait accompli. Nor is a contract fully performed within the Statute of Frauds. [Maupin v. Railroad, 171 Mo. l. c. 197; Graff v. Foster, 67 Mo. 512; Bank v. Read, 131 Mo. infra.)

In the absence of actual fraud participated in by the wife, which is the case at bar, the present inquiry, it seems to us, may seek alone the consideration: Is marriage a sufficient, a valuable consideration1? The question is not new. Marriage is a sufficient consideration to support a conveyance. Such is the doctrine of this court (Bank v. Read, 131 Mo. 553) and elsewhere (Cohen v. Knox, 90 Cal. 266); and is the general rule (Bump on Fraud. Conv., 4 Ed. sec. 266). In the Cohen case it is said: “Marriage being in its nature permanent, and being the most important of all civil relations, the law will not lightly allow the inducements which have led up to it to be disturbed.” And, again: “Marriage is the highest and most valuable of considerations ; and when a conveyance is made upon such consideration, the grantee, if guiltless of fraud herself, is in at least as firm and sure a position as if she had paid in money the full value of the property conveyed.”

It would not seem pertinent to the conveyance now under consideration to say whether or not the indefinite, parol contract shown in this case, if allowed to remain, in abeyance for several years by the wife and to be consummated a long time after marriage, and after the rights of creditors had intervened, would be tolerated by the law; because, the conveyance in question was made three days less than a year after marriage; and, as said, the rights of no creditors had intervened either at the date of the deed or at the time of the subsequent payment of $1,500 on outstanding incumbrances.

It may be said that voluntary family settlements made by those not indebted are by the law favored more than any other species of conveyance, and are safe, against subsequent creditors, unless made with a present fraudulent intent, participated in by both donor and donee, that the donor is to become indebted, and to hinder and delay the collection of such future debts.

In our opinion the conveyance of lot 32 Eaton Place by Miles to Mrs. Mann ought to be sustained upon the reasoning advanced in this paragraph, as well as in the first paragraph of this subdivision of the opinion. And, accordingly, the holding of the chancellor, msi, is now sustained pro tanto.

II. We now approach the close question in the case, and that is, whether the conveyance by Mann to his wife on January 27, 1896, is impregnable to an attack from one standing in the shoes of Pish? — i. e., should the finding below be sustained in totof This question must be considered in the light of the foregoing general proposition that the law favors family settlements when not counter to business morals. We think, too, the following facts are established in this case, viz: (1) If Mann had a fraudulent design in making this conveyance, his wife did not participate therein. * She knew nothing of his personal insolvency or personal debts, if either existed. And (2) the conveyance was without consideration unless it be referred to the parol antenuptial agreement heretofore commented upon.

Keeping the foregoing in mind, as well as the other facts hereinbefore uncovered, it will be necessary at this point to state more fully some additional record facts.

It seems that prior to the 1st day of March, 1895, Fish, a lawyer and resident of South Bend, Indiana, was a subscriber to an underwriting insurance scheme , in New York, whereby he and an aggregation of fellow-subscribers became severally bound to pay, pro rata, certain contingent losses on certain insurance policies theretofore underwritten by said subscribers under the style of Indemnity Fire Lloyds. Policies underwritten by Fish and said aggregation were outstanding and other underwritings contemplated. Profits also stood on the books of said Lloyds to the credit of Fish, who being moved to withdraw from said scheme, on the 1st day of March, 1895, induced Mann to take his place, who, pursuant thereto, on said day executed the following instrument to Fish:

“Whereas, Frederick S. Fish, a subscriber to Indemnity Lloyds, has this day transferred to me by written assignment all of his rights and interests as a subscriber and underwriter at the Indemnity, transferring to me all his interests in any profits that may arise upon any and all business underwritten in his name at said Lloyds.
“Now, therefore, in consideration of such assignment, I do hereby agree to assume and discharge all of his liabilities upon and under any and all policies heretofore underwritten in the name of the said Frederick S. Fish at said Lloyds, and to hold him harmless therefor.
“In witness whereof, I have hereunto set my hand and seal this 1st day of March, 1895.
“Morris Mann. (Seal.)
“Witness: C. B. Gee.”

Thereafter losses occurred on such outstanding policies during November and December, 1895, and during January, March, April and May, 1896, and demands were made on Fish hy Indemnity Fire Lloyds to pay his pro rata assessment thereof. Fish put the matter to Mann by letter to which he paid no attention. Fish thereafter liquidated his liability and also paid a certain sum for a full release of all his contingent liability, and instituted suit on Mann’s said bond of indemnity in the circuit court of Kansas City, Missouri, on the 23d day of March, 1899, to recover said items of loss, amounting, as he contended, to $2,044.90, which suit, as said heretofore, ripened into a judgment in his favor on July 3, 1902, in the sum of $1,500.

Going back a little in Mann’s affairs, it seems that prior to September 29, 1894, he was in business in Kansas City, as a wholesale and retail confectioner as partner in a firm of Manning & Mann. Subsequently, about May, 1894, he purchased Manning’s interest and continued the business under the style of Morris Mann until September 29, 1894. His confection business is shown to have been the best in Kansas City, save one, as a retailer, and possibly the very best as a wholesaler. His-business reputation was excellent and, as presently to be seen, he was possessed of property and means to a considerable extent outside of his confection business. On September 29, 1894, he incorporated his said business under the style of Mann & Miles Manufacturing Company, authorized by its charter to do the business of manufacturing candies, crackers, cakes and extracts, and to engage in the wholesale and retail of cigars, candies, confections and extracts. The Mann & Miles Manufacturing Company was capitalized at $10,000, divided into one hundred shares of stock of the par value of $100 each, of which Mann owned ninety-seven shares, paid for by turning over to the corporation his assets as a confectioner and the good will of the business-then considerable — the corporation assuming his current business debts. The record is in a condition making it impossible to state the amount of these current business debts, but, we think, there is evidence upon which the chancellor could well base a finding that Mann’s business as a confectioner at that time was in a healthy condition and that no fraud was perpetrated or intended by incorporating it; that Mann’s stock in the corporation was worth par; and that the corporation, considering its assets, as well as liabilities assumed, was not overcapitalized and had a fair start in life. In one year, one month and sixteen days, to-wit, on November 15, 1895, this corporation went to the wall and made an assignment for the benefit of its creditors — its stock becoming waste paper. The claims allowed under the assignment were $10,273.89. The assets realized were $7,229.26. The dividend paid creditors was fifty-two cents on the dollar. It is insisted by appellant that the seeds of this disaster were planted prior to the birth of the corporation; that the corporation was not wrecked by the vicissitudes of its own business, but by the assumption of Mann’s individual debts — a vice said to be inherent in the scheme. It is insisted by respondent that a war in prices broke out between the Mann & Miles Manufacturing Company and other dealers of Kansas City, including a candy trust, and that the result of such razzia was ruin to Mann’s enterprise. Evidence was introduced tending to prove both appellant’s and respondent’s insistences.

Coming on down to January 27, 1896,. the date of Mann’s'deed to his wife, and attending to his personal debts then existing, the evidence is exceedingly dim and unsatisfactory. As we gather it, however, at that immediate time the only individual debt Mann owed, outside of the Fish obligation, was to the Bank of Commerce of Kansas City, $1,500, secured by Mann’s stock in a pie corporation known as the Ingram Pie Company, or the Homemade Pie Company. We do not understand (or hold) that said corporation made all the pies eaten in that great and hungry city, but we do understand from the evidence (and would be inclined to so hold, if necessary) that it had a monopoly in the making and selling of that sad and indigestible commodity known as commercial (as distinguished from political), pie — a commodity abounding in the marts of that town it is said and trafficked in for gain — a pie made of the Ben Davis apple (this is pure hypothesis and hence, obiter), split, dried and subjected to other forms of mysterious and unpalatable manipulation. In this pie concern Mann owned twenty-one or twenty-five shares of the par value of $100 per share, worth on the market dollar for dollar — witness thereto the testimony of one Pfeifer who, under the inspiration and sanction of his oath was allowed to adjudge its corporate solvency in the following formula: “The pie end of Mann’s business never busted.” If Mann owed individual debts other than those enumerated, the fact is not so well established by the proof as to be the predicate of a finding by the chancellor.

It will be unnecessary to go into the details of Mann’s individual assets, but it may be said that at the time of his conveyance to his wife he owned other real estate, unaffected by the conveyance, of the value of $1,520, some of it located near Wichita, Kansas, and some in Kansas City, and available personal assets in paper secured on real estate, in said pie stock and in other forms of assets, in the amount of $8,000. Respondent tabulates these assets and sums them up as above. Appellant’s learned counsel somewhat concedes the tabulation and estimate, while doubting its efficacy, by the following remarks in their brief: “A cursory examination of the table of assets found on page 5 of the brief of counsel for respondent clearly shows that Mr. Mann did not retain under the conveyance to'his wife of January 26, 1896, ample means with which to meet his existing debts as required by law and fair dealing in order to validate a voluntary conveyance to his wife.” It may further be said that in the tabulation of assets by respondent’s counsel there is an item of Arizona mining stock put in at $1,000, which, in our opinion, should be much pared down. It may be said on the other hand that there were some odds and ends belonging to Mann, akin to chips and whetstones, yet of some appreciable value, which are not included in the foregoing tabulation of assets. Take it by-and-large, we should say that Mann’s individual personal assets would be more fairly stated at, say, $7,500. But as this included the Ingram pie stock which was hypothecated for $1,500, the latter sum should be deducted from the foregoing assets, leaving, say, $6,000. If we add to this the value of the real estate retained by him, there would be left assets to the amount of $7,500' to respond to- the Fish obligation, adjudged to be $1,500.

The value of the parcels of real estate conveyed to Mrs. Mann by her husband’s deed of January 27, 1896, arrived at partly by the evidence and partly by concession and inference, may be placed as follows: Mt. Evanston property, $1,500; Phillip’s Place -property, $1,000 to $1,500; tract “ A, ” $2,500. It is but just to say the estimate of tract “A” is taken from respondent’s brief. We find no evidence directed to its value. It is but just to say further that appellant’s counsel insist that the above estimate, which coincides with the- consideration placed in Mann’s deed to his wife, is much too great, but appellant does not put his finger on specific evidence bearing out that contention, and we have been unable to find it, though Mann, as a witness, intimates that the values going to make up the $5,000 consideration were somewhat sentimental. He does not qualify as an expert on values and our chief reliance, outside of the value placed on tract “A,” is upon the evidence of a Mr. Shryock, who impresses us as a fair and competent witness. As to tract “A,” it may be said that it sold at a sheriff’s sale for $600 under the same conditions that the Eaton Place tract sold for $150, the Mt. Evanston tracts for $200, and the Phillip’s Place tract for $300. Taking into consideration the proof as to the actual value of these latter tracts, the bid on tract “A,” so far as significant at all, would indicate a proportionate actual value in the neighborhood of $2,000 or $2,500. In the absence of a more satisfactory basis, we may be permitted to arrive at a value by seizing on the best means presented to us in the record.

Assuming, then, that the value of the real estate conveyed to Mrs. Mann was either $5,000, or approximately that; assuming, too, that Mann retained in hand at that time $7,500 in real estate and personal property; and also assuming that Fish was his creditor in the sum of $1,500 at the time he made the conveyance in question, ought the conveyance to stand? We think so, because:

(1) Within the purview of laws leveled against fraudulent conveyances, Fish must be held a creditor from the date of Mann’s contract of indemnity, March 1, 1895 — at least a technical and contingent creditor within such purview. The contingent indebtedness contemplated by that contract, when the liability matured, must be referred back to the date of the contract itself. [Frees v. Baker, 81 Tex. 216; Ridler v. Ridler, 22 Law Rep. (Ch. D.) 74; Van Wyck v. Seward, 18 Wend. 375; Howe v. Ward, 4 Me. 195; Bump on Fraud. Conv. (4 Ed.), sec. 506; Johnson v. Murphy, 180 Mo. l. c. 613, et seq.]

But conceding that Fish was a creditor, and that appellant as a purchaser under Fish’s judgment may invoke the aid of that fact, yet such concession does not settle this case, and this is so for the reason that a conveyance, before being overthrown at the suit of a creditor, must be afflicted by the infirmity of fraud in fact or in intent; and before a voluntary settlement upon a wife may be avoided by such creditor, it must be shown that it was conceived and executed for a fraudulent purpose, or that it had the effect of perpetrating a fraud. In this case we find evidence upon which a suspicion of fraudulent intent on Mann’s part might be based, but evidently it was not satisfactory to the chancellor below, nor is it to us. That the Mann & Miles Manufacturing Company became insolvent and was in that condition at the date of the deed is obvious, but Mann was not bound individually for the debts of that concern and its financial condition and its relation toward its corporate creditors may not have controlling force in this litigation; for it is res inter alios acta. We say the evidence might create suspicion of a fraudulent intent, and we say so because that evidence was elicited from Mann himself by deposition. We can not close our eyes, however, to the fact that Mann at the time he testified was dealing at arm’s length with his wife and her affairs. He was not a friendly witness, as that term is known to the law, and his testimony must be sifted and weighed.

We rest content with the finding of the chancellor, necessarily implied, that Mann’s deed to his wife did not have its origin in a fraudulent purpose.

(2) Was such deed fraudulent in fact? Did it operate as a fraud upon creditors'? The mere fact of a present indebtedness is not conclusive, because the extent of his debt-paying ability remaining has to be considered in answering this question, and the extent of said present indebtedness is a factor. The English rule is stated by Mr. May [May on Fraud. Conv. (2 Ed.), *50] thus: “Where, at the time when the settlement was made, there remained property, not included in it, ample and available for the payment of debts, and no special circumstances of fraud, how can it be said that any creditor was either defrauded or delayed by the settlement? If lie had at once taken steps to recover the amount due to him, the settlement would have been no obstacle to his getting his money; jmt if he neglects to do that, and waits until, by a reverse of circumstances, the settler becomes embarrassed, it is his own laches, and not the settlement, which has prevented him from being paid in full.” And again, the same author (* 55), says: “The amount of property withdrawn by the settlement from liability to the claims of creditors must be taken into consideration; for a person may, although indebted at the time, settle some portion of his property, provided that enough is left for satisfying his.debts.” The same auhtor (*57) says: “In examining the position of the settle'r’s affairs, the true test is, what is the nature and extent of his liability at the time of making the settlement? Those liabilities, whether they consist of debts actually due, or soon due or of merely remote and contingent liabilities, must be estimated as a reasonable and not sanguine man would estimate them, taking a reasonable view of what seems likely to happen. ■. . . The question is varied also by the nature of the debt owing; the existence, for example, of a mortgage debt is of no importance.”

The American rule is stated the same way, stress being laid upon'“ample means” remaining and upon such a condition of his means that payment can be enforced by process of law. [Walsh v. Ketchum, 84 Mo. l. c. 430-1; Eddy v. Baldwin, 32 Mo. 369.] A voluntary conveyance is not fraudulent per se as to existing creditors. [Pepper v. Carter, 11 Mo. 540.] The circumstances of each case must be considered. And see, for an elegant formulation of the principles of law governing this question, 14 Am. and Eng. Ency. Law (2 Ed.), 301, et seq., cited approvingly by Brace, J., in Johnson v. Murphy, 180 Mo. supra.

Applying the foregoing principles to the facts of this ease, it will appear that Mann’s debt to the Bank of Commerce must not be taken into account, because it was secured by a collateral pledge of greater amount. It is on tbe same foot as a mortgage debt under tbe rule laid down by May. Tbis leaves to be reckoned witb bis liability to Fisb alone. Considering tbat, we are not prepared to say that a man wbo has reserved so much as $7,500 to answer to a liability of $1,500 may not, by a voluntary settlement upon his wife, part witb $5,000 of bis estate. To tbis complexion tbe case comes, and we so bold.

(3) While not necessary to tbis decision, and, hence, somewhat by tbe way, yet, in a given case, we might lay some stress upon tbe proposition tbat while a judgment creditor is within bis strict legal right in enforcing bis judgment by execution levy and sale against property held in tbe name of another, which be contends such other person is seized of to tbe use of bis grantor —tbe judgment debtor — and while a purchaser at such execution sale may thereafter lodge bis bill to get aside a conveyance in tbe road of bis sheriff’s title (Lionberger v. Baker, 88 Mo. 447; R. S. 1899, sec. 3171); nevertheless, as a final resort must be made to a court of conscience to clear up tbe title, tbe more gracious way is to give tbe conscience of tbe chancellor full play by going there first. Tbe modern practice, tbe more equitable and, hence, tbe better course is, after judgment and before execution levy and sale, to bring a suit to set aside tbe alleged voluntary conveyance, and, if successful, then subject tbe property to execution process; because by the former course there would naturally result a great sacrifice of tbe property, for tbe tendency would be to restrict bidding to a class limited to tbe speculative few wbo know, or think they know, tbe facts or shrewdly guess tbe same. Because, too, such course presents to tbe record-owner tbe horns of a dilemma-one bom being tbat by bidding be may thereby furnish evidence tending to prove the judgment debtor tbe true owner; the other horn being that if he neglects to hid, the property, which he may hold through no actual fraud on his part, may he lost to him because of a state of affairs afterwards, and for the first time, shown to exist when the title is tried. Take this case: here several thousand dollars worth of property was sold for a small sum, and while inadequacy of consideration alone may not he a ground of equitable interference, yet, coupled with other incidents, it may help to persuade a chancellor’s decree.

The judgment is affirmed.

All concur.