(232 S.W.)

Stanford and wife, to George B. Cox, and [ "Q. He simply conveyed this property to Agnes Cox, his wife. On June 28th there- you as trustee? A. For the old folks." after, Wilgus was arrested, and his divers frauds became public. Defendant Cox said he took the deed to the property for the benefit of his father, mother, and aunts, the other defendants herein. They held some $12,000 of the Wilgus paper, most of which was spurious. The answer in this case admits that the conveyance was in part payment of indebtedness to defendants, in these words:

In the testimony of Cox on the witness troversy about the existence of all these elestand the following appears:

had reasonable cause to believe, etc., than in the case referred to. The order on which plaintiff here sues was not given till May 23, 1918, three weeks after plaintiff had returned from Paola, Kan., where and when he received the assignment of the Howell county property. We held that he received that assignment under such circumstances as would amount to a preference within the meaning of the Bankruptcy Act, and plaintiff knew no less on May 23d than he knew on May 1st, and from the record it would appear that he knew much more concerning Wilgus and his debts. The judgment in favor of the intervening trustee is affirmed."

[2] The same can be said of Cox in the present case. He knew of the Paola transaction, and was interested in the conveyance then obtained. Sharp was acting for both

as would lead an ordinarily prudent business | facts in the instant case are more pronounced man to conclude that the transfer would result and tend more strongly to show that plaintiff in a preference. Collier on Bankruptcy, supra, p. 904; Hussey v. Richardson-Roberts Dry Goods Co., 148 Fed. 598, 78 C. C. A. 370; and numerous cases cited in the note to the text cited. Sharp, when he took his assignment, knew that Wilgus was guilty of at least two transactions involving forgery in which several thousand dollars had been obtained from unsuspecting investors, and that he himself was one of the victims. He had no information of the financial responsibility of Wilgus, and did not endeavor to inform himself by asking Wilgus or otherwise. He made no inquiry or investigation. Gentry, speaking of the interview he and Sharp had with Wilgus on the night of April 22d, says that he got suspicious about it. After I got suspicious about it, we talked about it next day. I said to Frank [defendant Sharp], "He may have other loans around town here; we don't know." Of course, Frank said there might possibly be some. This of them. Cox likewise got half of the Frank said there might possibly be some.' This $1,500 involved in the last above case from conversation took place before Sharp went to Paola; yet he did not endeavor to inform him- the Court of Appeals. He knew of this prefself of the other possible loans around town.' erence on May 23d, and shared therein. He Under the law a preference may result al- also knew that his folks had $12,000 of the though the creditor had no knowledge of the Wilgus paper, and proceeded to get the prefdebtor's insolvency. All that is necessary is erence involved in this case. that the facts surrounding and attending the transfer are such that an ordinary business man having knowledge of such facts would have believed that the bankrupt was insolvent. The creditor's conclusion that the debtor was all right is not controlling. In re States Printing Co., 238 Fed. 775, 151 C. C. A. 625, and cases there cited. It is pointed out in Newman v. Dry Goods Co., 174 Mo. App. 528, 160 S. W. 825, that a distinction must be observed between facts and circumstances relative to a debtor's solvency which would incite a man of ordinary prudence to make inquiry, and those facts and circumstances which only excite suspicion. The former is equivalent to notice of all the facts that a reasonably diligent inquiry would disclose, while the latter is deemed insufficient to constitute reasonable cause to believe that a preference would result. We cannot say that the evidence tending to show Sharp had knowledge of facts and circumstances touching upon the solvency of Wilgus amounted to no more than a suspicion. As to whether Sharp had reasonable cause to believe that the assignment of the Howell county property would result in a preference to him and Cox over other creditors of the same class was a question of fact, and if there was any substantial evidence tending to support the finding below that he did have such reasonable cause to so believe, then we cannot interfere. We think that there was substantial evidence tending to support the judgment below in favor of the trustee for the $500 and $1,000 payments on May 12th and 23d, and that judgment is affirmed."

These opinions of the Court of Appeals follow the trend of authority upon the question involved here, as was involved there. We think those two cases well ruled by that court, and, the facts here being the same, the judgment in this case should be affirmed. It is so ordered. All concur.

KOEHLER v. LANGE et al. (No. 22129.) (Supreme Court of Missouri, Division No. 1. June 6, 1921.)

Liens

7-Defendant placing fictitious mortgage on property conveyed without consideration held entitied to equitable lien.

Defendant, with the idea of protecting her interests, executed, without receiving any consideration therefor, fictitious notes and deeds of trust of her real estate for $7,000, the value of the real estate, in favor of a friend, and conveyed also without consideration the real estate to plaintiff, her brother, subject to the deeds of trust. The brother refused to reconvey when requested, and the nominal mortgagee refused to have anything to do with the notes or deeds of trust, and so defendant signed the mortgagee's name on each of the notes and directed the trustee to foreclose the trust deeds, which foreclosure plaintiff seeks to enjoin. Held, on evidence, that there was no consideration for the notes, deeds of trust, or defendant's conveyance to plaintiff; that defendant was entitled to an equitable lien on the property for $7,000, and to have it foreclosed.

