fraud, a general allegation is insufficient. The facts must be specially
pleaded. (Phenix Iron Works Co. v. McEvony, 527.)
See Judgments, 3; Replevin.
FRAUDULENT CONVEYANCES.
1. FRAUDULENT CONVEYANCES-CONSIDERATION MERE-
LY "GOOD."-If one makes a conveyance of his property on a con-
sideration which is merely good, as contradistinguished from one
which is valuable, it is without effect, inoperative and voidable
against any debt the grantor nay owe at the time of its execution;
and this without reference to the good intentions of the parties, and
the solvency or insolvency of the grantor, at the time of the execu-
tion of the conveyance. Such a conveyance, when not tainted with
actual fraud, is void only as to antecedent debts; but if made with
an intent to hinder, delay, and defraud creditors, which is actual
fraud, it is void as to subsequent, as well as to existing creditors.
(Yeend v. Weeks, 50.)
2. FRAUDULENT CONVEYANCES-WHO MAY ATTACK.—
HOW FAR VALID.-It is only those persons whose rights are inter-
fered with, those who are injured by conveyances alleged to be
fraudulent, that have the right to interfere to set them aside.
Strangers have no interest, and therefore no right to question their
validity; and, between the parties and their privies, they are valid.
(Yeend v. Weeks, 50.)
3. FRAUDULENT CONVEYANCES-ASSAILANT OF, MUST
PROVE EXISTENCE OF DEBT TO HIM.-If one aggrieved by a
conveyance calls its validity in question, and moves to set it aside,
the parties claiming under it may dispute his claim by demanding
that he shall prove himself to be a creditor of the grantor, with a
valid, subsisting debt against him. The fact of primary importance
in such a proceeding, whether it be to set aside the conveyance, as
constructively fraudulent and therefore voidable as against past due
debts, or actually fraudulent, and voidable as to future, as well as to
past, obligations, is the existence of a debt, for the payment of
which, except for the conveyance, the property transferred could be
made liable. The grantee in the conveyance nust have an opportu
nity to dispute the debt, and may plead any defense, not merely per-
sonal, which the grantor or debtor could have made against it.
(Yeend v. Weeks, 50.)
4. FRAUDULENT CONVEYANCES JUDGMENT AS EVI
DENCE OF DEBT.-A judgment rendered by a court of competent
jurisdiction, in the regular course of judicial proceedings, without
fraud or collusion, is conclusive evidence of the amount and exist-
ence of a debt, at the time of its rendition, though it is not evidence
of an indebtedness existing at any time anterior to its rendition.
Therefore, in a proceeding by the plaintiff against the defendant and
his grantee, to set aside an alleged fraudulent conveyance, such judg-
ment, whether rendered prior or subsequent to the conveyance, is
competent evidence of the debt, and the plaintiff is entitled to ask
that the conveyance be set aside as he may be affected or injured
thereby. (Yeend v. Weeks, 50.)
5. FRAUDULENT CONVEYANCES-WHEN JUDGMENT IS
SUFFICIENT EVIDENCE OF DEBT-BURDEN OF PROOF.—
a creditor files a bill to set aside a conveyance made by his debtor,
on the ground of actual fraud, a judgment recovered by the com-
plainant against the debtor, after the execution of the alleged fraud-
ulent conveyance, is, of itself, competent and sufficient evidence of
the existence of the debt, and establishes the creditor's right to at-
tack the conveyance; but the burden of proving the actual fraud is
is upon the complainant. (Yeend v. Weeks, 50.)
6. FRAUDULENT CONVEYANCES-WHEN JUDGMENT IS
INSUFFICIENT EVIDENCE OF DEBT-BURDEN OF PROOF.-
If a creditor files a bill to set aside a conveyance made by his debtor,
on the ground that it was merely voluntary, and, therefore, only
constructively fraudulent, the judgment, having been rendered sub-
sequent to the execution of the conveyance, is not, of itself, sufficient
evidence as to the existence of the debt; but there must be independ-
ent, distinct evidence of facts showing that the cause of action au-
thorizing the rendition of the judgment is older than the conveyance.
If this is proved, the conveyance must yield to the judgment; and the
burden is on the grantee to prove that he paid an adequate and valu-
able consideration. (Yeend v. Weeks, 50.)
7. FRAUDULENT CONVEYANCES BY SURETY ON ADMINIS-
TRATOR'S BOND.—If it appears, upon a creditor's bill filed to set
aside a conveyance alleged to be fraudulent and void as to creditors,
that the grantor in the conveyance, who was a cosurety with the
complainant on an administrator's bond, owned a farm, and was
engaged with his brother in raising sheep; that two years before a
suit against him as surety on such bond was commenced, he executed
a bill of sale for his share of the sheep to his wife, without dissolving
partnership, and without any apparent change of possession or man-
agement of the property; that a few days before this sale, he con-
veyed his land to a person who, within a short time, reconveyed it to
the grantor's wife; that the bill of sale and the deed for the lands to
the grantor's wife were not recorded until after suit was commenced
against the grantor; that no explanation of such failure was made;
and where neither the grantor nor his wife testifies as to the good
faith of the conveyance of the lands, but both do testify that the
consideration for the sale of the sheep was a debt which the husband
had owed the wife for about twenty years, and it is not shown that
the wife had any money at the time of the conveyance to her, such
transfers of property must be held to have been made with the in-
tent to hinder, delay, and defraud the husband's cosurety on the
bond, and they are, therefore, void. (Yeend v. Weeks, 50.)
