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hands of the grantor, or placing it in the hands of a third person, to be produced or suppressed accordingly as exigencies may demand, are instances of secrecy that are within the rule." Bump, Fraud. Conv. (3d Ed.) 39. There are many cases where the existence of an intent to hinder, delay, or defraud is not a question of fact, but is one of law. Every man is presumed to intend the necessary consequences of his act, and, if an act necessarily delays, hinders, or defrauds creditors, then the law presumes that it was done with a fraudulent intent. Bump, Fraud. Conv. (2d Ed.) 22; Wait, Fraud. Conv. (2d Ed.) 9. Full and complete recognition is given to this principle of law in Walsh v. Chambers, supra, which was a case of an omission to record a deed. In Hildeburn v. Brown, 17 B. Mon. 779, the plaintiffs sought to foreclose an unrecorded mortgage against a subsequent assignment for the benefit of creditors. There had been an arrangement not to record the mortgage, except in case of danger of the failure of the mortgagor. The court said: "The effect of the arrangement, though it may not have originated in an actual fraudulent or evil purpose, was to secrete from the public eye the true condition of the debtor, and thereby enable him, under the semblance of being the owner of unincumbered real estate, to deceive and mislead other persons by inducing them, upon the faith of his supposed unembarrassed condition, to give him credit which would otherwise have been withheld. *

If not directly within that class of acts which the law denominates constructive fraud, it approximates so nearly to it that the party avowing himself a participant in such transaction ought not to receive the countenance or aid of the chancellor in enforcing any lien or claim growing out of it or against third persons." Hilliard v. Cagle, 46 Miss. 309, was a bill brought by judgment creditors to cancel a deed of trust which covered the plantation, storehouse, and merchandise of the grantor. It was made to secure his factors for advances made and thereafter to be made. The grantor was engaged to a large extent in the purchase and sale of cotton. The deed of trust was made in December, 1866, and it was agreed it should not be recorded until the last of January following. The grantor supposed he was solvent, and it seems the beneficiaries entertained the same belief. The reason assigned for not recording the deed was that to do so would injure the credit of the grantor. Insolvency overtook him in less than 60 days, because of a decline in cotton. There was no fraudulent purpose to defeat existing or future creditors. The court, in disposing of the case, lays down the proposition, before stated, that a man must be conclusively taken to intend the natural and logical result of his acts. The court expressed its conclusion in these words: "We are of opinion that the navural and logical effect of the agreement and assignment, and

the conduct of the parties thereto, was to mislead and deceive the public, and induce credit to be given to Boggett [the grantor] which he could not have obtained if the truth had been known, and therefore the whole scheme was fraudulent as to subsequent creditors, as much so as if it had been contrived with that motive, and for that object." The recent case of Bank v. Doran, 109 Mo. 42, 18 S. W. 836, was a proceeding by a judgment creditor to postpone two deeds of trust executed by Doran to Bartle. Doran was a large dealer in cattle and hogs, and the deeds of trust covered two farms. The trial court found-and the finding was approved by this court-that there was an agreement between the parties to the deeds that they should be withheld from record, and their existence kept concealed, so as not to impair the credit of Doran; that the deeds were thus withheld, and Doran continued to carry on his business; and that the agreement and withholding the deeds from record gave Doran a false and fictitious credit in the community. On these findings, we held the deeds to be fraudulent as against the creditors of Doran. The conclusion reached in that case was approved in Bank v. Frame, 112 Mo. 515, 20 S. W. 620. It is held in Wisconsin that withholding from record a mortgage at the request of the mortgagor operates as a fraud upon persons who deal with and give credit to the mortgagor upon the supposition that the property which he apparently owns is unincumbered; and that it is a legal fraud, though there is no actual intent to defraud. Paper Co. v. Guther, 67 Wis. 101, 30 N. W. 298; Sanger v. Guther, 73 Wis. 356, 41 N. W. 436.

In applying these principles of law to the case in hand, it is to be observed, in the first place, that these deeds did not, when made or when recorded, express the truth. Though a deed absolute on its face may be shown to be a mortgage, still such a conveyance is generally held to be a badge of fraud, because it affords a convenient cover for fraud upon creditors. Wait, Fraud. Conv. (2d Ed.) § 238. Now, Buck and McCrosky were, by means of these deeds, enabled, in part at least, to obtain a credit with the plaintiff to three times the amount of their capital in their banking business, and to incur a further contingent liability on rediscounts to twice the amount of such capital. They were daily creating debts at their place of business in Dekalb county, and this fact must have been well known to the plaintiff, for the business relations existing between it and them, as disclosed by the evidence before recited, gave the plaintiff such knowledge. Buck was in possession of the property, and he and McCrosky were doing business in a part of it, and he was the apparent and reputed owner of all of it. Had these deeds been recorded, depositors and home creditors would have been put upon their guard. Withholding the deeds from record for so