In Sharp v. Harrington (Craig, Intervener) 219 S. W. loc. cit. 97, the same court said: "This is a companion case to Craig, Trustee, v. Sharp et al., 219 S. W. 95, where all the essential facts of the present case are Appeal from Circuit Court, Jackson Counstated, and to which reference is made. The ty; Thomas J. Seehorn, Judge.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

(232 S.W.)

Suit by George W. Koehler against Mary Mary Koehler did transfer all right, title, Koehler Lange and another. From decree and interest in and to the above-mentioned for defendants, plaintiff appeals. Affirmed. property, according to said agreement and understanding.

The plaintiff instituted this suit in the circuit court of Jackson county against the defendant to enjoin the sale of a certain house and lot situated in Kansas City, Mo., particularly described in the petition and evidence. The trial resulted in a decree in favor of the defendant, and the plaintiff duly appealed the cause to this court.

The facts of the case are few, and all but one undisputed, and around that one the result of this lawsuit hinges.

That Mary Koehler on December 1, 1916, made a fictitious note and deed of trust, in favor of one Laura Craw, in the sum of $5,000, and that this note and deed of trust never left the possession and control of the said Mary Koehler, until just prior to the 4th day of April, 1918, and that no money or other consideration was ever given for said fictitious note and deed of trust.

The evidence also shows that on or about April 4, 1918, the said Mary Koehler made a second fictitious note and deed of trust, in favor of the same Laura Craw, in the sum of $2,000, and neither of said notes and deeds, of trust securing the same was ever delivered

loaned said Mary Koehler any money upon same nor exercised any control or ownership of said $2,000 fictitious note and deed of trust.

I shall first state the undisputed facts: The plaintiff and defendant were brother and sister, and John G. Koehler was their father, who departed this life November 12, 1909, testate, leaving all his property, including to said Laura Craw, and Laura Craw never the lot in question, to his wife, Margaret Koehler, who died testate, September 26, 1916, leaving practically all of her property to her daughter, Mary Koehler, the defendant, which consisted of the real estate in question worth about $6,000 and about $5,000 or $6,000 in money. She also gave to a son, Frank Koehler, $100 and $500 to George W. Koehler, the plaintiff. Both of these parties accepted the bequests made to them.

That the plaintiff at the time of the death of the mother was about 26 years of age, and the defendant was about 35.

Defendant Mary Koehler Lange went to work at the age of 14 and paid $10 per month toward the support of the family and in addition thereto paid sums toward the purchase and maintenance of the home.

There is no evidence that plaintiff ever paid any money toward the purchase price of the property, but after he was old enough to work he paid from $3.50 to $5 per week board.

It should here be stated that later Mary Koehler married Frank Lange, the other de

fendant.

That at the time said fictitious note of $5,000 and deed of trust, also the fictitious note of $2,000 and deed of trust, were made, she was the owner of the fee-simple title to said property in controversy, and that she was in fact the owner of both fictitious notes and deeds of trust.

That plaintiff testified that at the time she gave him said warranty deed to said real estate and before said April 4, 1918, she had one mortgage on the property and would place another or second one upon said property, so that he would be protected in case he should get into trouble with any one, and that these two fictitious notes and deeds of trust would be placed in their joint safe deposit box in the Commerce Trust Company for his sole use and benefit, and that he could go and get them any time and have them released of record. That he knew that said notes and deeds had been placed in said box, and claimed them as his, and when taking said warranty deed he knew that these notes We now come to the disputed fact in the and deeds of trust were fictitious and of no case, and I shall state the evidence bearing value, and knew that said notes and deeds upon that fact and the facts and circumstanc-of trust did not represent any value whatever es surrounding it, as disclosed by this record. The plaintiff testified that he and his brother, Frank, became dissatisfied about the way their mother left her property and talked about contesting their mother's will, and talked it over with defendant Mary Koehler Lange, and threatened to bring suit to contest said will in court, and thereafter plaintiff and defendant Mary Koehler reached an agreement, whereby Mary Koehler agreed to and was to transfer the real estate, to wit, all of the north 35, 8 feet of the east 135 feet of lot 1, Murray's Hill, an addition to Kansas City, Mo., and located at the south east corner of Thirty-Ninth street and Warwick boulevard. And further that on the 4th day of April, 1918, by warranty deed, said 232 S.W.-6

and that no money or other consideration was given for them, and knew that said fictitious notes and deeds of trust did not represent any debt and was of no value to any one.