8. FRAUDULENT CONVEYANCES-SURETY ON ADMINIS-
TRATOR'S BOND AS A CREDITOR-SUBROGATION.-The liabil
ity of the surety on an administrator's bond, or other contingent obli-
gation, makes him a creditor, within the provisions of the statute of
frauds, from the date of the contract, and, though he has no cause of
action until he has paid the debt, he is entitled to protection against
fraudulent conveyances executed by the principal debtor in the mean-
time. Therefore, the payment of a judgment recovered on the ad-
ministrator's bond, made by a surety on such bond, subrogates him
to the rights of the judgment creditor, with the right to have set
aside a fraudulent and voluntary conveyance made by his cosurety
before the judgment but after the execution of the bond. (Yeend v.
Weeks, 50.)
9. FRAUDULENT CONVEYANCES-OBLIGATION OF ADMIN-
ISTRATOR'S BOND-ONE CONTINGENTLY LIABLE IS A CRED-
ITOR-STATUTE OF FRAUDS-PROTECTION OF CONTINGENT
LIABILITY.-An administration bond is a continuing obligation of
security from the day of its execution to the termination of the ad-
ministrator's authority to act; and though it antedates a voluntary
conveyance, yet the ascertainment of its breach, by proper judicial
proceedings, begun and concluded after the execution of such convey-
ance, will, as between the judgment creditor and the grantor in the
conveyance, relate back to the date of the bond, and be held to be a
debt existing at that time. A person contingently liable is a creditor,
within the meaning of the statute of frauds, and that statute pro-
tects a contingent liability against fraudulent and voluntary con
AM. ST. REP., VOL. LIII. - 63
veyances, as fully as a debt which is certain and absolute. (Yeend
▼. Weeks, 50.)
FREIGHT.
See Carriers, 11-13.
GARNISHMENT.
See Attachment; Check.
See Negotiable Instruments, 5, 6.
1. PROBATE SALES-GUARDIAN AD LITEM.-Probate sales
of a ward's property made by the probate court on proper applica-
tion and showing by the guardian are proceedings in rem, in which
the appointment of a guardian ad litem to represent the ward is not
required or authorized. (Daughtry v. Thweatt, 146.)
2. PROBATE SALES-COLLATERAL ATTACK.—A proceeding
In a probate court for the sale of a ward's property is a proceeding
in rem, and the jurisdiction of the court attaches when the applica-
tion for an order of sale, made by the proper party, and disclosing a
statutory ground for the sale, is presented to, and recognized by, the
court. Whatever of error or irregularity may thereafter intervene,
must be corrected by an appropriate revisory remedy, and is not a
ground for collateral attack on either the decree or the sale made
thereunder. (Daughtry v. Thweatt, 146.)
3. PROBATE SALES-COLLATERAL ATTACK.-A probate sale
of a ward's property for the purpose of reinvestment, made on proper
application and showing by the guardian, cannot be collaterally at-
tacked on the ground that it was made without notice to the ward
and without the appointment of a guardian ad litem for him.
(Daughtry v. Thweatt, 146.)
See Landlord and Tenant, 1.
CORPUS-JURISDICTION.-Under the Missouri
statute the St. Louis court of criminal correction has no jurisdiction,
provided either of the judges of the criminal court are in the city, to
entertain an application to release on habeas corpus a person held in
custody on a charge of murder. (State v. Murphy, 491.)
See Municipal Corporations, 4, 5.
See Deeds, 12, 13; Descent, 1; Distribution.
HIGHWAYS - OBSTRUCTION - DAMAGES-SPECIAL IN-
JURY.-Damages recoverable in a civil action founded upon an ob-
struction of a public highway must be such as is not common to the
whole public, or to everyone who actually does pass, or may travel, over the highway. It must be special, unusual, or extraordinary, but not necessarily singular, and may be the common misfortune of a number, or even a class, of persons, and give to each a right of redress. (Farmers' etc. Mfg. Co. v. Albemarle etc. R. R. Co., 606.) See Railroads, 1.
1. HOMESTEAD - EXEMPTION - INSURANCE MONEY.-Insurance money derived from a policy on the homestead improvements is all exempt, as the courts have no power to say that only a reasonable portion of such a fund shall be exempt. (Chase v. Swayne, 742.)
2. HOMESTEAD-EXEMPTION OF FROM ASSESSMENT FOR SIDEWALK.-A constitutional provision exempting a homestead from forced sale for all debts, except for the purchase money or a part of it, or for an improvement thereon, under a contract made as required by the constitution, or for taxes due thereon, exempts it from forced sale for the payment of an assessment for building a sidewalk in a city, as such indebtedness is not embraced in any of the three classes of debts named. The cost of the sidewalk is not a tax, general or special, the term "taxes due thereon" does not include such assessment; and the legislature cannot, therefore, give a lien upon a homestead for it. (Higgins v. Bordages, 770.)
