White v. Schroetter , 208 Mo. 537 ( 1907 )

VALLIANT, P. J.

Plaintiff sues .in ejectment for the possession of forty acres in Barry county. Defendant’s answer was a general denial except that he admitted possession. At the trial a jury was waived and the cause was tried by the court. The judgment was for the defendant and the plaintiff appealed.

It was admitted that Adam Schroetter, the father of defendant, was the common source of title. The plaintiff’s evidence was as follows: A judgment rendered in the circuit court of Barry county in favor of one Sheets against Adam Schroetter, September 4, 1902, for $661.34; execution on that judgment, levy and sale of this land by the sheriff February 12, 1903, at which sale the plaintiff became the purchaser and received the sheriff’s deed which was in due form.

The evidence for defendant was a warranty deed from Adam Schroetter and wife to defendant conveying this land dated February 13, 1894, duly acknowledged and recorded. The consideration mentioned in the deed was love and affection and one dollar, subject to a debt of $1,000 secured by deed of trust on eighty acres, of which the forty so conveyed was one-half, and the assumption by defendant of $500 as the one-half of that debt applicable to his forty acres. Then defendant introduced oral evidence to the effect that a further consideration for this deed was an agreement by himself and his brother John on the one part and his father on the other that they would take care of their father and support him during the rest of his life. ■ And there was testimony tending to show that they were carrying out that agreement, and that defendant had executed a new mortgage on the forty acres, and with proceeds of that, had paid his share of the original $1,000 mortgage.

Contra, the plaintiff introduced evidence to show that defendant and his brother were at the date of the alleged agreement minors and could not make such a contract; also that the land was, when taken in connection with forty acres on which Adam Schroetter resided and which constituted his homestead, worth more than $1,500, and that the old man was in debt. There was some other testimony as to paying taxes, etc., but it is unnecessary to mention it.

All the oral evidence was incompetent. The title to this forty acres passed to the defendant by the deed from Adam Schroetter and wife in February, 1894, more than eight years before the Sheets judgment under which plaintiff claims was rendered, and the records so showed.

Appellant in his brief refers to “suits in equity” and, as if this were such a suit, argues that the deed from father to son should he set aside as having been made to defraud creditors. But this is not a suit in equity, it is an action at law; there is not a trace of equity in the pleadings. The defendant’s deed cannot be attacked collaterally, it cannot be assailed except in a proceeding in equity. We do not mean to imply that the evidence would have justified the setting aside of this deed even if this had been a suit in equity.

In the face of the defendant’s record title the court could have rendered no other judgment than it did.

The judgment is affirmed.

All concur.