That on December 15, 1918, defendant Mary Koehler wrote plaintiff a letter that these notes and deeds of trust were placed in their joint deposit box of which he was joint owner and had a key to the same, that he could go and get them released of record, and that she "never wanted to cheat him a bit in any way about his mother's estate, but she did," "now she wanted said estate held intact.'

99

That plaintiff and defendant lived together after their mother's death up and to the

time plaintiff went to Seattle, Wash., to subject to the notes and deeds of trust in work in the shipyards, during the war. question.

That defendant Laura Craw did not fur- There was this understanding: That nish defendant Mary Koehler with any should plaintiff return, he would upon demoney or any value upon the fictitious notes mand reconvey the property to defendant, and deeds of trust, and never exercised any and that the notes and deeds of trust should ownership or control over said notes and continue to be held by defendant and remain deeds of trust, and refused to have any-valid and subsisting liens and incumbrances thing to do with said notes and deeds of for her express use and benefit, so that if trust, and refused to sign her name to either plaintiff should refuse to make conveyances of said notes and deeds of trust. to her or lay other claim to the property, she could enforce her liens and accomplish the purpose of the agreement.

(232 S.W.)

In a prosecution for robbery at a waiters' club, evidence held sufficient to warrant jury in finding that defendant was man who held gun on injured persons while they were being

robbed.

3. Witnesses 255(9) Testimony before grand jury properly used to refresh memory of witness.

Court did not err in submitting to witness with the request that he examine the same testimony given by him before the grand jury, for the purpose of refreshing his memory; such testimony not being offered in evidence, and no part of it being stated to the jury.

4. Criminal law 11702 (1)-Submitting testimony given before grand jury held not reversible error.

pass upon their credibility. In addition to 2. Robbery 24 (3)-Evidence held sufficient that advantage, the trial court had the deto sustain conviction. fendant's testimony corroborated by some of the other undisputed facts in the case: (1) That all the devisees under the will accepted the bequests given to them by the will, and it seems strange that the plaintiff would accept a bequest under the will and thereafter attempt to contest its validity, which ordinarily would estop him, especially in the absence of fraud, ignorance of the facts, business inexperience, etc; (2) it is more strange that a grown man, in full possession of all his mental faculties, and who is presumed to know and understand what he is doing, would accept a warranty deed to a piece of real estate which he contends in right and equity belonged to him in fee simple free of incumbrances, should accept that deed If it was error to submit to a witness testiwith a provision therein stating that he ac-mony given by him before the grand jury for cepted the title subject to the two deeds of the purpose of refreshing his memory, no harm trust mentioned; and (3) that the evidence was done defendant, where the witness, after tended to show that the defendant assisted examining his testimony given before the grand in paying for the property which her mother jury, reiterated what he had previously said; willed to her, the property in dispute. The the testimony not being stated to the jury. evidence tended to show that she began work- 5. Criminal law 721 (1) -Failure of accused ing at 14 years of age, and that she paid $10 to testify cannot be referred to. a month toward the support of the family, and in addition thereto paid sums toward the purchase and maintenance of the home. If she did that up to the time of her mother's death, which would have been something like 17 years, those payments of $10 a month, alone, would have amounted to something like $2,000, which fact might have had great influence upon the mind of the mother in making the will as she did.

Failure of accused in criminal prosecution to testify cannot legally be referred to or criticized by the prosecuting attorney in the presence of the jury.

6. Criminal law 721 (6)-Remarks of prosecuting attorney held not comment on defendant's failure to testify.

In a prosecution for robbery, remark of prosecuting attorney, in connection with testimony of a policeman, "Now, he had all that Now, if B. did not do anything, and you must opportunity to see this man B. [defendant]. say that B. was there; that is the only testimony you have here; he must have been there; there hasn't been a witness here who says he was not there"-held not objectionable as a comment on defendant's failure to testify as a witness.

7. Criminal law 726-Remarks of state's attorney in answer to defendant's argument regarding reputation of defendant held not comments on defendant's failure to testify.

Statement of prosecuting attorney that defendant's attorney "says that this man comes here with the best of reputation. Did you hear anything, about reputation here? Did you hear any one say anything about his reputation? And if he had said something about his reputation, I would have had something to say about his reputation"-held not objectionable as a comment on defendant's failure to testify as a witness, where defendant's counsel did not deny having told the jury that defendant "comes here with the best of reputation," and trial court very properly refused to discharge the jury at defendant's request.

It is not the province of the Supreme Court, on appeal in a criminal prosecution, to pass on the weight of the testimony, and in considering question whether defendant's demurrer to 8. Robbery 24 (1)-Corpus delicti held sufthe evidence should have been sustained, it will only determine whether the record presents substantial evidence on which the verdict a can be sustained.

ficiently shown.

In a prosecution for robbery committed in waiters' club, held, that corpus delicti was sufficiently shown by the state.

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes