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McNealey v. Murdock.

influence over the mind and will of the testatrix, and the only testimony of such influence should be the evidence of one whom the jury should consider a perjured witness, it might, without instruction to the contrary, conclude that the undue influence was well proven by the discrimination of the testatrix among her children, and find accordingly, and the court would be powerless to correct such error for the reason that it would be ignorant of the ground on which the jury proceeded to its verdict. The result of the failure of the court to instruct upon the office to which such discrimination should be confined, would work an absurdity which might be pitiful in its results. The law is that in such cases it is the duty of the court to instruct the jury that in an issue of this kind the office of such testimony is auxiliary only, and can only be considered in connection with evidence directly tending to show that undue influence was an element in the concocting of the will. This was undoubtedly the theory upon which these two instructions were given. They were intended to, and did tell the jury, that if there was direct evidence tending to show that undue influence had been exercised over the testatrix in the execution of the will, then and then only, her discrimination between those apparently having equal claims upon her bounty, might be considered as the result of such influence in the direct sequence of cause and effect, and not of her own free will. Each of these elements is harmless in itself. It requires both to constitute the wrong. When a cause is shown which may be either innocent or harmful in its effect, and an effect is produced which may spring from either an innocent or guilty cause, the two must be combined to complete the legal wrong which supports the action. This is the simple theory upon which this class of instruction stands, and we think the two instructions, number five for the respondents and number six for the appellant, clearly express it. Spencer v. Spencer, 221 S. W. 58, is in direct line with this reasoning. In that case we held that there was no evidence of undue influence, and that, therefore, discrimination

Dalton v. Barron.

constituted no wrong, but was simply the exercise of the testator's legal right.

Finding no error in the record, we affirm the judgment of the Macon Circuit Court. Ragland and Small, CC., concur.

PER CURIAM:-The foregoing opinion by BROWN, C., is adopted as the opinion of the court. All of the judges concur, except James T. Blair, J., not sitting.

G. W. DALTON, Appellant, v. WILLIAM N. BARRON, JAMES J. BARRON and MOLLIE DUNKY.

Division One, March 14, 1922.

1. JUDGMENT LIEN: Property Fraudulently Conveyed. The lien of a judgment extends to real estate of the judgment debtor which he has fraudulently conveyed to hinder or delay his creditors.

2.

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-: Creditor's Bill: Exhausting Legal Remedies. Where the judgment is a lien upon real estate fraudulently conveyed by the judgment debtor to hinder and delay his creditors, the judgment creditor may maintain a suit in equity to set aside such fraudulent conveyance and enforce the lien of his judgment against such real estate, without first having execution issued and such property sold thereunder. Nor is he compelled to have such execution issued, and to have other property of the judgment debtor sold thereunder before being entitled to maintain his suit in equity to set aside such fraudulent conveyance. 3.

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: Two Judgment Debtors. A judg ment creditor, having a judgment against two persons which is a lien upon the real estate of one of such judgment debtors fraudulently conveyed by him to hinder or delay his creditors, may maintain a suit in equity to set aside such fraudulent conveyance and to enforce his lien against such property so fraudulently conveyed, without exhausting his legal remedies against the property of the other judgment debtor.

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-: Appeal Bond. A judgment creditor, whose judgment is a lien upon real estate of the judgment debtor fraudulently conveyed to hinder or delay his creditors, cannot be compelled to resort to an appeal bond to make his judgment,

5.

Dalton v. Barron.

but may maintain a suit in equity to set aside such fraudulent conveyance and to enforce his lien against the property so fraudulently conveyed.

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: Pleading: Stating Cause of Action: Case Adjudged. One of the defendants made a lease of certain real estate to a Store Company for sixteen years at an agreed rental, covenanting that she had good right, etc. The company entered and expended large sums in improving the property. Thereafter an action of ejectment was brought against the company by one claiming a superior title, and the lessor at her request was admitted to defend on the ground that she was landlord, etc. The suit, after three trials in the circuit court and three appeals to the Supreme Court, resulted in a judgment for possession and damages against both defendants. The company lessee on the last appeal gave an appeal bond, upon which another of the defendants in this suit was surety, and to secure the surety made a note and deposited collateral with a bank of which such surety was a large owner. This surety was a lawyer and had represented the lessor in some matters connected with the litigation and had full knowledge of all the facts involved. Just before the third trial in the circuit court the lessor transferred to this lawyer and another all her property, including that involved in this suit, to hinder and delay her creditors and to prevent its being taken to pay any judgment rendered against her in the ejectment suit. After the affirmance of the last judgment in such ejectment suit, plaintiff, a large stockholder of the Store Company, lesee, bought and took an assignment of such judgm nt and, in order to save the collateral put up by the company to secure the sureties on the appeal bond, released the sureties on such bond, including the defendant lawyer. Plaintiff then began this suit to set aside such fraudulent transfer of her property by the lessor, setting up all the facts and charging full knowledge by defendants of the fraudulent purposes of the lessor and participation therein by them. Held, the petition stated a good cause of action, and the demurrer to it was improperly sustained.

Appeal from Butler Circuit Court.-Hon. Almon Ing, Judge.

REVERSED AND REMANDED.

Sam M. Phillips, E. R. Lentz, Ed. L. Abington and Atkinson, Rombauer & Hill for appellant.

Dalton v. Barron.

(1) The plaintiff before instituting the present suit to set aside the fraudulent conveyance from Mollie Dunky to Barron did not have to exhaust his legal remedies. Plaintiff would not be denied redress in a court of equity, simply because, if such be the fact, he had an adequate remedy at law against some party other than the defendant Dunky. Simpson v. Smith, 196 Mo. App. 523; Lime & Cement Co. v. Bank, 158 Mo. 272; Lenox v. Earls, 185 S. W. 234; Pocoke v. Peterson, 256 Mo. 501. (2) The plaintiff had two remedies which he could pursue with reference to the property fraudulently conveyed from Mollie Dunky to the defendant Barron: First, he could have had an execution issued and levied on this property, which is now in the name of the defendant Barron, and could have put the property up and sold it, and if he desired bought it in at the sale; or, plaintiff could have pursued the method pursued in this case. Welch v. Mann, 193 Mo. 326; Oldham v. Wade, 273 Mo. 231; Spindle v. Hyde, 247 Mo. 32; Nichols & Sheppard Co. v. Hubert, 150 Mo. 624; Natl. Bank v. Coran, 109 Mo. 51; Barrett v. Foote, 187 S. W. 67. (3) There are two classes of creditor's bills (to which character of litigation the instant suit belongs): one to reach the equitable assets or property of the debtor on which an execution at law cannot be levied; and the other in aid of an execution at law, as to set aside an encumbrance or a transfer of property made to defraud creditors. In the first class the creditor must allege and show that he has exhausted his remedy at law, while in the second it is sufficient to show that his claim has been reduced to judgment. State Bank v. Belk, 94 N. W. 618; Hodge v. Gray, 68 N. W. 979; Newman v. Willets, 52 Ill. 101; Barber v. McMicking, 155 N. W. 387; Wadsworth v. Schisselbauer, 19 N. W. 390. (4) Defendant takes the position that the plaintiff cannot maintain this action against him for the reason that it has an adequate remedy at law against the Wright-Dalton-Bell-Anchor Store Company. It has been held repeatedly in this State that the fact that plaintiff may have a remedy by action at law against

Dalton v. Barron.

a third person, as for instance on a bond, furnished no ground for refusing equitable relief. Lime & Cement Co. v. Bank, 158 Mo. 272; Roll v. Company, 52 Mo. App. 60; Simpson v. Smith, 196 Mo. App. 523; Kelly Co. v. Gail, 34 Mo. App. 94; Peters Shoe Co. v. Arnold, 82 Mo. App. 1; McDonald v. Hoover, 142 Mo. 484; Gentry v. Field, 143 Mo. 399. (5) To oust equity jurisdiction a remedy at law must be so complete that it obtains at present a full, complete and adequate remedy at law. Pocoke v. Peterson, 256 Mo. 503; Hanson v. Neal, 215 Mo. 256. Where it is doubtful whether relief can be had at law, equity will take jurisdiction. West v. Wayne, 3 Mo. 16; Barrington v. Ryan, 88 Mo. App. 85. (6) Defendant next contended in the trial court that the plaintiff has not pleaded the acts of fraud specifically enough; that is to say, that he has charged fraud in generalities and not specifically. The petition is not at all guilty of the charge thus preferred. (a) We charge specifically, and narrate the facts specifically, that the transfer of the property from Mollie Dunky to Barron was made after institution of the suit of Orchard v. Wright-Dalton-Bell-Anchor Store Co., and Mollie Dunky. The transfer of property so made after suit begun is a badge of fraud. Mason v. Perkins, 180 Mo. 702; McCullom v. Crain, 74 S. W. 650; 20 Cyc. 444, note 93. (b) It is also further alleged specifically that when Mollie Dunky made the transfer of the property described in plaintiff's petition to William N. Barron, she absolutely stripped herself of all property of all kinds which she owned, and that such fact was known to the defendant Barron. Such a transfer of all the property of the debtor is a badge of fraud. 20 Cyc. 449; Benne v. Schnecke, 100 Mo. 250; Segar v. Thomas, 107 Mo. 635; Jacob Co. v. May, 78 Mo. App. 323. (c) It is further alleged specifically that this property was worth at the time of the sale the sum of fifteen thousand dollars, and that it was sold for the sum of four thousand dollars, and that such sum was grossly inadequate. That inadequacy of consideration is a badge of fraud. Auction & Com. Co. v. Mason, 16 Mo. App. 473; Robards

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