gether, and the manner in which the note was delivered by plaintiff to the defendant, found "that defendant fraudulently, by influence, and in violation of the fiduciary relation, and in betrayal of the trust and confidence reposed in him by plaintiff, obtained possession of said note, and fraudulently secured a pretended release on the margin of the record of said deed of trust," and that defendant was indebted to plaintiff in the sum of $1,565.40, and adjudged that plaintiff recover of the defendant that sum, that the judgment be a special lien upon said real estate, and that, if the sum realized from the sale of said real estate be insufficient to satisfy the indebtedness, execution should be levied upon other property of the defendant.

An appeal was lodged in this court, but the cause was transferred to the Supreme Court upon the theory that the case involved title to real estate. That court retransferred the case here, holding that the only issue involved is one whether the note was discharged through a valid gift, or was a surrender of it to defendant, and as a result the lien on the deed of trust was extinguished, and that title to real estate was not involved in the sense that the Supreme Court has jurisdiction.

personal and business. To further show the relationship, and the intention of the parties in this matter, it appears that a will was drawn after this alleged gift was made, in which the old lady bequeathed to the defendant and his wife this same $1,300. The defendant or his agent always had possession of plaintiff's papers, and among them was a note for $400 and this note for $1,300, with the deed of trust, which was all the property she possessed. Plaintiff never had same in her actual possession; she made her will under the supervision, or at least with the advice, of the defendant and his wife. One would be destroyed, and then another one written up; plaintiff always confiding closely in defendant and his wife, and relying upon their advice.

Plaintiff testified that she was fraudulently induced to sign her name on the back of the note; that she did not know the effect of so signing, and that she at no time intended to cancel the obligation of the debt, and was never told that she was signing away any right, nor that this was ever explained to her; that she knew the note was in the possession of the appellant, but that she was led to believe that no change in the possession thereof had been made. She said she did not understand English, and therefore did [1] The evidence adduced by plaintiff not understand what the cashier read to her closely follows and strongly tends to sup- as being on the note, if he read it at all to port the facts alleged in the petition. It is her. In fact, she says that the indorsement to the effect that plaintiff, an old lady, the of payment of the note was made at the mother of defendant's wife, living on the farm, and that she signed same because farm with them and working for her board, "John [defendant] said he wanted to borrow loaned $1.300 to defendant and his wife, and some more money," believing she was aiding took a note for same, secured by a deed of him to borrow more money. She testified trust on their farm. The note was subse- she was always led to believe that her monquently canceled and the deed of trust re-ey was safely invested in the farm, and that, leased, through a chain of circumstances, if the farm was sold, she would get her which will be further recited, that warrants the conclusion of the lower court that fraud was practiced upon plaintiff. It is admitted that no consideration passed for the note of $1,300, and for the release of the deed of trust; but it is contended that it was a gift to the defendant and his wife. There is evidence that the defendant, as late as 1919, represented to plaintiff and to others that the plaintiff still had her money secured by the farm. It is true, witness G. A. Wenon, cashier of the Bank of Kimmswick, testified that the plaintiff authorized him to release the deed of trust; that she made an indorsement to that effect; that this was in English.

Plaintiff could neither read nor write English, and could hardly read German. The transaction was not made by her, as it appears from this record, with competent, independent advice. The guiding hand throughout the whole transaction was always this defendant and his wife. The plaintiff lived with the defendant under circumstances showing that she entirely relied upon de

money; and it is in evidence that the defendant made the representations that plaintiff's money was so loaned to him as late as August, 1919. Plaintiff says positively that she loaned the money to defendant and his wife, and always believed she had a mortgage on the farm for it; that she did not give that sum to them, nor at any time understood that she released the security on same.

[2] Even if it should be held that the evidence does not show that the defendant was guilty of willful and intentional fraud, yet concealed material facts, by which undue advantage is taken by the alleged donee, if its effect is to perpetrate a fraud, will constitute fraud in law, and the contract will be set aside. See Derby v. Donahoe, 208 Mo. 684, 106 S. W. 632; Heimeyer v. Heimeyer, 259 Mo. 515, 168 S. W. 757.