3. HOMESTEAD-IMPROVEMENTS-INSOLVENT DEBTORS. A debtor, though insolvent, may apply his funds to improvements upon his homestead, and, if the constitution places no limit in value upon the improvements which he may make thereon, his investment, though large, does not constitute a fraud upon creditors for which they may get relief, as the object of the constitutional provision exempting homesteads is to protect the homes of insolvent debtors from forced sale (Chase v. Swayne, 742.)
1. HOMICIDE, DUTY TO RETREAT WHEN ON ONE'S OWN PREMISES.-If, while one is lawfully on his own premises, another advances in a threatening manner and under such circumstances that the former believes, and has reasonable ground to believe, that he is in danger of losing his life or of suffering great bodily harm, he is not obliged to retreat, but may stand his ground, and meet any attack made upon him in such a way, and with such force, as, under all the circumstances, he at the moment believes, and has reasonable ground to believe, is necessary to save his own life or to protect himself from great bodily harm. (State v. Cushing, 883.)
2. MURDER-CORPUS DELICTI-PROOF OF.-If in a murder case it is shown that the body of the deceased, or portions thereof, have been found or seen, and identified, and that the death was caused by the culpable act or agency of another, the corpus delicti may be established by the confession of the accused, corroborated by the testimony of his accomplice. (Anderson v. State, 722.)
3. MURDER-EVIDENCE.-On a trial for murder, arising from an illegal arrest, evidence of the issuance of a capias from another county for the arrest of the defendant is not admissible, provided it was not in the hands of the deceased at the time he attempted to make the arrest. (Miers v. State, 705.)
EVIDENCE OF GOOD CHARACTER OF DECEASED is not admissible on a trial for murder, if his character has not been attacked. (Miers v. State, 705.)
5. MURDER-EVIDENCE OF CHARACTER OF DEFENDANT
On a trial for murder arising from an illegal arrest, evidence that
deceased was informed a short time before the homicide that "you
have a pretty bad man to arrest, and that they would all shoot," is
irrelevant and inadmissible. (Miers v. State, 705.)
6. HOMICIDE.—EVIDENCE OF THE REPUTATION OF THE
DEFENDANT on trial for murder, for peace and quietude, is ad-
missible, to be considered by the jury in determining his guilt, and
as bearing, in connection with all the other facts, upon the ques-
tion of who was the aggressor in the affray. It is admissible, not
only when doubt otherwise exists, but also for the purpose of creat-
ing doubt. (State v. Cushing, 883.)
7. HOMICIDE.-THREATS MADE BY THE DECEDENT &
short time before the fatal encounter, both within and without the
hearing of the defendant, are admissible in evidence on the trial
of the latter for murder, as tending to show the feelings and inter-
est of the decedent toward the defendant at the time of the encoun-
ter, and whether or not the deceased was the assailant, and whether
or not he so acted as to induce in the mind of the defendant an hon-
est belief of an intention to kill or to do him great bodily harm.
(State v. Cushing, 883.)
8. HOMICIDE.-THREATS MADE BY A DECEDENT CAN-
NOT BE EXCLUDED, on the trial of his slayer for murder, on the
ground that there is no evidence, save the testimony of the defend-
ant, that he was at the time of the killing in imminent danger. He
has the right to have his testimony weighed by the jury, and the
court cannot refuse an instruction on the assumption that such tes-
timony is false. (State v. Cushing, 883.)
MURDER-ALIBI-INSTRUCTIONS.-It is reversible error for
the court to fail to charge the jury with reference to an alibi, if the
accused has testified that he was not at the place of the homicide
when the deceased was killed, and had nothing to do with the kill-
ing. In such case the error is intensified if the jury is instructed
upon the law of self-defense, when there is not the slightest circum-
stance presenting this defense. (Anderson v. State, 722.)
10. HOMICIDE - EVIDENCE - CLOTHING OF THE DECE-
DENT, TAKING TO THE JURYROOM.—The clothing worn by the
decedent at the time he was shot, and the gun with which the shoot-
ing was done, are admissible in evidence against the defendant,
and the court may permit the jury to take them to their room when
they retire to consider their verdict. (State v. Cushing, 883.)
See Arrest, 3; Habeas Corpus.
1. COMMUNITY PROPERTY, FOR WHAT DEBTS ANSWER-
ABLE.-The community real property is not liable for the separate,
or individual, debts of the husband, whether contracted in this state
or elsewhere. (La Selle v. Woolery, 855.)
2. CONFLICT OF LAWS-COMMUNITY PROPERTY.—A debt
incurred in another state, where it is the individual debt of the bus-
band, and enforceable only against his separate estate, retains the
same character after it is removed to this state, and therefore the
community property of himself and his wife afterward acquired in
this state cannot be taken for its satisfaction. (La Selle v. Woolery,
855.)
See Dower; Equity, 5; Insurance, 21, 22; Slander, 6; Witnesses, 8, 4.
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