Clark v. Conway

1. Clark v. Maguire, 16 Mo. 302, affirmed. 2. It is not sufficient to object generally that testimony offered is illegal and incompetent; some specific objection to its admission should be pointed out.

Appeal from, SL Louis Court of Common Pleas. The facts of this case sufficiently appear in the opinion of the court, and in the report of the ease of Clark v. Maguire (16 Mo. 302). Upon the trial, the following instruction was given to the jury, on the motion of plaintiff: “1. The burden of proving the defence of fraud rests upon the defendants.” The court, on its own motion, gave the following : “ 2. If the jury find from the evidence that the creation of the trust set up and shown by the plaintiff was contrived for the purpose of protecting the property, profits or earnings of Dennis Marks from his creditors, or for the purpose of hindering or delaying them in the collection of their demands against said Marks, and that the property in question was the property of said Marks, or acquired by him from his profits or earnings, then the jury should find for the defendant.” The court gave the following instructions on the motion of the defendant: “ 8. The fraud charged and set up by the defendant in this case is a question of fact for the jury, and they are to determine it from all the facts and circumstances given in evidence, and fraud may be proved by circumstances, as well as by positive testimony, or by both. 4. To entitle the plaintiff to recover in this action, he must show in evidence, to the satisfaction of the jury, that the property in question is the same, or a part of the same wheat and flour that was conveyed to him by the deed read in evidence, dated July 2, 1847, or that the propeity in question was purchased with the money or with the proceeds of the property that is mentioned in said deed, and the burden of making this proof rests with the plaintiff. 5. If the jury believe from the evidence that the property in question was in the possession of Dennis Marks at the time the same was levied upon under the execution in favor of Maguire, then the jury should find for the defendant, unless the jury shall at the same time believe from the evidence that the said property was purchased with the 'money or property that was conveyed and assigned to the plaintiff, under the deed made to him by J. H. Alexander, read in evidence, and the burthen of proving that the property in question in this suit was so purchased rests on the plaintiff.” • The following, prayed by defendant, were refused : “1. If the jury find from the evidence that Dennis Marks purchased and paid for the wheat that was levie ’ an by the defendant, and also that he purchased and paid for the wheat from which the flour that was levied upon was manu actu '0 'el ? ing them in the collection of their debts against said Marks, then the jury should find for the defendant.55 Exceptions were duly taken. The jury found a verdict for plaintiff. A motion for a new trial having been overruled, defendant appealed to this court. I. The court below improperly admitted in evidence the deed purporting to have been made by J. H. Alexander to plaintiff. Alexander had no authority or right to make said deed; the plaintiff in his petition does not claim or set up a special property in the wheat and flour sued for, but sues in his own right and as having a general property in the subject matter of the suit; the said deed, th ■ efore, was not competent testimony under said petition. The execution of the deed was not proved. The recitals in the deed were not evidence of the facts therein stated. The execution of the power of attorney was not proved, and it was not therefore competent testimony in the case. II. The instructions asked by the defendant, which were overruled, should have been given to the jury. 1 here was evidence both positive and presumptive, that Dennis Marks, with his own means and credit, purchased the wheat in question and manufactured the flour therefrom ; there was evidence also that Mrs. Marks consented that the money and property secured to her by the deeds of trust should go into the possession of her husband ; and that it did go into his possession and control, there was no question. It was entirely competent for her to make such disposition of her money and property.