[3, 4] Since the appellant claims that the note for $1,300 was a gift from the plaintiff to the appellant and his wife, the burden is upon the defendant to establish by clear and convincing testimony that plaintiff delivered

(273 S.W.)

was present a clear intention of the donor, ment was recorded until the actual discovery to forever part with the property. Martin of the fraud, and in none of those cases was there a release of the instrument after it had been recorded. It is true, where an instrument is recorded, the parties have notice of that fact, and are charged with knowledge of the contents of the recorded instrument at the time same is recorded; but we are not inclined to the view that under all circumstances the parties are charged with the knowledge of changes made thereafter fraudulently. In the case of Thompson v. Lyons, 281 Mo. 430, at page 447, 220 S. W. 942, 946, it is said, quoting from Hutto v. Knowlton, 82 Kan. 445, loc. cit. 448; 108 P. 825, 826:

"But the rule is no broader than its basis, and if for any reason no obligation exists to consult the record, or if the interested person be circumvented from taking advantage of his opportunity, the rule does not obtain. There is no obligation resting upon a landlord to watch the records for tax deeds fraudulently taken out by his tenant [citing cases]. Where fiduciary relations exist requiring the disclosure of the true state of facts, there is no reason to anticipate unfaithfulness and the obligation to search the records is relaxed."

v. First National Bank, 206 Mo. App. 629, 227 S. W. 656; Hunter v. Wabash R. Co., 149 Mo. App. 243, 130 S. W. 103. The evidence does not satisfy this rule. A close, confidential, fiduciary relation is shown between the defendant and his wife, who was then living, and this respondent. A presumption arises that the alleged gift is void, and thus the burden of proof rests with the defendant to establish the fairness and validity of the transaction, and that such transaction was free from undue influence and fraud. Caspari v. Church, 12 Mo. App. 293; Id., 82 Mo. 649; Leslie v. Carter, 240 Mo. 552, 144 S. W. 797; Kincer v. Kincer, 246 Mo. 419, 151 S. W. 424; Heimeyer v. Heimeyer, 259 Mo. 515, 168 S. W. 757. However, the evidence is sufficient to establish that the cancellation of the note and the release of the deed of trust were procured by the wilful act of the defendant; therefore fraud need not be proved by direct testimony. It may be shown by a state of facts from which fraud may be naturally and reasonably inferred. Kennish v. Safford, 193 Mo. App. 362, 184 S. W. 923; Derby v. Donahoe, 208 Mo. 684, 106 S. W. 632; Heimeyer v. Heimeyer, 259 Mo. 515, 168 S. W. 757. [5] We have read the evidence of defend- "If there was nothing in the transaction at ant, to the effect that this was a gift and that the time, or nothing occurring later, to cause the plaintiff ordered the release of the deed is not guilty of negligence in failing to ferret a reasonably prudent man to suspect fraud, he of trust, and the evidence is so close as to it out." cause us to pause. However, weighing the plaintiff's evidence, with all the circumstances attending, we think the chancellor properly determined the weight of the evidence. We must, in this character of a case, give great deference to the finding of the chancellor on the facts, as obtained at the trial from oral testimony, though such finding must accord with our own view of the record. We sustain the court in this regard, and rule against the first assignment of error, that the judgment is against the weight of the evidence.

cit. 552, 145 S. W. 785, 793, it is said:
In College v. Dockery, 241 Mo. 522, loc.

And further quoting from Vigus v. O'Bannon, 118 Ill. 334, 8 N. E. 778, the court said:

"The failure to use ordinary diligence to discover the fraud may be excused where there exists some relation of trust and confidence, as principal and agent, client and attorney, cestui que trust and trustee, between the paris affected by it, rendering it the duty of the ty committing the fraud and the party who former to disclose to the latter the true state of the transaction, and when it appears that it was through confidence in the party who committed the fraud that the other was prevented from discovering it."

The court adding:

"That is the law of righteousness and justice;

[6, 7] The next point made is that the five-year statute of limitation bars the action. The note fell due August 26, 1915, and as a suit purely on a note the statute would not begin to run until maturity of same. But it is the law in Missouri, as well as in Illinois." appellant says that the respondent's action is barred because it was brought more than five years after the release of the deed of trust, under section 1317, Rev. St. Mo. 1919. Under this statute 10 years are allowed for the discovery of fraud. As to this, appellant's counsel says that the release of the deed of trust on September 23, 1913, was a constructive notice of the fraud which set the statute into operation, and cites many cases to support that proposition. However, those authorities teach no doctrine to bar the present action, in our judgment. In the cases relied upon there was no change made upon the record from the time the instru

In the instant case we are inclined to the view that it is sound doctrine to rule that the plaintiff could not have been expected to watch the records for any possible fraudulent alteration, since she had no reason to anticipate a breach on the part of the defendant of the relationship that existed between them. From all the facts and circumstances in evidence, plaintiff was in effect prevented from making an examination of the records. So we conclude that the suit was timely brought.

[8] A further contention is made challenging the sufficiency of the petition. No demurrer having been filed challenging same, we

think the petition is good after judgment. [sion of St. Louis circuit court to another, is It should be said again that this is such a binding on parties, regardless of rules of St. case in equity where, necessarily, we must Louis circuit court as to transfer and assigndefer largely to the trial court's better op- ment of cases instituted in pursuance of Rev. portunity to judge the weight of the evi- St. 1919, §§ 2619 and 2620. dence. We have in mind what Judge Lamm said in Bank v. Hutton, 224 Mo. 42, loc. cit. 71, 123 S. W. 47, 57:

(273 S.W.)

utes Missouri 1919. Our alternative writ | complete remedy for the transfer of said having issued, respondent duly made return, cause to division No. 14 by filing an affiwhich is in the nature of a demurrer and mo- | davit for change of venue. tion to quash the alternative writ. The question thus presented is whether the section of the statute, supra, applies as between the said two divisions of said circuit court. The facts, as conceded, show that respondent is a circuit judge, presiding over division No. 2 of the circuit court of St. Louis; that there was and is pending in said division of said court a cause in which the relator is a defendant, and in which the Supreme Lodge of the World, Loyal Order of Moose, a corporation, and St. Louis Lodge No. 1661, Loyal Order of Moose, a corporation, are plaintiffs. Said cause is numbered 85566-B, and a certified copy of the pleadings in said cause is lodged here. The suit is for injunction, and the amount involved is within our jurisdiction.

On March 12, 1925, in the February term, 1925, of said court, the plaintiffs and defendants in said cause duly filed the following stipulation (we omit the caption):

"It is hereby stipulated and agreed, by and between plaintiffs and defendants, that the above-entitled cause be transferred by consent to division No. 14 of the circuit court, City of St. Louis, Mo."

In respondent's brief, however, no reference is made to such rule, and the rules of said circuit court, brought here by the relator, contain no provision requiring consent of the judge before whom the cause is to be transferred, and it seems no such rule exists. In respondent's brief the issue is limited to the sole position that section 1356, supra, providing for removal by consent, does not apply as between the several divisions of the circuit court of the city of St. Louis, for the reason that the rules of the St. Louis circuit court make no provision for transfer or assignment of cases except upon changes of venue or the sustaining of a motion for a new trial, and that for that reason respondent is without power to transfer this cause to division No. 14 on the stipulation.

Section 2619, Revised Statutes Missouri 1919, is as follows.

"And in addition to the ordinary power of making rules conferred by the general law, the court may make all rules which its peculiar organization may, in its judgment, require, different from the ordinary course of practice, and necessary to facilitate the trans

action of business therein. But all rules for the government of the court at special term shall be the same before each of the judges at such term."

Section 2620 authorizes the court in general term to classify and assign the business thereof among the several judges as may be provided by its rules and orders. It is ar

sion" from the rules of said court for a transfer such as the relator seeks. It is insisted that section 2619 must be held to be in derogation to the provisions of section 1356, in so far as that section applies to the St. Louis circuit court, because of the peculiar organization of that court.

Same is duly signed by counsel, who were then and are still attorneys of record for all the parties to the suit. On the same day, counsel for defendants called respondent's attention, to the stipulation, and asked the court to make the order transferring the cause to division No. 14. This the respond-gued that there is "an intentional omisent refused to do. Counsel for plaintiffs likewise presented said stipulation to the respondent for action, and again respondent declined to transfer the cause under the stipulation. The petition for the alternative writ alleges the importance of the litigation, and sets forth facts to show the inadequacy of a remedy by appeal, and contains other pertinent averments for relief by mandamus. In the return, respondent takes the position that section 1356, supra, has no application to transfer from one division to another division of the circuit court of the city of St. Louis, but that same applies to courts of different counties only. The return further alleges that said court has provided by its rules and practice that a cause may be transferred by consent to any other division of said court having the same character or class of litigation upon the application of both parties to the court, "providing that the judge before whom said cause is so transferred shall consent thereto," and that the consent of the judge presiding in said division No. 14 was required to be obtained under such rule, and that such consent had not been obtained by either party in this cause. It is further stated that the relator has a

[2] Regardless of whether a rule of said circuit court has or has not been adopted for the transfer of cases by consent, we must keep in mind the principle that the court can prescribe only such rules of practice to regulate its proceedings as are in harmony with the law, and, when there is a statute with which a rule of the court conflicts, the rule must fail. State ex rel. Brockman Mfg. Co. v. Miller (Mo. Sup.) 241 S. W. 920.

[3] Section 1356 of the statute is as follows:

"If at any time after the commencement of a suit the parties shall agree in writing, duly filed, upon any other county or court of competent jurisdiction, to which they desire the same to be removed, it shall, by order of the court, be removed accordingly to such county or court of competent jurisdiction; and the same proceedings shall be had in all respects for the removal of such cause as are provided by law in changes of venue in civil cases."

The intent of the lawmaker, obviously was, concerned. In the Goddard Case the court to provide a method by which a change of venue could be obtained by consent, avoiding the necessity of resorting to a challenge of the court by affidavit on statutory grounds, when both parties agree to a removal. Section 1371 of the Statutes is as follows: