author: WILLIAMS, J.

text:
    IN MATTER of Application of LUELLA HARTMAN, Guardian and Adopted Parent of AERIEL HARTMAN, for Writ of Habeas Corpus, v. GOTHARD E. HENRY, MABEL W. HENRY and E. L. MATHIAS.
    In Banc,
    January 26, 1920.
    1. HABEAS COKPUS: Jurisdiction. Where a party who is in confinement under judicial process is brought before another court on writ of habeas corpus, the primary inquiry is whether the court issuing the process under which the party is detained had jurisdiction of the case and acted within that jurisdiction in issuing the process; and if so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded, and the writ denied.

      2. -: -: Juvenile Court: Child Previously Committed by Court of Another State. Where a child sought to be released by writ of habeas corpus is held in custody by respondents in obedience to legal process of a juvenile court, and the validity of the Juvenile Court Act is not assailed and no defect in the proceedings in the juvenile court which would render its process void is pointed out, the fact that the juvenile court of another state had on a prior occasion made, an order appointing petitioner guardian of the child and awarding the child to petitioner’s custody, does not affect the jurisdiction of the Missouri court, for the jurisdiction af the Missouri court is not created or destroyed by anything that occurred in the court of the other state, and the writ must be denied.
    3. -: -: -: -; Full Faith and Credit: Error. If the proceeding of the court of another state whereby the custody of the neglected child had been awarded to petitioner were one coming within the full-faith-and-credit clause of the Federal Constitution, it would not oust the Missouri Juvenile .Court of jurisdiction to commit the child to respondents, but present merely a question for the Missouri court’s determination, and if it erred in its ruling thereon the errbr could be corrected only by the court which made the error, or by a direct appellate proceedings. Habeas corpus cannot be substituted for an appeal or writ of error.

      Habeas Corpus.

    Writ quashed.

      Frans F. TAndquist for petitioner. '
    (1) Proceeding’s in the Juvenile Court and the Pro-hate Court of Wyandotte County, Kansas, are entitled to full faith and credit in this State. Sec. 1, Art. IV, II. S. Constitution; Section 905; U. S. Revised Statutes; Chapter 190, Laws of Kansas, 1905'; In re Hollinger v. Eldridge, 90 Kan. 77; Mills v. Duryee, 7, Crunch. 481; Marin v. Angedahl, 247 U. S. 142, 38 Sup. Ct. Rep. 452; Tootle v. Buckingham, 190 Mo. 183; In re Mary Turner, 94 Kan. 115; Bleakley v. Barclay, 75 Kan. 462. (2) It is a well- settled rule in Missouri, that where one court has acquired jurisdiction over the res in an action in rem, another court has no power to interfere. State ex rel. v. Ross, 122 Mo. 435; State ex rel. v. Blarnett, 245 Mo. 99; State ex rel. v. Reynolds, 299 Mo. 161; State ex rel. v. Landis, 173 Mo, App. 198.

      Sebree, Conrad, é Sebree for respondents.
    (.1) The Juvenile Division of the Court of Jackson County, Missouri, is given jurisdiction to determine whether a child is neglected, and provision is made that both the natural and legally appointed guardians be made parties. Laws 1911, pp. 177 to 186. (2) Not only is the Juvenile Court given jurisdiction to try and pass upon the issues of neglect and delinquency, but in the^ event the decision is unsatisfactory to those at interest, provision is made for an appeal from such adjudication by Section 20 of said act. (3) Habeas corpus cannot operate as a .writ- of error, or as an appeal. Ex Parte McLaughlin, 108 S. W. 626; Ex Parte Campbell, 197 S. W. 1058.
   WILLIAMS, J.

This is an original proceeding-under the Habeas Corpus Act, whereby petitioner seeks to obtain the custody of a female child named Aeriel Hartman. The child was about six years of age at the time this proceeding was instituted.

The petitioner, Ljiella Hartman, is a resident of Wyandotte County, Kansas, and is the grandmother of the child. The mother of the child is dead. The respondent E. L. Mathias is the probation officer of the Juvenile Court of Jackson County, Missouri. Respondents G-othard E. and Mabel W. Henry are husband and wife, residing in Jackson County, Missouri, and now have the custody of the child by virtue of a judgment of the Juvenile Court of Jackson County, Missouri.

In the year of 1916 proceedings were had in the Juvenile Court of Wyandotte County, Kansas, and said court found that said child was a dependent and neglected child, that its mother was ■ dead and that the child’s father, Dr. Milo E. Hartman, was not a proper person to rear the child. The court thereupon appointed the grandmother, the petitioner herein, the guardian of said child and placed the custody of said child with said grandmother. Later, and . on October 25-, 1918, said grandmother (petitioner herein) adopted said child by and with the written consent of the' child’s father.

On Juné 9, 1917, respondent E. L. Mathias, then the probation officer of the Juvenile Court of Jackson County, Missouri, found said child in a neglected condition on the streets of Kansas City, Missouri, and said E. L. Mathias made the proper complaint to the Juvenile Division of the Circuit Court of Jackson County, Missouri.

On the 25th and 26th of February, 1919, a trial of the cause was had in the Juvenile Division of the Circuit Court of Jackson County, Missouri, then presided over by the Hon. Allen C. Southern. At that hearing both Milo E. Hartman, the father of the child, and Huella Hartman, the Kansas guardian and grandmother of the child (petitioner herein), appeared in person an l were represented at the trial by counsel. Upon a full hearing said court entered a judgment in the matter, which is in part as follows:

“The evidence herein being concluded and the court being fully advised in the premises finds the allegations in the complaint or petition,-filed on June 9, 1917, true; and that Aeriel Hartman was at the timo a neglected child in Kansas City, Jackson County, Missouri, under the statutes of the State of Missouri, providing for neglected children, and that her father, Doctor Milo E. Hartman, was not then, nor has not been since,.and is not now a proper person to have custody of said child, Aeriel Hartman, and that the grandmother, Huella Hartman,- was not then, and has not been since, and is not now, a proper person to have custody of the child, Aeriel Hartman.
The child, Aeriel Hartman, is made a ware] of the Juvenile Court of Jackson County, Missouri. And the court finds that Gothard E. Henry and Mabel W. Henry, his wife, are fit and proper persons to have custody of said child for the present time; and the child, Aeriel Hartman, is remanded to them for such custody until the further order of the Juvenile Court of Jackson County, Missouri.”

Thereupon and on the 10th day of April, 1919', petitioner filed the application here for the writ of habeas corpus. The writ was duly issued by this court on the 26th of April, 1919, and thereafter respondents filed their return herein.

Divers motions have been made by the respective parties, but the cause was finally submitted upon oral' argument and the motion of petitioner for judgment on the pleadings. Upon the issues thus formed the ease will be determined. Any further facts necessary to an understanding of the questions involved will be stated in the course of the opinion.

r Prom the foregoing facts it appears that the child sought to be released by our writ, is held in custody by the respondents in obedience to legal process from the Juvenile Court of Jackson County, Missouri, ,. , , , . , y ,, _ operating under and by virtue o± tbe Juvenile Court Act of 1911. [Laws of Mo. 1911, p. 177 et seq.]

The general rule, here applicable, has been stated by eminent authority as follows:

“Where a party who is in confinement under judicial process is brought up on habeas corpus, the court or judge before whom he is returned will inquire: 1. Whether the court or officer issuing the process under which he is detained had jurisdiction of fhe case and has acted within that jurisdiction in issuing such process. If so, mere irregularities or errors of judgment in the exercise of that jurisdiction must be disregarded on this writ, and must be corrected either by the court issuing the process or on regular appellate proceeding.” [Cooley’s Constitutional Limitations (4 Ed.), p. 430.] To the same general effect are Sections 2472 and 2474, Revised Statutes 1909; also the following authorities: State ex rel. v. Dobson, 135 Mo. l. c. 12; Church on Habeas Corpus (2 Ed.), par. 236; 1 Bailey on Habeas Corpus, par. 30; 12 R. C. L. 1240.

Petitioner does not attack the validity of the Juvenile Court Act of 1911, nor does she point out any defect in the proceedings which would render the process of the Junevile Court void, but as we understand petitioner’s position it is that since it is claimed that the Juvenile Court of Wyandotte County, Kansas, had, on a prior occasion, made an order appointing petitioner guardian of said child and awarding petitioner the custody of said child, therefore the Juvenile Court of Jackson County, Missouri, when it afterwards found the' child neglected upon the streets of Kansas City, Missouri, had no jurisdiction to determine what was best for the welfare of the child and award the custody of the child accordingly, but should haye surrendered the child into the custody of petitioner, the alleged guardian and custodian by appointment of the Kansas court.