long a time gave Buck & McCrosky a financial standing and credit which they could not otherwise have had, and this fact is shown by the circumstances in evidence, as well as by the direct and positive statements of the defendants, made on the witness stand. Indeed, we feel bound to say the deeds were not recorded because it was believed to do so would injure the business of the grantors. Looking to the character of business in which Buck & McCrosky were engaged, and which was well known to the plaintiff, the necessary and inevitable result of withholding these deeds from record was to give Buck & McCrosky a false financial standing, and to mislead and deceive the defendants and other depositors; and the plaintiff must be held in law to have intended that result, though actuated by no fraudulent or evil motive. The deeds must be held fraudulent as to the defendants. The judgment is therefore reversed, and the cause remanded, to be proceeded with according to this opinion. All concur.

SMITH et al. v. CITY OF ST. JOSEPH. (Supreme Court of Missouri, Division No. 2. June 12, 1894.)

CITIES-CHANGING GRADE OF STREETS-DAMAGES.

1. Rev. St. 1889, § 1303, forbidding appropriations in excess of revenue, and annulling acts of officers which impose on the city liabili ty for money not appropriated, does not exempt a city from its constitutional liability for damages for change of a street grade, though no money has been appropriated therefor.

2. Const. art. 2, § 21. forbidding damage to private property for public use without compensation, makes a city liable for damages caused by a first material change of grade from the natural surface. Davis v. Railway Co. (Mo. Sup.) 24 S. W. 777, and Hickman v. Kansas City (Mo. Sup.) 25 S. W. 225, followed.

3. Lots damaged by a change of grade in front of them are chargeable only with the special benefits arising from the change of grade in front of them, not with any share in the general benefit to them and others.

Appeal from circuit court, Buchanan county; Henry M. Ramey, Judge.

Action by Louisa Smith and husband against the city of St. Joseph for damages to abutting lots caused by change of grade of a street. Judgment for plaintiffs. Defendant appeals. Affirmed.

Huston & Parrish, for appellant. Vinton Pike and Willard P. Hall, for respondents.

GANTT, P. J. Mrs. Smith and her husband brought this action against the city of St. Joseph for damages which they allege were done to certain lots belonging to Mrs. Smith, in block 11 in the St. Joseph Eastern Extension addition to said city, by grading Twenty-Third street, on which said lots abut

ted. Plaintiffs recovered judgment for $250, from which the city has appealed. The city relied for its defense to the action upon a general denial, and upon the following facts,

which were admitted: First, that the grading complained of was done in reducing the street to an original or first grade, which was reasonable and constructed in a prudent manner; second, that no money had been appropriated to pay any claim for damages incident to said grading. The assignments of error will be noticed in their order.

1. The failure of the city to appropriate money to cover the damages accruing from the grading is no defense. The statute which is invoked by defendant (section 1303, Rev. St. 1889) has no application to a case where a city has committed a tort upon one of its citizens. To permit it to plead its own neglect to provide for damages of its own commission would be subversive of all distinctions between right and wrong. It cannot escape the liability imposed upon it by the constitution in this manner. Hickman v. Kansas City (Mo. Sup.) 25 S. W. 225; Jamison v. City of Springfield, 53 Mo. 224.

2. Counsel for the city contends that, inas much as it stands admitted that the grading complained of was done in reducing the street to an original or first grade, plaintiffs cannot recover under the pleadings. In other words, they assume that the constitution of 1875 does not give an action for damages occasioned to property by grading the streets for the first time; that it must be presumed that every person purchasing a lot on an ungraded street did so in anticipation that the street would some day be brought to a grade by the city to conform to other streets and for all necessary draining and urban improvements. It is this constitutional question alone which gives this court jurisdiction of the case, as otherwise it is clearly without our jurisdiction. We are relieved of further discussion of the question by the very satisfactory and convincing decision in Davis v. Railway Co., 24 S. W. 777, in which division No. 1 of this court, through Macfarlane, J., held that, under section 21 of article 2 of the constitution of 1875, a city is liable to abutting property owners for a material change of the grade of a street from the natural surface. That decision was subsequently approved by this court in banc in Hickman v. Kansas City, 25 S. W. 225. As plaintiffs' first instruction was consistent with those decisions, no error was committed in giving it.

3. The only remaining assignment is that which complains of the action of the circuit court in amending defendant's fifth instruc tion by inserting therein the words "in front of said lots." The instruction as asked by defendant was in these words: "(5) Even if the jury should find that the plaintiffs may have been injured by the grading of the street in front of their property, yet, as against such damage, if any, you are instructed to deduct such special benefits, if any, as have been conferred upon plaintiffs' said lots by the grading of Twenty-Third street; and if such benefits are.

in the opinion of the jury, equal to or in excess of the plaintiffs' damage, then your verdict must be for the defendant." The words "in front of said lots" were inserted at the end of the fifth line, after the words "Twenty-Third street," by the court, so as to make it read: “(5) Even if the jury should find that the plaintiffs may have been injured by the grading of the street in front of their property, yet, as against such damage, if any, you are instructed to deduct such special benefits, if any, as have been conferred upon plaintiffs' said lots by the grading of Twenty-Third street in front of said lots;' and if such benefits are, in the opinion of the jury, equal to or in excess of plaintiffs' damage, then your verdict must be for the defendant." We do not think the words inserted by the court altered the meaning of this instruction. Learned counsel contend that they had the effect to limit the special benefits to such benefits only as resulted to the property from the grading of the street directly in front of said lots. We think this is true, but it does not therefore constitute error. The city cannot set off the general benefits that would inure to plaintiff, in common with all property owners, from the grading of this street. The property owner is confined to the damage specially done to his lot, and the benefits to be offset are those that grow out of the improvements which cause the damage to his property. He is not chargeable with those general benefits which he would derive, in common with other landowners along said street, by having a wellgraded street leading to or from his property. However plausible and reasonable it may appear that he ought not to recover damages if, in common with all other abutting proprietors, his property has been enhanced in value by the general improve ments, it is now settled in this state that he is not chargeable with such general improvement in front of others. Hickman v. Kansas City (Mo. Sup.) 25 S. W. 225.

The fact is that defendant succeeded in getting an instruction from the court more favorable to it than is warranted by our decisions. The court instructed the jury that the measure of damages was the difference between the market value of the property before the grading and the market value after the grading, caused by said grading. Under this instruction, the jury might have well considered that the grading of this street along its whole length increased the value of every foot of ground abutting on it far in excess of all special damages result. ing to any lot on it, and in this manner have found there was no damage to plaintiffs. The rule announced in the instruction, it seems to me, has much to commend it; but it has been determined otherwise by this court in banc, without dissent, and to its decision I yielded my own individual opinion at the time. It is clear, however, that no harm could have resulted to defendant from

this too favorable instruction which defendant itself procured. The judgment is affirmed.

BURGESS and SHERWOOD, JJ., concur.

HUHN V. LANG et al.'

(Supreme Court of Missouri, Division No. 2. June 12, 1894.)

RETURN OF EXECUTION ISSUANCE AGAINST NON

RESIDENT.

1. Under Rev. St. 1889, § 6302, making executions issued by a justice returnable in 90 days, a prior return is premature.

2. Under Rev. St. 1889, § 6287, providing that no execution shall issue from the circuit court on a transcript from a justice, where defendant is a resident of the county, unless an execution from the justice has been issued and returned nulla boua, an execution issued from the circuit court without such prior return is valid if the defendant is a nonresident at the time of issuance.

Appeal from circuit court, Jackson county; James Gibson, Judge.

Action by Reka Huhn against William 1. Lang and others to set aside deeds. From a judgment for plaintiff, defendants appeal. Reversed.

Thompson & Wilcox, for appellants. Fyke, Yates & Fyke, for respondent.

GANTT, P. J. This was an action commenced in the circuit court of Jackson county to set aside a sheriff's deed and a subsequent quitclaim from the judgment debtor to the purchasers. In the year 1888, John A. McDonald was the owner of the north 34 feet of lot 4, Troost Avenue Heights, an addition to Kansas City, Mo. McDonald conveyed the lot to John H. Reed, and Reed sold and conveyed it to plaintiff, Reka Huhn, in 1889. William I. Lang obtained a judgment against McDonald on June 9, 1888, for $66 and costs. before J. T. Clayton, a justice of the peace within and for Kaw township, in Jackson county, and on June 12, 1888, filed a transcript of said judgment in the office of the clerk of the circuit court of said county prior to the conveyance to Reed by McDonald. On the 28th day of September, 1888, the justice issued an execution on said judgment, directed to, and it was received by, the constable of Kaw township. Ezra W. Kingsbury was constable at the time, and received said execution. His term of office expired in November, and Thomas C. Clary was elected and qualified as his successor as constable of said township. Kingsbury turned over the execution to Clary without having returned it. Clary returned it with the following indorsements on it: "Received by me this 28th day of September, 1888. E. W. Kingsbury, Constable of Kaw Township." "Executed the within execution in the county of Jackson and state of Missouri on the 26th day of December, A. D. 1888, by making

diligent search, and failed to find any goods or chattels on which to levy this execution since the 28th day of September, 1888, and returned the same not satisfied. Thomas C. Clary, Constable, by H. J. Bone, D. C." McDonald was a resident of said township at the time the justice rendered judgment, and remained such until June, 1889, since which date he has been a nonresident of the state. Lang sued out an execution from the office of the circuit court on December 5, 1889, and the lot was sold on January 14, 1890, and Lang became the purchaser and obtained his sheriff's deed, which recites a notice of the sale in the Kansas City Times, and a sale of all the right, title, and interest of McDonald in said lot. This sheriff's deed was duly acknowledged and recorded in the recorder's office in Book B, No. 390, p. 306. Lang, on June 1, 1890, sold and conveyed said real estate to defendant Sarah De Viney. Sarah De Viney and her husband, defendant John De Viney, on July 1, 1890, executed a deed of trust to defendant George Hoffmann to secure to defendant Lang the sum of $850. On the day of February, 1890, defendant McDonald executed a quitclaim deed conveying said real estate to defendant Lang. The transcript of said justice's judgment referred to in said sheriff's deed was filed in the office of the clerk of the circuit court aforesaid prior to the conveyance of said real estate by said McDonald to said Reed, plaintiff's grantor; and hence, if the law has in all respects been complied with in reference thereto, the same constituted a lien upon the said real estate. Plaintiff asks that the sheriff's sale be set aside, and that the various deeds above mentioned under which defendants claim be declared null and void for the following reasons: (1) That the execution issued by the justice of the peace was returned too soon; (2) That the execution issued by the justice of the peace was received by one constable, and returned by another, his successor. Defendants' answer admits the matters set out in the petition as to the conveyances, and denies other matters not now in issue.

By the statute, executions issued by justices of the peace are required to be dated on the days they are issued, and be returnable in 90 days from their date. They are required to be directed to the constable of the township where the justice resides, and run against the goods and chattels of the defendants. The party recovering the judg ment can file a transcript in the office of the Iclerk of the circuit court, and it becomes a lien on real estate from the time of filing the transcript as judgments of the circuit courts; but no execution can be sued out of the circuit court on the transcript judgment if the defendant is a resident of the county, "until an execution shall have been issued by the justice directed to the constable of the township in which defendant resides, and returned that the defendant had no goods or

Rev.

chattels whereof to levy the same." St. 1879, § 2999; Rev. St. 1889, § 6287, amended.

1. It will be observed that this is a direct proceeding to set aside the sale, not a collateral attack upon it. The rule has obtained in this state since the decision in Dillon v. Rash, 27 Mo. 243, that when the time is fixed by law for the return of an execution it should not be returned before that time, and, if it is, it is an irregularity. Marks v. Hardy, 86 Mo. 232. The statute gave 90 days in this case. The writ issued September 28th and was returned December 26th. By sec tion 6570, Rev. St. 1889, "the time within which an act is to be done shall be computed by excluding the first day and including the last." Excluding September 28th, the day of issue, and counting the 26th of December, we have 89 days. This execution was returned prematurely. If the right to an execution from the office of the circuit clerk de pended, then, on the execution from the justice, and a nulla bona return at the expiration of 90 days, it is clear that the plaintiff in that judgment was not entitled to it; but it is only when the defendant is a resident of the county that there is any restriction placed upon the transcript judgment creditor. Under all other circumstances he has all the privileges and rights that pertain to creditors who have obtained judgments in the circuit court in the first instance. The sheriff's deed in this case makes no recital of the issue of an execution by the justice and a nulla bona return, and the agreed statement of facts concedes that McDonald became a nonresident of the state in June, 1889, and continued so until the execution was issued by the circuit clerk, December 5, 1889. The language of the statute is that "no execution shall be sued out of the court where the transcript is filed, if the defendant is a resident of the county." "If he is a resident" when? Manifestly when the execution is sought from the circuit court. If he is not then a resident, there is no obstacle in the way of obtaining the execution. It goes as a matter of right as on any other judgment of the circuit court. This was so ruled by this court in Sachse v. Clingingsmith, 97 Mo. 406, 11 S. W. 69, and we think correctly. The deed was sufficient on its face, and the facts aliunde the deed support, instead of impeach, its recitals.

2. It becomes unnecessary to pass upon the other contentions,-that Kingsbury had no right to turn over the justice's execution to Clary, his successor. The statute provides that in such cases a sheriff shall turn over all unexecuted writs to his successor. Rev. St. 1889. § 4958. The duties and powers of the constable within the jurisdiction of a justice are identical with those of a sheriff, and the same reason exists why the unexecuted writs in his hands should be turned over to his successor as in the case of a sheriff. Vermont and Oregon the word "sheriff" has been treated in similar statutes as generic.

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1. The statute provides that, if the personalty fail to pay the debts of the deceased, "his executor or administrator shall present a petition,' etc. C. presented a petition, describing himself as "one of the administrators." order of sale recited, "Now, at this day comes C. and E., administrators," and directed them to sell the land.

The

Banks. Julius J. Stowe died in 1874, the owner of the land in dispute. Clarence Buell and Elizabeth B. Stowe administered upon the estate. They conveyed this section of land to James S. Martin and William L. French by an administrators' deed dated the 9th January, 1877.

The first contention is that this administrators' deed is void, because the order of sale was granted on the petition of Buell alone, the administratrix not joining therein. As to this question the record discloses the following facts: Buell presented to the probate court a petition for an order to sell this and other real estate, describing himself therein as "one of the administrators of the estate of J. J. Stowe, deceased." On the presentation of this petition the probate court made an order to show cause why the land should not be sold to pay the debts of the deceased, in the usual form. Thereafter the court made an order which begins with this recital: "Now, at this day come Clarence Buell and E. B. Stowe, administrators

of said estate." C. made report that he had sold it, and the sale was approved, "the administrators" being ordered to make a deed to the purchasers, which they did. Held, that there was no irregularity available for collateral attack.

2. Purchasers of land at administrators' sale agreed with the administrators to resell at any time within a year for the same price with interest, and on receipt of such amount made a deed to the administrators. The repurchase was reported to the court, which, debts being still unpaid, ordered the sale of this and other land. The administrators sold, and gave their warranty deed to one who had notice of their trust. It appeared that the whole transaction had been for the benefit of the estate, and that the full price received was accountd for. Held, that the heirs should not be allowed to redeem from the grantee after 15 years.

3. When, after petition of the administrators, and order to show cause, land is ordered sold to pay debts, and the administrators afterwards repurchase it for the estate, a second order to sell it need not be founded on an order to show cause.

4. When administrators, finding that the court will not authorize them to borrow money to pay debts, obtain an order to sell land, and in selling it take from the vendees an agree ment to resell within a year for the same price with interest, the transaction does not constitute a mortgage.

Appeal from circuit court, Audrain county; E. M. Hughes, Judge.

Petition in ejectment and to redeem land by Henry Stowe and others against Martha Banks and others. Judgment for defendants. Plaintiffs appeal. Affirmed.

J. G. Trimble, for appellants. George Robertson, for respondents.

BLACK, C. J. The petition contains two causes of action. The first is an action of ejectment to recover possession of section 12, township 50, range 7, in Audrain county, and the second is a suit in equity to redeem the same land. The three plaintiffs are the heirs at law of Julius J. Stowe, and the defendants are the widow and heirs of Thomas

Then follows a finding that

the order to show cause had been duly published, and an order that the "administrators sell the lands at private or public sale." Thereafter Clarence Buell, as administrator, made report that he had sold the section now in question to James S. Martin and William L. French, at private sale, for $3,000, it having been appraised at $3,800. This report was approved on the 9th January, 1877. The order of approval contains this recital: "Now comes C. Buell, one of said administrators of said J. J. Stowe, and submits to the court his report of sale," etc. This order of approval directs "the administrators" to execute a deed to the purchasers. The deed bears the same date, is in due form, and is signed by the administrator and the administratrix. Our statute provides that, if the personal estate shall be insufficient to pay the debts of the deceased. "his executor or administrator shall present a petition to the probate court," praying for the sale of real estate. It has been held under a like statute that, where there are two or more administrators, all should join in the petition for a license to sell, and that a license granted to one executor or administrator is invalid, and this for the reason that the powers of administrators are joint. Hannum v. Day, 105 Mass. 34. Other courts have asserted a different rule. Melms v. Pfister, 59 Wis. 186, 18 N. W. 255; Jackson v. Robinson, 4 Wend. 436. Regularly all of the administrators or executors should apply for the order, but in this case both appeared in the probate court, and made proof of the order to show cause, and the order to sell is joint, and both joined in executing the deed. The most that can be said is that the proceedings are irregular, and we have no hesitancy in saying the sale is valid in a collateral proceeding like this. It may be doubted whether the objection would be

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