We are unable to agree with this contention. The alleged action of the Kansas court did not present a jurisdictional question. The jurisdiction of the Missouri court was certainly not created or destroyed by anything that occurred in the Kansas court. Even if it be conceded arguendo, as it is earnestly insisted by petitioner, that the proceeding in the Kansas court is one coming within the provisions of the full-faith-and-credit clause (Sec. 1, Art. IV) of the Federal Constitution, it would not oust the Missouri court of jürisdiction, but would merely present a question for • the Missouri court’s determination, and if the Missouri court erred in its ruling thereon the error (applying the rule announced by the authorities above stated) could be corrected only by the court which made the error, or by a direct appellate proceeding. It is well settled that “the writ of habeas corpus cannot be substituted to perform the office of an appeal or writ of error.” [Ex parte Buckley, 215 Mo. 93, l. c. 100.]

All these questions then concerning the faith and credit to be given the Kansas proceedings, as well as questions of comity and questions as to the status of the child and its welfare, were questions upon which the Juvenile Court of Jackson County, Missouri, had jurisdiction to pass, and its action thereon, if merely erroneous, should be corrected by an appeal, as the Act provides (Laws 1911, p. 185, sec. 20), and not by this, a collateral proceeding, by writ of habeas corpus.

It therefore follows that the writ should he quashed and the child should be remanded to the custody of respondents, G-othard E. and M'abel W. Henry.

It is so ordered.

All concur.


source: Caselaw Access Project

author: BLAIR, P. J.

license: Public Domain

text:
    T. M. MONROE, Appellant, v. CHICAGO & ALTON RAILROAD COMPANY et al.
    Division One,
    March 2, 1920.
    1. ABSTRACT: Motion for New Trial. If the short transcript shows that the motion for a new trial was filed in time, that is sufficient, whether or not the printed abstract of the record proper fails to show it was so filed.
    2. NEGLIGENCE: Speed of Train: In Excess of Ordinance Rate. If the village ordinance restricted the speed of trains to eight miles an hour the running of a train at the rate of forty-five miles is negligence.
    3-. -: Burden of Proof: Preponderance: Shifted by Statute: Instruction. After plaintiff, whose automobile was struck at a street crossing by defendant’s train, has offered evidence tending to show no signal was given, the statute (Sec. 3140, R. S. 1909) relieves him from the burden of proving that the failure to give the proper signal was the cause of his injury, but supplies the causal connection, and places upon defendant the burden of proving that the violation of the statute did not cause' the injury; and, therefore, an instruction given at defendant’s request telling the jury that “the burden is upon plaintiff to prove his case by a fair preponderance of the credible testimony introduced, and if a fair preponderance of such testimony is in favor of the defendant, or if it is equally balanced, then, it is your duty to return a verdict in favor of defendant,” deprived plaintiff of the benefit of the statute, and was erroneous. Even if the instruction could fairly be construed to require plaintiff to prove those facts which the law requires him to establish, that would call for a legal construction of its language, and require the jury to choose between interpretations, which in the administration of justice juries ought not to be required to make.
    4. CONTRIBUTORY NEGLIGENCE: Instruction: Common Error. An instruction for defendant to the effect that if plaintiff was negligent “and that negligence, if any, contributed in the least degree to his injuries,” the verdict must be for defendant, and one for plaintiff, authorizing a recovery upon stated facts, “unless you believe from the evidence plaintiff was guilty of negligence which contributed to his injury,” contain the same common vices.
    5. -: How Far a Bar. Contributory negligence, to bar recovery by plaintiff, must enter into and constitute some part of the whole negligence which is the efficient or jjroximate cause of the injury.
    6. -: Avoiding Approaching Train: Instruction. An instruction for defendant railroad telling the jury that trains have the right of way at crossings, “and it is therefore the duty of a traveler attempting to cross a railroad track to ascertain, 'if possible, the approach of a train and keep off of the track, so as to avoid a collision,” requires the traveler to exercise ever more than the highest degree of care, in effect is a direction to find for defendant, and would be erroneous in any crossing case which is submissible to the jury.
    7. NEGLIGENCE: Restricting Case to One Negligent Act: Speed and Signal. An instruction authorizing a verdict for defendant regardless of the failure to give the proper signal, if the jury find the violation of the speed ordinance was “not the real and direct cause of the injury,” is erroneous, in view of the evidence that the train was running forty-five miles an hour and no signal of any kind was given.
    8. CONTRIBUTORY NEGLIGENCE: Driving Automobile: Duty to Stop: Question for Jury. The failure of the driver of an automobile to stop before crossing a railroad track at a public crossing does not of itself authorize the court to declare as a matter of law that he cannot recover for injuries sustained in a collision with a train. The statute (Laws 1911, p. 330) requiring him to exercise “the highest degree of care which a very careful person would use under like or similar circumstances” substitutes a higher standard of care than ordinary care, but it does not destroy the principle that before the court can declare contributory negligence is shown as a matter of law such negligence must appear from admitted or clearly proven facts. In spite of the language of the statute, the rule still obtains that, if the facts are not conclusively established, or if reasonable men may honestly differ in inferences to be drawn from the facts, the question whether the requisite care was observed by the driver of the automobile is for the jury.
    9. -: -: Highest Degree of Care Defined. The language of the statute (Laws 1911, p. 330) requiring the driver of an automobile approaching a street crossing to exercise “the highest degree of care that a very careful person would use under like or similar circumstances” does not mean the highest degree of prudence or skill which could be conceived of as possible to man, but the highest degree which has been demonstrated by experience to be practicable.
    10. -:-:-: Inference to Be Drawn From Facts. Where there is evidence tending to show that, as the driver of an automobile approached a public railroad crossing, his car was under control, that he looked and listened continually, that no signals were given by defendant, that no transient noises or temporary obstructions interfered with hearing or vision, that he did not commit himself to the crossing until the front of his car was very near the track, and then only when he saw no approaching train and saw enough of the track to make it clear beyond doubt that a train running at ordinance speed could not reach the crossing before he had passed safely over it, and that the automatic bell or gong remained silent, though no warning that it was out of order Was posted, the court cannot declare as a matter of law that he so failed to exercise the highest degree of care required by the statute as to bar a recovery for his injuries, since reasonable men might honestly believe his conduct satified the. statutory requirements.
    11. INSTRUCTION: Susceptible. of Different Legal Constructions. An instruction so drawn as to be susceptible of different legal constructions, and therefore requiring the jury to choose between different interpretations of it, should not be given.
    Appeal from Audrain Circuit Court. — TLon. J. D. Barnett, Judge.

      Reversed and- remanded.

      Fauntleroy, Cullen <& Ray for appellant.
    (1) The court erred in giving the instruction for the defendant placing the burden of proof upon plaintiff to show that the violation of the statute, in failing to give signals, was the cause of the accident. McNulty v. Railroad, '203 Mo. 477; Green v. Mo. Pac. Ry. Co., 192 Mo. 142; Huckshold v. Ry. Co., 90 Mo. 556; Kerr v. Bush, 198 Mo. App. 611. (2) The court erred in instructing the jury that any degree of negligence contributing in the least degree, would bar plaintiff’s right to recovery. Howard v. Scarritt Estate Co., 267 Mo. 398; Moore v.v Rapid Transit Co., 126 Mo. 265; Oates v. Metrop. Street Ry. Co., 168 Mo. 547; Chicago & E. I. Railroad v. Randolph, 65 N. E. 142; Harvey v. C. & A. Ry. Co., 116 HI. 509. (S’) The court erred in instructing the jury that the plaintiff could not recover if he failed to do everything humanly possible, whereas he was required to use ordinary care only. Railway v. Trich, 117 Pa. 390, 2 Am. St. 674. (4) The court erred in instructing the jury that plaintiff could not recover if he discovered the danger when it was too late to stop or to avoid a collision.

      A. C. Whitson and Charles M. Miller for respondents.
    (1) Appellant’s abstract of the record entries is insufficient to permit this court to review anything but the record proper for the reason that it fails to show that a motion for new trial was filed within four days from the date of verdict and during the term. Huston v. Allen, 236 Mo. 645; Harding v. Bedoll, 202 Mo. 6|34; Hill v. Butler Co., 195 Mo. 514; Pippard v. Cook, 203 S. W. 236. (2) The verdict and judgment are for the right parties and that the court erred in not peremptorily instructing the jury to return a verdict in favor of the defendants on the ground that plaintiff was guiltv of negligence as a matter of law, barring any recovery. The cases which bear upon the negligence of the driver of a team at a railroad crossing are not applicable irrespective of this statute to a person driving an automobile over a railroad crossing. Maidment v. Railroad, 168-Fed. 21, 21 L. R. A. (N. S.) 79'4; Bromm'er v. Railroad, 17<9 Fed. 577, 29 L, R. A. (N. S.) 924; Dernberg v. Railroad, 234 Fed; 405; William v. Railroad, 102 Kan. 271. If the view was restricted so that plaintiff could not see, he should have stopped his automobile and engine and made observations, which he did not do, and by reason thereof was guilty of negligence. Under the statute he was required to exercise the highest degree of care, and can it be said he was not guilty of negligence as a matter of law? Osborn v. Railroad, 179 Mo. App. 260; Underwood v. Railroad, 182 Mo. App. 262. See also Kelsey v. Railroad, 129 Mo. 372; Yandeventer v. C. & A., 177 S. W. 834; Stottler v. C. & A., 204 Mo. 619. (3) Defendants’ instruction on the burden of proof is correct and proper. The burden of plaintiff is limited to proving “his case.” The opinion on its face in the McNulty case is erroneous and should not be applied to the case at bar.
   BLAIR, P. J.

This is an action for damages for injuries sustained by plaintiff when Ms automobile was struck by one of defendant’s passenger trains at a street crossing in the village of Laddonia. The verdict and judgment were for defendant, and plaintiff appealed. The facts appear in the opinion.

I. The point is made that the abstract of the record proper fails to show that a motion for new trial was filed in time. The fact is shown by the short transcript, and this is sufficient. [State ex rel. Caruthers v. Drainage District, 271 Mo. 429; Mason v. Hutchison, 201 S. W. 593; Pippert v. Cook, 203 S. W. 236.]

II. A village ordinance restricted the speed of trains to eight miles per hour. There is evidence the train in question was running at the rate of forty-five miles, or more, per hour, and that no signals °i" any kind were given. Defendant does not deny there was evidence tending to show negligence on its part.

III. At defendant’s request the court instructed the jury that “the burden is upon plaintiff to prove his case by a fair preponderance of the credible testimony introduced, and if a fair preponderance of sncli testimony is in favor of the defendant, or if it be equally balanced, then it is your duty to return a verdict in favor of defendant.” The statute in force (Sec. 3140, R. S. 1909) relieved plaintiff, after he offered evidence tending to show no signal was given, from the burden of proving that the failure of defendant to give the proper signal was the cause of his injury. “The statute supplies the causal connection.” [McGee v. Railroad, 214 Mo. l. c. 544, 545.] It throws upon defendant the burden of proving the violation of the statute did not cause the injury. [Green v. Railway, 192 Mo. l. c. 143.] The causal relation between the violation of Section 3140 and plaintiff’s injury is an essential element of his case. It is no less so because the statute supplies it prima-facie. When the court told the jury that plaintiff must prove his case by a “fair preponderance of the testimony” it deprived him of the benefit of the statute. [McNulty v. Railroad, 208 Mo. 475; Kerr v. Bush, 198 Mo. App. l. c. 611, et seq.] The instruction excludes the presumption the Legislature introduced. Even if it could be reasoned that the instruction could fairly be construed to require plaintiff to prove only those facts which the law requires him to establish by evidence, yet this conclusion would depend upon a legal construction of the language of the instruction and a choice between interpretations which, in the practical administration of justice, a j'ury ought not to be required to undertake. The instruction was errone^ ous. Defendant also contends the error was invited. There is in plaintiff’s instructions no reference to the burden of proof except in connection with the issue of contributory negligence.

IV. For defendant an instruction was given to the effect that if plaintiff was negligent “and that negligence, if any, contributed in the least degree to his injuries,” the verdict must he for defendant. In another instruction the words “in any degree” apPGar instead of the words “in the least degree.” In instructions for plaintiff a recovery was authorized upon stated facts, if found, “unless you believe from the evidence plaintiff was guilty, of negligence which contributed to his injury,” etc. The vice of plaintiff’s instructions is the same as that of defendant’s, and of invited or common error complaint may not effectually he made. On another trial these errors can be avoided. Contributory negligence, to bar a plaintiff, must enter into and constitute some part of the whole negligence which is the efficient or proximate cause of the injury. [Howard v. Scarritt Estate Co., 267 Mo. 398; Oates v. Railway, 168 Mo. 547.]

V. One of defendant’s .instructions was to the effect that trains have the right of way at crossings “and it is therefore the duty of a traveler attempting to'cross a railroad track-to ascertain, if possihie, the approach of a train and keep off the track so as to avoid collision.” In defendant’s brief it is said this means “if by looking and listening he would have been aware of the approaching train and could thereby have avoided the injury.” It seems to us this instruction goes further than to require even the very highest degree of care. It is, in effect, a direction to find for defendant. It is always possible. for one about to cross a railroad track to discover whether a train is approaching. In any crossing case which is to he submitted to a jfiry pd all this instruction would he erroneous.

VI. Instruction six authorizes a verdict for defendant, regardless of the failure to give the proper signal, if the jury find the violation of the speed ordinance was “not the real and direct cause” 'aláurV There are other errors in the instructions given for defendant, and in some given for plaintiff, but these fall within principles announced in this opinion, or are of such character that they are correctible by the application of simple principles, and need not be considered in detail.

VII. Defendant contends plaintiff was guilty of contributory negligence as a matter of law, and the judgment must therefore be affirmed, regardless of errors on the trial. “The rule, however, in regard to contributory negligence of the injured party remains the same in this class of cases as in others.” [McGree v. Railroad, 214 Mo. l. c. 544, 545; Kerr v. Bush, supra.] Defendant’s argument is that (1) the statute (Laws of 1911, p. 330) imposed upon plaintiff a high degree of care; (2) the driver of an automobile, because of the nature of his vehicle, is subject to a stricter rule than applies to the driver of a horse-drawn vehicle, and a stop before crossing a railroad track is an absolute prerequisite to a recovery for injuries suffered there;- (3) the obstructions at the crossing imposed an absolute duty to stop; and (4) the evidence conclusively shows that had plaintiff looked he must-have seen.

Unless contributory negligence conclusively appears in such way that the trial court would have been justified in directing a verdict for defendant, this contention cannot be sustained. In this State it is the rule that it is the duty of one about to cross a railroad track to look and listen “and sometimes to stop in order the better to see and hear, yet it is not always incumbent upon him to stop for that purpose; whether he should do so in a given case depends on the circumstances, and if it is doubtful the jury are to judge of it.” [Campbell v. St. Louis Ry. Co., 175 Mo. 161; Stepp v. Railway, 211 S. W. 730.] The case last cited applies this rule to automobiles and cites other like cases. In Jackson v. Railroad, 189 S. W. 381, the rule was applied by this court to a motor cycle.

In this case there was evidence tending to show that the train was running through Laddonia at a speed of forty-five miles or more per hour, in violation of a valid ordinance (Sec. 9436, R. S. 1909; Robertson v. Railway, 84 Mr. 119) limiting the speed of trains in that village to eight miles per hour; that no signal by either bell or whistle was given; that an automatic gong at the crossing, where the injury occurred, was not ringing; that plaintiff approached the crossing at a speed of four miles per hour; that he listened and heard nothing; that he looked west and saw no train; looked east as soon as lie could after approaching near enough to the track for him to be able to see beyond cars upon a siding or spur track, and saw nothing; that he could see from this point over one hundred and forty feet of the track and could have seen the train, had it been there, at some greater distance; that at this time the front wheels of his automobile were about twenty feet, from the track; that had the train been running at or near ordinance speed his automobile, moving four miles per hour, would have cleared the track before the train could have reached the crossing; that he then saw nothing to indicate the approach of a train and listened, but heard no signals or train noises; that no transient noises interfered with his hearing the train; that when plaintiff reached a point where he could see three hundred and twenty or more feet down the track he could have stopped his automobile in time; that he was looking alternately east and west; that seeing no train within a distance of over three hundred feet and hearing no warning noise he then committed himself to the crossing; that the train would not have struck him had it not been running far in excess of ordinance speed; that he almost crossed safely, the rear of the automobile being struck by the engine.

(a) There is no doubt that under the rule applied to horse-drawn vehicles these facts would have made the question of contributory negligence one for the jury. The courts of Pennsylvania hold that a failure of the driver of an automobile to stop before crossing a railroad track bars an action for injuries he may receive. In that State, however, the same rule is applied to all vehicles and was so applied before automobiles came into use. The argument upon which those decisions rest is rejected in this State, as cases already cited show, and, unless we are to change our long established rule, cannot aid us in this case. Defendant adverts to the fact that in some states statutes have been enacted which require automobiles to stop in every case before crossing railroad tracks. Such statutes indicate a legislative belief that without such statute no such rule is in force. Two decisions of the Circuit Court of Appeals of the Third Circuit (Brommer v. Railroad, 179 Fed. 577; New York Central v. Maidment, 168 Fed. 21), hold that if one fails in any case to stop before driving an automobile upon a railroad crossing he is guilty of contributory negligence as a matter of law. Other courts refuse to follow these decisions. In Walters v. Railroad, 47 Mont. 501, the Supreme Court of Montana said: “Both of the decisions just cited” (Brommer and Maidment) “emanated from the Circuit Court of Appeals of the Third Circuit speaking through Judge Buffington, and they proceed upon the mistaken ideas that a railroad has some sort of a paramount right to the use of a public highway crossing, and that whether a citizen using the highway on approaching such crossing must stop, look and listen depends upon the motive power he is using and'its amenability‘to control; whereas the true rule, as we understand it, is that the citizen has an equal right with the railway company to use the crossing, and the amenability to control of the motive power he is using bears more properly upon how near he may come to the place of danger before taking the precautions that comtnon prudence generally requires. Of these cases nothing further need be said than this: If they are to be taken to hold, in the absence of express statute, that it is contributory negligence as a matter of law for the driver of an automobile not to stop, look and listen before using a highway crossing, without regard to whether ordinary prudence would require such a course, they are contrary in spirit to the rule announced by the superior authority of the Supreme Couil of the United States (Grand Trunk Ry. Co. v. Ives, 144 U. S. 408), are against the weight of general decision (Texas, etc., Ry. Co. v. Hilgartner, 149 S. W. 1091, and other cited cases) and are in conflict with the settled rule in this State” (citing cases). In Lockridge v. Railway, 161 Iowa, l. c. 85, the Supreme Court of Towa held that the failure of the driver of an automobile to stop before crossing a railroad track did not of itself bar the action; that whether the driver should have stopped “depends so much upon the peculiar conditions by which he is surrounded that, save in cases exceptionally free from doubt, the question of contributory negligence must be left to the jury, and an instruction that the failure to stop, look and listen at all points in his passage over railway crossings is contributory negligence, is erroneous.” In Pendroy v. Railway, 17 N. I). 433, the court reached a like conclusion in a similar ease, as did the Appellate Division of the Supreme Court of New York in Brooks v. Railroad, 177 App. Div. 290. Other decisions are to the same effect. [Hawkins v. Railway, 168 N. W. 234; Nichols v. Railroad, 168 N. W. 1046; Vascacillas v. Southern Pac. Co., 247 Fed. l. c. 11; L. & N. R. Co. v. Treanor’s Admr., 179 Ky. 337; Kent v. Railway, 183 Pac. 87; Fuller v. Railway, 173 N. W. 137; Railroad v. Schneider, 257 Fed. 675; Edwards v. Railway, 171 N. W. 873; Railway v. Wishard, 186 Ind. 262.] In Railroad v. Dove, 184 Ind. l. c. 455, 456; the Brommer and Maidment cases are referred to. The court holds that it is not the duty of one driving an automobile over a railroad crossing to stop in every case and under all circumstances, as a matter of law, in order to escape the bar of contributory negligence. It is said: “The fact that one is driving an automobile may have an influence on the question of contributory negligence, just as the number and quality of horses and the kind of vehicle one is driving may have; but the standard of care to be used which is necessary to absolve from) contributory negligence is the same” for all. The great weight of authority is with this view. [Huddy on Automobiles, sec. 567; Berry on Automobiles, sec. 419.] We' think better reason supports it. The character of the vehicle is relevant to the qrrestion whether its driver was in the exercise of the requisite care for his own safety.

(b) The decisions cited above were in cases in which the driver of an automobile was required by the applicable rule to exercise ordinary care for his own safety. Im this case, under the decision in Threadgill v. United Rys., 214 S. W. 161, a different standard of care applied to plaintiff, i. e. “the highest degree of care which a very careful person would use under like or similar circumstances.” In that case it is held this is the result of the statute. [Laws 1911, p. 330.] The effect of this act, as construed, is to substitute a higher standard of care for that of ordinary care. It does not destroy the principle that before the court can declare contributory negligence is shown as a matter of law such negligence must clearly appear from admitted or conclusively proved facts. If the facts are not conclusively established, or if reasonable men honestly may differ in inferences drawn from such facts, then the question whether the requisite care was observed by the driver! is for the jury. In all other than cases in which contributory negligence thus conclusively appears, it is the duty of the jury, in the light of all the facts, to test plaintiff’s conduct, as to this 'issue, by the applicable standard .of care, be it high or low. The “highest degree of care that a very careful person would use under like or similar circumstances,” which the statute (supra) prescribes, does not mean “the highest degree of prudence or skill which could be conceived of as possible to man. They are only held to the highest degree which has been demonstrated by ex-perienee to be practicable. ’ ’ [1 Shearman & Redfield on Negligence (6 Ed.), sec. 51.] Even in criminal cases, in which a reasonable donbt frees the accused, the case goes to the jury if the State has offered substantial evidence, and the jury then determine whether such evidence» satisfies them' beyond a reasonable doubt. If they so find, this court does not assume to set aside the verdict because there is not more than substantial evidence to support it. We cannot say, in this case, that reasonable men might not honestly believe plaintiff’s course satisfied the requirement of the statute. That he approached the crossing with Ms car under control, that he looked and listened continually, that no signals were given by defendant, that no transient noises or temporary obstructions interfered with hearing or vision, that plaintiff did not commit himself-to the crossing until the front of his car was very near the track, and then only when he saw no approaching train and saw enough of the track to make it clear beyond doubt that a train running at anything like ordinance speed could not reach the crossing before he had passed safely over it, and that the automatic crossing bell or gong remained silent, though no warning that it was out of order was posted — all this could have been found from the evidence. In view of this we think it was for the jury to determine whether plaintiff was guilty of contributory negligence, and whether such negligence, if found, entered into and constituted some part of the whole negligence which was the efficient or proximate cause of his injury. [Howard v. Scarritt Estate, supra.] If this is not true, then juries are to disappear from most crossing cases involving automobiles. We do not mean to be understood that the facts recited are established or that the jury ought to find them. We merely hold there is evidence which would, if believed, authorize such findings.

The judgment is reversed and the cause remanded.

All concur.


author: SMALL, C.

text:
    THE STATE ex rel. M. J. WHALEN, Appellant, v. JAMES T. PLATER, Comptroller.
    Division One,
    March 2, 1920.
    1. ST. LOUIS: Charter: Amendment: Inconsistency. By express constitutional provision the charter of St. Louis adopted in 1914 superseded the prior charter, and no part of the former charter remained in force except such as was affirmatively made a part of the new. The new charter automatically superseded all the provisions of the old, whether consistent or inconsistent. i

    2. -; -; -Municipal Assembly. The provision of the charter of St. Louis adopted in 1914 that “the present Municipal Assembly, with its present officers, or such as the respective houses may lawfully choose, under the present charter, shall continue until the first Monday in April, 1915, with all the powers and duties given to the Board of Aldermen by this charter, and subject to its provisions,” did not continue the Municipal Assembly, composed of two houses, with the powers, duties and functions, of- the former House of Delegates and of the Council, but continued its members as members of the Board of Aldermen, with all the powers and duties given to the Board of Aldermen by the new charter and subject to its provisions, which meant that the members of the Municipal Assembly were continued as one legislative body, having the powers and duties of the Board of Aldermen as prescribed by the new charter. The adoption of the new charter by the people was in legal effect the induction of the Assemblymen into the new office of Board of Aldermen.
    3. -: -: -: -: Salary: Increase: Constitutional Inhibition. The charter of St. Louis adopted in 1914 abolished the Municipal Assembly and the office of Assemblymen, and by the very act of adoption the members thereof were inducted into the neiv office of Board of Aldermen, and therefore the provision of the Constitution that “the compensation or fees of no state, county or municipal officer shall be increased during his term of office” has no application; but the member of the Municipal Assembly, who prior to the adoption of the charter received $300 a year, and was by said act of adoption inducted into the new office of Alderman, was entitled, by the terms of the new charter, to receive $1800 a year, until April 6, 1915.
    4. SALARY: Waiver: By Accepting Part. An officer who under the law is entitled to a larger salary does not, by accepting a part of the amount due under protest and claim of the balance, waive such balance. Such acceptance of a part is not a settlement or compromise of the claim.
    Appeal from St. Louis City Circuit Court. — Eon. Rhodes E. Cave, Judge.
    Reversed and remanded (ivith directions).

      Igoe S Carroll and Fauntleroy, Cullen & Eay for appellant.
    (1) The charter is the supreme law of St. Louis, deriving its authenticity from the source of all power, the votes of the people, and, by its adoption, all inconsistent laws, constituting part of either the ordinances or the previous charter, are repealed. (2) Sections 1 and 2 of the new charter repeal Section 14 of Article 3- of the old charter, and after the adoption of the new charter there was no law existing in the City of St. Louis establishing the compensation of the aldermen at $300, but on the contrary the only law on the subject fixed the salary at $1,800. (3) The Constitution declares that (Section 22, Article 9) when a new charter shall be ratified at the election, then said charter shall become the organic law of such city, and sixty days thereafter shall take effect and supersede the charter of such city and all special laws inconsistent therewith.” See Cutshaw v. City of Denver,- 75 Pac. 22. (4) The existence of the Council and House of Delegates were created by the old charter, and when the old charter was repealed the existence of said Council and said House of Delegates was obliterated and destroyed, on the well-established principle that when the law creating an office ceases to exist the office cannot survive. Arnold v. Hilts, 155 Pac. 31G; 28 Cyc. 401. See Riggin v. Richards, 79 ;S. W. 84 f Barrett v. City of Falmouth, 58 S. W. 521; Welch v. Common Council, 64 ÍST. W. 1051; Speed v. Common Council of Detroit, 58 N. W. 638. (5) An officer has no vested right to his office. It may be abolished by supervening power before the expiration of the term for which he was appointed or elected. If abolished, his right to the salary attached to it ceases. State ex rel. v. Dlavis, 44 Mo. 129; State ex rel. v. Smith, 87 Mo. 158; Givens v. Daviess County, 107 Mjo. 60'S; Primm v. Carondelet, 23 Mo. 22; Maguer v. St. Louis, 179 Mo. 495. (61) The right of a public officer to the salary of his office is a right created by law and is an incident to the office. It is not the creature of contract. State ex rel. v. 'Walbridge, 153 Mo. 203; Bates v. St. Louis, 153 Mo. 18; Oavance v. Milan, 99 Mo. App. 672; Sanderson v. Pike County, 195 Mió. 605. (;7) The power that creates a municipal office and fixes the tenure of the officers holding the same may by an amendment of its charter abolish the office and its tenure at any timie and create another office' of like character with different tenure and larger salary; and a constitutional provision that in no case shall the salary or emoluments of any public • officer be changed during his term of office does not impair such right. Bridgeman v. Roberts, 139 Pac. 518; Gilbert v. City of Paducah, 115 Ky. 160'; State ex rel. v. Board, 58 Pac. 439; Stone v. Pryor, 45 S. W. 1053.

      Charles H. Danes‘ and Everett P. Griffin for respondent.
    (1) The new charter of the City of St. Louis did not increase the relator’s salary but merely continued himl in office until the expiration of his term as a member of the House of Delegates, to which he was elected under the old charter. It was not the intention of the new charter to increase the salaries of the members of the House of Delegates for the balance of their terms. New Charter, Schedule, Sections 8 and 9. (2) If it was the intention of the new charter to pay relator the salary provided by the new charter for members of the Board of Aldermen for the balance of his term as a member of the House of Delegates, thereby increasing his salary from $25 per month to $150 per month, such provision would have been invalid under the Constitution of Missouri. Constitution, Art. 14, sec. 8. And such increase was prohibited by the old charter of the City of St. Louis. Old Charter, Art. 3, sec. 14; Art. 3, sec. 26, cl. 8; Art. 16, sec. 17. And also prohibited by the provisions of the new charter. New Charter, Art. 8, sec. 7; Art. 18, sec. 3, cl. 1. (3) The new charter did not require the relator to perforin new and additional duties for the balance of his term, but as a matter of fact, curtailed the powers and duties of the legislative branch of the city government. Under these circumstances, not being required to perform new and additional duties, he is not entitled to an increase in pay for the balance of his term, even if the charter had expressly increased his salary. Dillon on -Mum [Corps. (5 Ed.) sec. 426; Mechem on Public Officers, sec. 862; Folk v. City of St. Louis, 259 Mo. 116 ; State ex rel. Harvey v. Sheehan, 269 M;o. 421. (4) After the adoption of the new charter the. relator accepted his salary each month at the rate of $25 per month and signed the pay roll (excepting the last five days of his term, $4.17), and he is now estopped to demand more pay. Galbreath v. City of M'oberly, 80 Mo. 484; Mc-Nulty v. Kansas City, 198 S. W. 185.
   SMALL, C.

Appeal from the Circuit Court of the City of St. Louis.

This is a proceeding; in mandamus to compel the City Comptroller of the City of St. Louis to pay the relator salary at the rate of $1,800 per annum as an alderman, under the new charter, instead of $300 per annum! fixed for members of the House of Delegates by the old charter of said city.

Relator was paid at the rate of $300 per annum— $25 per month — but received it under protest and claimed, at the time, that he was entitled to $1,800 per annum, or $150 per month.

The lower court denied the peremptory writ and dismissed relator’s proceeding. He duly perfected his appeal to this court.

The questions involved in this appeal are: (1) which charter, -the old or new, prescribes the salary of the relator, after the _ new charter took effect; (2) whether, if the new, the provision of the Constitution against increasing salaries of municipal officers during their term of office is violated; and (3) whether relator waived or estopped himself from claiming any greater salary by his acceptance under protest of $25 per month.

Relator was a member of the House of Delegates under the old charter at the time the new charter became effective. He was elected April 1, 1913, for a period expiring April 5, 1915'. The new charter was adopted June 30, 1914, but did not take effect until sixty days thereafter, or August 29, 1914. Under the old charter the legislative body consisted of the Municipal Assembly, composed of two branches, the Council and House of Delegates. The Council consisted of a president and twelve members all elected by the city at large. The House of Delegates had twenty-eight memi-. bers, one elected by each ward in the city. Under the new charter, the legislative power is vested in a single body called the Board of Aldermen, composed of twenty-eight members and a president, all elected by the city at large.

Section 8 of 'the Schedule of the new charter, provides as follows:

“The present Municipal Assembly, with its present officers, ór such as the respective houses may lawfully choose, under the present charter, shall continue until the first Monday in April, 1915; with all the powers and duties given to .the Board of Aldermen by this charter, and subject to its provisions; and until said date, the provisions of the present charter with regard to the filling of vacancies in the office of Mayor or temporary performance of the duties of Mayor, shall remain in force.”

Section 9 of said Schedule was as ^ follows:

Section 9. All terms of office of the present officers or employees, except those terms expressly saved or continued by this charter, are abolished.

By Section 3 of Article 2 of the new charter, the first Board of Alderman elected, after the new charter took effect, was to be elected at the general election to be held on Tuesday, April 6, 1915.

Section 18 of the said Schedule provided that: ‘‘ Every present city officer, who, if appointed or elected, would be required by this charter to take an official oath, shall take, subscribe and file such oath as- provided in this charter.”

Section 3 of Article 8 of said new charter provided that: “Every officer . . . shall before entering upon his duties . . . take and subscribe and file with the Register an oath or affirmation that he has all the qualifications and is not subject to any of the disqualifications named in this charter for the office or employment he- is about to assume; that he will support . . . the charter and ordinances of the city.”-

Section 16 of the Schedule of the new charter provides: “All present boards, commissions and officers created by charter or ordinance and not provided for or authorized or expressly continued by this charter are hereby abolished, save only the City-Plan Commission, Board of Engineers and Board of Examiners of Plumbers, which said commission and boards, until abolished by ordinance, shall hereafter be appointed by and under the control of the Board of Public Service.”

The powers, duties and qualifications of the members of the Board of Aldermen are materially different from those of either branch of the Municipal Assembly of the old charter. In some respects, suclYpowers and duties are increased and in others taken away.

Section 14 of Article S' of the old charter provided that each member of the Municipal Assembly should be entitled to a salary of $300 per annum and no more,

Section 2 of Article 4 of the new charter provides that: “The salary of each alderman shall he $1,800 per annum.”

I. The Constitution provides, Section 22, Article 9, as to amending the charter of St. Louis, that when a new charter shall be ratified at the election “then said charter shall become the organic law of such city, and sixty days thereafter shall take effect aild supersede the charter of such city and all special laws inconsistent therewith.” By authoritative mandate of the Constitution, therefore, on the 29th day of August, 1914, when the new charter took effect, the old charter was functus officio, had ceased to exist and no vestige of it remained. It had been entirely superseded by the new charter, which then became the organic law of the city. If thereafter, any of the provisions of the old charter remained in force, it must be because by the termls of the new charter they were continued in force, and thus made a part of the new charter itself. It is not necessary that a provision of the old charter should be inconsistent With the new charter, in order that the new charter should repeal or supersede it. It is so superseded, whether it is inconsistent with the new charter or not, by the express command of the Constitution. To have any life or vitality left in it, any provision of the old charter must be affirmatively made a part of the new. Other-. wise, after the ¡taking effect of the new charter, it is automatically superseded by the provisions of the new charter. So that, we must rule that the Municipal Assembly of the old charter, as a dual body composed of a Council and House of Delegates, was swept away bv the new. charter, unless it was continued as such dual body by the new charter. We can find no provisions to that effect in such new charter. It is true, that Section 8 of the Schedule says: ‘ ‘ The present Municipal Assembly with its present officers or such as the respective houses may lawfully choose under the present charter, shall continue until the first Monday in April, 1915” — but, continue how? A? an assembly with two legislative bodies, with powers, duties and functions of the House of Delegates and the Council, respectively under the old charter? Not at all. But “tvith all the powers and duties given to the Board of Aldermen by this charter and subject to its provisions.” That is, the members of the Assembly continue as one legislative body, not two, and have not the powers and duties prescribed for assemblymen by the the old charter, but have the duties and powers of the Board of Aider-men, given by the new charter, and are subject — that is, governed. and controlled by — the provisions of the new and not the old charter. The question is not simply whether the members of the old Assembly were continued in office, but whether they were continued in the same or a different office — a new office or in the old one? There can be no doubt, it seems to us, that the old office of Assemblyman died with the old dual Assembly, and the members of the old Assembly were inducted into the new office of alderman — elected by the people of the city at large, as members of the Board of Aldermen, when they voted to adopt the new charter — and that they were to hold such office until the first Monday in April, 1915, and upon April 6, 1915, their successors should be elected at the general city election to be then held. All the other provisions of the new charter are in harmony with this construction. The old assemblymen were required to take a new oath of office, to have the qualifications of Aider-men prescribed by the new charter, — so that, if any of them failed- in this respect, he could not hold the office — and the respective houses — i. e., the members thereof — were authorized only to choose such officers for themselves, as provided by the new charter. ’ There was a complete novation. The old things — so far as the dual assembly of the old charter was concerned — had passed away, and all things had become new — by the new charter.

"We hold, therefore, that relator, upon taking effect of the new charter, became an alderman under the new charter, and was entitled to receive a salary of $¡1,800 per annum, as therein prescribed, unless forbidden by the Constitution, as contended for by the respondent.

II. The Constitution provides, Section 8, Article 14: “The compensation or fees of no state, county or municipal officer shall be increased during" his term of office.”

In as much as we have held. that the office of member of the House of Delegates was abolished by the new charter and that relator, since its adoption and taking effect, has occupied the new office of Alderman — we must rule that this section of the Constitution has no application, because it is not contended that relator’s salary, as Alderman, has been increased during his term of office. The creation of a new office, with a higher salary, and the holding therof by relator, since his election as member of tjie House of Delegates, which was abolished by the new charter, is not prohibited by the Constitution.'

III. Nor did the relator waive his right; nor is he estopped to claim the salary due him, by receiving $2-5 per month from the city. He received this sum. under- protest and claimed, at the time, that he was entitled to be paid at the rate of $1,800’ per year, the salary of an Alderman fixed by the new charter. There was no settlement with relator by the city, as in the case of Calbreath v. Moberly, 80 Mo. 484, nor settlement and compromise, as in the-case of McNulty v. Kansas City, 198 S. W. 186, relied on by respondent.

The result is, the case is reversed and remanded, and the lower court is directed to set aside its judgment and decree denying the peremptory writ herein, and to enter a judgment granting a peremptory writ of mandamus, as prayed for by the relator.

Brown and Ragland, CC., concur.

PER CURIAM: — The foregoing opinion of Small, C, is adopted as the opinion of the court.

All of the judges concur, except Goode, J., not sitting.


author: GRAVES, J.

text:
    CITIZENS BANK OF HAYTI v. J. M. McELVAIN and A. McELVAIN, Appellants.
    Division One,
    March 2, 1920.
    1. FRAUDULENT CONVEYANCE: Grantor’s Fraud: Intent. The deed of the owner of real estate, subject to execution and sale, made for a valuable consideration to persons other than creditors, whereby the grantor entirely strips himself of property, leaving existing debts unpaid, is fraudulent, under the statute (Sec. 2881, ft. S. 1909), since it hinders or delays the creditor in the collection of debts due him. Under such circumstances the very act of the conveyance itself hinders or delays a creditor, and the statute makes such a conveyance void and supplies the fraudulent intent.
    2. -: -: To Pay Another’s Debts. The conveyance of land by the owner to pay his own bona-fide debts is not fraudulent as to other creditors, but the owner cannot convey it to pay the debts of another, if thereby he hinders or delays his own creditors m the collection of their debts. A wife, however great her distress and however honest her intention, cannot convey her property to pay her husband’s debts, if thereby she hinders or delays her own creditors.
    3. -: Notice to Grantee: Payment After Attachment. Even though the grantee in a fraudulent conveyance did not participate in the grantor’s intention to defraud her creditors and it be conceded he was a purchaser in good faith up to the time the levy of the attachment was spread upon the records in the recorder’s ofiice, he was bound to take notice of such record and that the property had been attached on the ground that the conveyance was made to hinder or delay the grantor’s creditors, and that being established, whatever payments be made thereafter, though previously agreed to be paid to the grantor, were not made in good faith, but were made with imputed notice of the fraud, and the conveyance is fraudulent as to all such subsequent payments and as to them must be set aside at the suit of the defrauded creditor.
    Appeal from Pemiscot Circuit Court. — Hon. Sterling H. McCarty, Judge.
    Affirmed,

      R. L. Ward and S. J. Corbett for appellants.
    (1) Plaintiff positively failed to sliow (a) lack of consideration, (b) that Grace R. Tindle conveyed the property to hinder, delay or defraud her creditors, (c) that defendants had any knowledge of any fraud on the part of Grace R. Tindle or any facts or circumstances from which there could fairly be deducible any of the elements necessary to cancel and set aside the deeds. (2¡) In a suit to set aside a conveyance on ground of fraud, mere suspicion is not enough. Fraud must be proved as an affirmative fact; and the proof must be of such character as to convince the mind of the chancellor; for it is never presumed, and if the facts all consist as well with honesty as with fraud the transaction must be held honest. Black v. Epstein, 221 Mo. 310; Bank v. Worthington, 145 Mr. 100; Waddingham v. Loker, 44 Mo. 132; Dallan v. Renshaw, 26 Mo. 523; Robbinson v. Dryden, 118 Mo. 539; Coleman v. Hagev, 252 Mo. 102. (3) Plaintiff pleaded that Grace R. Tindle conveyed this property to hinder, delay and defraud her creditors, yet not a line of testimony was offered to this effect and no circumstances shown. The whole proof shows that her husband was bankrupt, that she had been sick many months and had a family of four children and was to give birth to a fifth and required the constant attention of a nurse and physician and didn’t have any money whatever, and the family was moving to Youngstown, Ohio, where her husband was to occupy a position as bookkepper; and she did not have a dollar for the necessities of the family, herself and children, and the property was mortgaged, so she sold it to get money for'the use of herself and family. One cannot conjecture or guess this sale to hinder or defraud creditors from this testimony. Link v. Hathaway, 143 Mo. App. 592; Bates Bank v. Railroad, 98 Mo. App. 330. It is not sufficient to cancel the deed, that a part of the purchase money went to pay a debt of her husband, when he had, in fact, given her all the property. Wellman v. Investment Co., 262 Mo. 285. (4) At best plaintiff only showed that Grace R. Tindle was insolvent; that is, that after making this conveyance she had no property left except what was coming to her from the trustee in property conveyed, in trust. It cannot be inferred that the conveyance was fraudulent from the fact that the grantor was insolvent or financially embarrassed when he executed it. Link v. Hathaway, 143 Mo. App. 502; State ex rel. v. Merritt, 79 Mo. 275; Gage v. Mear, 107 Mo. App. 140’. (5) Not a line or intimation that defendants knew Grace R. Tindle was conveying this property with fraudulent intent. Henderson v. Henderson, 55 Mo. 534; Wall v. Bundy, 161 Mo. 6i25-; Gust v. Hoppe, 201 Mo. 298; Smotherman v. Clothing Company, 154 Mo. App. 622; Farmers Bank v. Worthington, 145 Mo. 99. (6) A conveyance of land will not be declared fraudulent unless the grantee knew and participated in the fraud. Farmers Bank v. Worthington, 145 Mo. 91; State ex rel. v. Mason, 112 M;o. 374. Mere knowledge of facts or suspicious circumstances which would put an ordinarily prudent man on inquiry is not enough, though such facts may be given in evidence to be considered by the jury. Sammons v. O’Neill, 60 Mo. App. 530; Hern v. Dunn, 79 Mo. App. 322; Kelley v. Prickett, 84 Mo. App. 94.

      Yon Mayes for respondent.
    (1) An attaching creditor may maintain an action to set aside a fraudulent conveyance of the property attached. Mansur v. Jones, 143 Mo. 253; Sec. 2344, R. S. 1909. (2) It is not necessary to make the grantor a party to the suit. Schneider v.’Patton, 175 Mo. 684. (3) It is sufficient if the effect of the conveyance is to hinder or delay the creditors of the vendor. State v. O’Neill, 151 Mo. 85; Hewitt v. Price, 99 Mo. App. 666; Sec. 2294, R. S. 1909; 20 Gyc. 461; 2 Moore on Fraudulent Oohvevances, p. 572; 2 Pomeroy’s Equity Jurisprudence (4 Ed.), 'sec. 9(71, p. 2103; Oldham v. Wade, 273 Mo. 231. However, a conveyance made in good faith to pay creditors is valid. First Nat. Bank v. Fry, 216 Mo. 24; Baker v. Harvey, 133 Mio. 653. (4) Where the purchaser has knowledge of facts sufficient to excite his suspicions and put him upon inquiry, he will be presumed to know all the facts which reasonable inquiry would-have disclosed. State v. Purcell, 131 Mo. 312; Deere Plow Co. v. Sullivan, 158 Mo. 440; Bank v. Tobacco Co., 155 Mo. 602; Adams v- Gossom, 228 Mo. 583; 20 Cyc. 470, 481. (5) The sale may be void, though the purchaser pays a valuable consideration. Aull v. Gaffin, 234 Mo. 171; Sexton v. Anderson, 96 Mo. 373; Kurtz v. Troll, 86 Mo. App. 649. (6) Where property is sold by a debtor for the purpose of defrauding creditors, a bona-fide purchaser without notice is only protected to the extent of actual payment thereon prior to the attachment. Dry Goods Co. v. Hodges, 175 Mo. App. 49'3; Amholt v. Hartwig, 73 Mo. 485; Daugherty v. Cooper, 77 Mo. 528; Young v. Keller, 94 Mo. 581; Kurtz v. Troll, 175 Mo. 596; Stein v. Burnett, 43 Mo. App. 477; Wetmore v. Woods, 63 Mo. App. 270 ; Bigelow, Fraudulent Conveyances, pp: 568, 600; 2 Pomeroy’s Equitv Jurisprudence (4 Ed.), sec." 750', p. 153-9; 20 Cyc. 643.
   GRAVES, J.

The plaintiff, a judgment creditor of Grace R. Tindle, brings this action to have declared fraudulent and void as to plaintiff, three several deeds made by Grace R. Tindle and her husband to the defendants, on the ground that the same were made to hinder, delay and defraud her creditors, including this plaintiff. Upon trial nisi the chancellor so decreed, and defendants have appealed.

The pertinent facts are Grace R. Tiudle was indebted to plaintiff upon a note due July 8, 1913, in the sum of $2000. September 8, 1913, plaintiff filed suit upon said note; summons was issued September 22, 1913, and served upon September 30', 1913. September 30th, affidavit for an attachment was filed in the case, and writ of attachment was issued and served upon Grace R. Tindle upon that day, and an abstract of the levy under the writ duly filed on the same day. Two days after the filing of the petition/"by the plaintiff, i. e. September 10, 1913, Grace R. Tindle, joined therein by her husband, executed the three deeds attacked in this case, covering three tracts of land. The aggregate expressed considerations was $7500. The defendants herein were the grantees in such deeds. Those deeds were placed of record on September 17th. On December 2, 1913, the circuit court sustained the attachment and gave the bank judgment for the amount of its note and interest. Later the present suit was instituted. In it, by answer, the defendants averred that they purchased in good faith and*for value, and denied that such purchase was made by them with the intent- to hinder, delay or defraud the creditors of Grace R. Tindle.

The three deeds stripped Grace R. Tindle of every vestige of property which she then owned. Her husband was then in trouble, and was afterward sent to the penitentiary. J. M-. McElvain was a friend to the Tindles and lived just across the street from them. He was on Tindle’s bonds in the criminal eases arising from a bank failure, and on them all the time. At the date of the conveyances Mrs. Tindle was indebted in a sum aggregating more than $10,000, but McElvain says that he had no knowledge of that fact.

The consideration was paid as follows, according to McElvain wired them $1500, to Ohio, and later paid her $500 more when he visited them at their home in Ohio. She also • agreed that McElvain might retain $2500 of the purchase price to be applied on a joint note of $5000', given by her husband and McElvain to one • Mitchell, the evidence. McElvain paid the husband of Mrs. Tindle, for her, $1000, at the making of the deeds, or about that time. Two thousand dollars was to be deducted, because of a deed of trust on the property in that sum.

The Tindles left Caruthersville, Missouri, for Youngstown, Ohio, the last day of September, or the day upon which the attachment was served. • Going back to the question of the payment of the consideration, if in fact it was paid, the evidence of Mrs, Tindle is that Thus the alleged consideration was made up. The money payments ($1000 and $500) were paid in actual cash instead of checks. The evidence also discloses that the transaction was carried on by Mr. Tindle for his wife. It further shows that McElvain and the Tindíos were close friends and that Tindle and McElvain had dealt in lands together. Further Tindle, whilst in the bank, had loaned money to McElvain. The agreement that $2500 was to be applied upon the joint note to Mitchell was made after the trade was closed, according to McElvain, but Mrs. Tindle says that he would not buy the property unless this $2500 was so applied, and herein a material conflict.

Mrs. Tindle says that she sold the property because she was sick and had to have money to support herself and four children. Shortly afterwards she gave birth to a child. She says that her husband was in financial troubles and could not help her. Plaintiff was forced to go to the camp of the enemy for its testimony and the facts given here came from Mrs. Tindle and Mr. Mc-Elvain. The price of $7500' is not shown to have been far from the real value. Only about $1200 below, by the best evidence.

As said, the court found the deeds fraudulent and ■void in so far as they affected the rights of plaintiff. Such are the facts of the record, leaving only details connected with the central facts for the opinion.

T. We can shortly determine the situation of Mrs. Tindle in this transaction. Her deeds stripped her of the last vestige of property. Under such circumstances her intent to hinder, delay or defraud her existing creditors is shown by the very act. Her words cannot controvert her acts. All property conveyed was property which was subject to execution. The homestead had been deeded in trust for the payment of her husband’s debts.

The property here conveyed was subject to the payment of plaintiff’s debt, and the very act of the conveyances hindered or delayed plaintiff in the collection of its debt. The statute, Section 28-81, Revised Statutes 1909, so far as applicable reads:

“■Every conveyance ... of any estate or interest in lands . . . made or contrived with the intent to hinder, delay or defraud creditors of their Lawful actions, damages, forfeitures, debts or demands . . . shall be from henceforth deemed and taken, as against said creditors and purchasers, prior and subsequent, to be clearly and utterly void.”

The words “hinder,” “delay” and “defraud” are connected by the word “or” in the statute, and it is sufficient if either result is accomplished by the conveyance. In State to use v. O’Neill, 151 Mo. l. c. 85, we said:

“In this connection it should be borne in mind that subdivision 7 and 8 et seq. of Section 521 of the Attachment Act, Revised Statutes 1889, do not require that there should be a fraudulent intent to' ‘hinder, delay or defraud,’ in making the conveyance; it is the legal effect of that conveyance which the law looks to; it suffices, therefore, that the result of the conveyance is either of those three forbidden things. As is pertinently observed by Richardson, J., in Reed v. Pelletier, 28 Mo. l. c. 177. ‘The term fraud as understood in the statute concerning fraudulent conveyances, has the same meaning in the attachment law, and it is not necessary to show that the act originated in any meditated design to commit a positive fraud or to injure other persons. There are many acts not the result of intentional fraud which the law, nevertheless, from their tendency to deceive other persons, or from their injurious consequences to the public, prohibits as being within the same reason and mischief as actual fraud. And whatever, by the judgment of the law, is denounced as fraudulent must be regarded in the same light in reference to an act or transaction which is made the ground of an attachment; and if the act charged to have been committed is fraudulent, actual or constructive, it will be inferred that the party intended its natural and ordinary results should follow.”

Not only so, but the intent is gathered from the effect of the particular transaction. If one conveys all the property he has (not in the payment of his or her debts) then the transaction within itself bespeaks fraud in law, as to the existing creditors of the party so conveying. In 20 Cvc. 462 et seq., we find the doctrine thus stated:

“Where, however, the effect of a particular transaction with a debtor is to hinder, delay, or defraud creditors the law infers or supplies the intent, although there may be mo direct evidence of a corrupt or dishonorable motive, but on the contrary an actual, honest, but mistaken motive existed. The law interposes and-declares that every man is presumed to intend the natural and necessary consequences of his acts; and the courts miust presume the intention to exist, when the prohibited consequences must necessarily follow from the act, and will not listen to an argument against it. Hence it has been remarked that where a convey-’ anee, by its terms, operates to hinder, delay, or defraud creditors, the intent to do so is imputed to the parties, and no evidence of intention can change that presumption. A conveyance will be set aside where it is made with intent either to hinder, delay, or defraud.”

In Snyder v. Free, 114 Mo. l. c. 376, this court quotes with approval an announcement of the rule from Babcock v. Eckler, 24 N. Y. 623, whereat it was said:

“If the necessary consequence of a conceded transaction was defrauding another, then, as a party must be presumed to have foreseen and intended the necessary consequences of his own act, the transaction itself is conclusive evidence of a fraudulent intent; for a party cannot be permitted to say that he did not intend the necessary consequence of his own .voluntary act. Tntent or intention is an, emotion or operation of the mind, and can usually be shown only by acts or declarations, and as acts speak, louder than words, if a party does an act which must defraud another, his declaring that he- did not by the act intend to defraud is weighed down by the evidence of his own act.”

So also in the recent case of Barrett v. Foote, 187 S. W. l. c. 70, this court said:

“The father was a single man during all the times mentioned, and no one is dependent upon him for support. The property in his hands was not exempt from execution. The conveyance was invalid as to plaintiff, an existing creditor, regardless of the motives which actuated the father and son in mlaking said deal, as no provision was made for the payment of plaintiff’s demand. [Walther v. Null, 233 Mo. 104, 134 S. W. 993; Bank of Versailles v. Guthrey, 127 Mo. 189, 29 S. W. 1004, 48 Am. St. 621; Kegan v. Haslett, 128 Mo. App. 286, 107 S. W. 17; Massey v. McCoy, 79 Mo. App. 169; Wait on Fraudulent Conveyances, par. 10.]”

So that Mrs. Tindle’s explanation as to why she conveyed the property is of no value here. The effect of her conveyances was to hinder, delay or defraud her existing creditors. Her intent must be gathered from •the legal effect of her acts in a case like this, where she undertook to divest herself of all that she owned in property. We therefore proceed with the further issues in this record upon the assumption that Mrs. Tindle’s intent was to hinder, delay or defraud this plaintiff and her other creditors. She paid no debts of hers, nor did she attempt, to pay any of her obligations in the transactions. She did, it is true, say that. she paid $2500' of her husband’s debts, but this will not suffice to make the transaction bona-fide as to her creditors. We recognize the rule that one may convey his property for the payment of his or her bona-fide debts, but this rule does not apply when an attempt is made to pay some other person’s debts in preference to the creditors of the grantor.

II. For the purpose of the point we now have in view we need not discuss the question as to whether or not defendants participated in the fraudulent intent of Mrs. Tindle at the time of the sale. The judgment in this case does not declare the deeds wholly void, hut does declare them void and inoperative as against the claim of plaintiff. Up to the time of the. attachment the defendants had only paid the snm of $1000 on the purchase price, so far as this record shows. It is clear that $2000 was paid in cash (as the parties aver) after the attachment, and after the levy of attachment was spread of record in the office of the recorder of deeds. The record of this levy was notice to the world that the property had been attached as the property of Mrs. Tindle. It was notice to defendants, in the language of this court, “of the imputed bad faith in their purchase.” [Dougherty v. Cooper, 77 Mo. l. c. 534.] In the making of future payments the defendants were bound to take notice of the attachment ievy. In such payments they cannot hide behind the screen of purchasers in good faith, because such payments, in law, were made with full knowledge of plaintiff’s claim, and the’ attachment proceedings, and therefore with full knowl-'' edge of the imputed bad faith of the defendants. _ The very purpose of filing an abstract of a levy in an attachment proceeding in the recorder’s office is to give notice to the world, so that all future actions as to the property involved must be had with the notice which such record imports.

Defendants urge that they were bona-fide purchasers for value. Were they in fact and in law? Up to the date of the attachmient it may be conceded that they were acting in good faith and without notice of the intent of Mrs. Tindle, as such intent is fixed by the law of such transactions.

At the date of this attachment these parties had paid but $1000' of the purchase p'rica. The payments made thereafter (if such were made) do not come within the rule of a bona-fide purchaser without notice. The rule in such cases is thus stated'in 20 Cyc. 643:

“To constitute one a bona-fide purchaser of property sold for the purpose of defrauding the vendor’s creditors the whole consideration must be actually paid before tbe purchaser has notice of the fraudulent intent. He is entitled to an equity pro tanto for money paid or property or security actually appropriated as payment before he received notice of the fraud; but not as to any payment he makes after such notice, nor as to any unpaid portion. Nor will he be protected where he takes the conveyance without any or at a grossly inadequate consideration without notice.”

The foregoing rule thoroughly accords with the views of this court. In. fact it is formulated largely from; our rulings. The rule is aptly illustrated in the case of Arnholt v. Hartwig, 73 Mo. l. c. 488. In that case Arnholt bought goods of one Fredericks, and in payment therefor gave him a check for $500, which was not to be presented for payment until Arnholt’s partner returned. Arnholt took possession of the goods, and whilst he was in possession they were attached by Fredericks’ creditors. After the attachment Arnholt directed his bank to pay the check, which though negotiable, had not been negotiated by Fredericks. Under those facts, at page 487, this court said:

“There was evidence tending to prove that Fredericks sold the property for the purpose of hindering and delaying his creditors, and it may be conceded that at the time of the purchase Arnholt had no knowledge that such was Fredericks’ purpose, and the question then arises whether notice to him of the attachment before the check on his banker was paid deprived him of the character of a bona-fide purchaser?
“We are of opinion that it did. ‘No one but a purchaser for a valuable consideration can claim title to property which has been fraudulently assigned against the action of an attaching creditor. Such purchasers are protected upon the equitable principle that they should not be deprived of that which they honestly and without notice of any fraud bought and paid for in fair dealing with the person holding the legal title. But the consideration must, in all cases, be actually passed before notice. Unless payment has been actually made in some shape, the authorities are quite clear that the purchase will not he upheld. In equity a purchaser is protected to the extent of the payments actually made, and no further, even where future payments are provided for, unless those are secured in such a manner that the purchaser cannot be relieved against them. This could only happen where he gives negotiable paper; for upon a debt not negotiable the failure of title would exonerate him.’ [Dixon v. Hill, 5 Mich. 408.] -The foregoing extract from the opinion of the Supreme Court of Michigan states the doctrine on this-subject as gener - ally received both in England and the United’ States. In Paul v. Fulton, 25 Mo. 163, the court observes: ‘It is held in this country and in England that actual payment is in general necessary to the character of a purchaser for valuable consideration, and that giving security or executing an obligation for payment will not be sufficient. Payments in bills or notes of third persons will, however, be equivalent in most cases to actual payment; and the same effect would seem to be due t:> payment in the notes of the purchaser, if negotiable iii their character and actually negotiated so as to render him liable to pay them at all events.’ In Wormley v. Wormley, 8 Wheat. 449, Judge Story, said: ‘It is a settled rule in equity that a purchaser without notice, to be entitled to protection, must not only be so at the time of the contract or conveyance, but must be so at the time of the payment of the purchase money.’
“In the case at bar the interpleader had given his check on his banker, and although there is no evidence to show that the check was negotiable, we may assume that it was; yet that fact cannot avail the interpleader, inasmuch as it was never negotiated, but was paid to Fredericks by the banker with the consent and by direction of Arnholt after the latter had notice of the attachment proceeding. By the payment under such circumstances, however innocent Arnholt may have been of any fraud in the purchase in the first instance, he became an actual participant in Fredericks’ fraud upon his creditors.”

. From the foregoing it will be seen that we have approved every phase of the law as stated in 20 Cyc. supra:

Granting, for the purposes of this discussion, that defendants were in good faith and without notice at the time the deeds were made, yet with the subsequent notice given them by the attachment, they can only be protected to the extent of the $1000' paid at or about the date of the deeds. This is the only payment shown to have been made prior to the attachment. To like effect is Dougherty v. Cooper, 77 Mo. l. c. 531, whereat this court said: ‘"‘The making of the levy on the goods under the facts of this case, was notice to Dougherty and Hutchinson of the imputed bad faith in their purchase, and after that they could make no payment in good faith.”

The Dougherty case also recognizes the law that a payment made before notice of the fraudulent intent of the grantor, would be protected, but subsequent payments would not. In this Dougherty case a part of the purchase price had been paid before notice of the fraudulent intent of the. vendor. We held, however, as to all subsequent payments the vendee was not a purchaser in good faith without notice.

In the later case of Young v. Kellar, 91 Mo. l. c. 593, after quoting with approval from both the Arnholt and Dougherty cases, supra, we further said:

‘ ‘ Our statute touching fraudulent conveyances levels its denunciations against all transfers of goods ‘with the intent to hinder, delay, or defraud creditors,’ and declares all such transfers as against creditors ‘to be clearly and utterly void.’ The only refuge a vendee has from the denunciations of this statute is, that, in good faith, he has bought and paid tlie purchase money prior to notice of the fraud. In a word, he cannot play the role of an innocent purchaser, while he remains in a situation to pay the money at will or to retain it at pleasure. For these reasons, instructions which left it to the jury to say whether payment had been made of the purchase price were erroneous, because they were not supported by the testimony; and also because) of misleading the jury into the belief that a payment made after notice of the levy of an attachment would give the purchaser so paying a valid title to the' goods seized.”

So that in this case the only protection to which defendants are entitled on their own testimony is the $1000 payment. The decree only declares the deed “fraudulent and void as against plaintiff and the said judgment of plaintiff and that same be*set aside, canceled and for naught held.” The judgment then proceeds to direct a sale of Mrs. Tindle’s interest in the property. When in this judgment the court says that the deeds shall “be set aside, canceled and for naught held” it nmans as against the plaintiff and its judgment, and not more. The defendants could discharge plaintiff’s debt, before sale and leave their deeds in form. The evidence discloses that the property is worth at least $7500 expressed as the consideration, and this value will more than take care of the deed of trust for $2500 on the land, and the $1000' paid prior to the attachment, as well as the plaintiffs’ judgment. No harmful results can follow from the affirmance of this judgment. We need not discuss the good faith of defendants when they received the deeds. The court finds they bought with notice of the fraudulent intent of the grantor, but it being clear that they did participate in this intent, after notice, by making future payments, is sufficient, and we need not discuss the other matter. The property is ample to protect plaintiff upon its judgment, and defendants upon the $1000' payment “to Mrs. Tindle.

Let the judgment be affirmed.

All concur.