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gether, and the manner in which the note, personal and business. To further show the was delivered by plaintiff to the defendant, relationship, and the intention of the parties found "that defendant fraudulently, by in- in this matter, it appears that a will was fluence, and in violation of the fiduciary re- drawn after this alleged gift was made, in lation, and in betrayal of the trust and which the old lady bequeathed to the defendconfidence reposed in him by plaintiff, ob- ant and his wife this same $1,300. The detained possession of said note, and fraudu- fendant or his agent always had possession lently secured a pretended release on the of plaintiff's papers, and among them was a margin of the record of said deed of trust," note for $400 and this note for $1,300, with and that defendant was indebted to plain the deed of trust, which was all the property tiff in the sum of $1,565.40, and adjudged she possessed. Plaintiff never had same in that plaintiff recover of the defendant that her actual possession; she made her will unsum, that the judgment be a special lien der the supervision, or at least with the adupon said real estate, and that, if the sum vice, of the defendant and his wife. One realized from the sale of said real estate be would be destroyed, and then another one ilsufficient to satisfy the indebtedness, exe- written up; plaintiff always confiding closecution should be levied upon other property ly in defendant and his wife, and relying upof the defendant.

on their advice. An appeal was lodged in this court, but Plaintiff testified that she was fraudulentthe cause was transferred to the Supreme Is induced to sign her name on the back of Court upon the theory that the case involv- the note; that she did not know the effect of er! title to real estate. That court retrans- so signing, and that she at no time intended ferred the case here, holding that the only tu cancel the obligation of the debt, and was issue involved is one whether the note was never told that she was signing away any discharged through a valid gift, or was a right, nor that this was ever explained to surrender of it to defendant, and as a result ber; that she knew the note was in the posthe lien on the deed of trust was extinguish- session of the appellant, but that she was led ed, and that title to real estate was not in- to believe that no change in the possession volved in the sense that the Supreme Court thereof had been made. She said she did has jurisdiction.

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 sa me 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 money; and it is in evidence that the dethe conclusion of the lower court that fraud rendant made the representations that plainwas practiced upon plaintiff. It is admitted tiff's money was so loaned to him as late as that no consideration passed for the note Angust, 1919. Plaintiff says positively that of $1,300, and for the release of the deed of she loaned the money to defendant and his trust; but it is contended that it was a gift wife, and always believed she had a mortto the defendant and his wife. There is gage on the farm for it; that she did not evidence that the defendant, as late as 1919, give that sum to them, nor at any time unrepresented to plaintiff and to others that derstood that she released the security on the plaintiff still had her money secured by same. the farm. It is true, witness G. A. Wenon, [2] Even if it should be held that the evi. cashier of the Bank of Kimmswick, testi-dence does not show that the defendant was fied that the plaintiff authorized him to re- guilty of willful and intentional fraud, yet lease the deed of trust; that she made an concealed material facts, by which undue indorsement to that effect; that this was in advantage is taken by the alleged donee, if English.

its effect is to perpetrate a fraud, will conPlaintiff could neither read nor write Eng-stitute fraud in law, and the contract will lish, and could hardly read German. The be set aside. See Derby V. Donahoe, 208 transaction was not made by her, as it ap- Mo. 684, 106 S. W. 632; Heimeyer v. Heipears from this record, with competent, in- meyer, 259 Mo. 515, 168 S. W. 757. dependent advice. The guiding hand through [3, 4] Since the appellant claims that the out the whole transaction was always this note for $1,300 was a gift from the plaintiff to defendant and his wife. The plaintiff lived the appellant and his wife, the burden is upwith the defendant under circumstances on the defendant to establish by clear and showing that she entirely relied upon de- convincing testimony that plaintiff delivered fendant for direction for her affairs, both possession of the alleged gift, and that there

(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 v. First National Bank, 206 Mo. App. 629, there a release of the instrument after it 227 S. W. 656; Hunter V. Wabash R. Co., had been recorded. It is true, where an in149 Mo. App. 243, 130 S. W. 103. The evi- strument is recorded, the parties have notice dence does not satisfy this rule. A close, of that fact, and are charged with knowlconfidential, fiduciary relation is shown be- edge of the contents of the recorded instrutween the defendant and his wife, who was ment at the time same is recorded ; but we then living, and this respondent. A pre- are not inclined to the view that under all sumption arises that the alleged gift is void, circumstances the parties are charged with and thus the burden of proof rests with the the knowledge of changes made thereafter ! defendant to establish the fairness and val- fraudulently. In the case of Thompson v. idity of the transaction, and that such trans- Lyons, 281 Mo. 430, at page 447, 220 S. W. action was free from undue influence and 942, 946, it is said, quoting from Hutto v. fraud. Caspari v. Church, 12 Mo. App. 293; | Knowlton, 82 Kan. 445, loc. cit. 448; 108' P. Id., 82 Mo. 649; Leslie v. Carter, 240 Mo. 825, 826: 552, 144 S. W. 797; Kincer v. Kincer, 246

“But the rule is no broader than its basis, Mo. 419, 151 S. W. 424; Heimeyer v. Heimey- and if for any reason no obligation exists to er, 259 Mo. 515, 168 S. W. 757. However, consult the record, or if the interested person the evidence is sufficient to establish that the be circumvented from taking advantage of his cancellation of the note and the release of opportunity, the rule does not obtain. There the deed of trust were procured by the wil- is no obligation resting upon a landlord to ful act of the defendant; therefore fraud watch the records for tax deeds fraudulently

taken out by his tenant [citing cases). Where need not be proved by direct testimony. It fiduciary relations exist requiring the disclosure may be shown by a state of facts from which of the true state of facts, there is no reason fraud may be naturally and reasonably in- to anticipate unfaithfulness and the obligation forred. Kennish v. Safford, 193 Mo. App.) to search the records is relaxed.” 362, 184 S. W. 923; Derby v. Donahoe, 208 Mo. 684, 106 S. W. 632; Heimeyer v. Hei- cit. 552, 145 S. W. 785, 793, it is said:

In College v. Dockery, 241 Mo. 522, loc. meyer, 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 circum

And further quoting from Vigus v. O'Banstances attending, we think the chancellor non, 118 Ill. 334, 8 N. E. 778, the court said: properly determined the weight of the evi “The failure to use ordinary diligence to dence. We must, in this character of a case, discover the fraud may be excused where there give great deference to the finding of the exists some relation of trust and confidence, chancellor on the facts, as obtained at the as principal and agent, client and attorney, trial from oral testimony, though such find- cestui que trust and trustee, between the paring must accord with our own view of the is affected by it, rendering it the duty of the

ty committing the fraud and the party who record. We sustain the court in this regard, former to disclose to the latter the true state and rule against the first assignment of er- of the transaction, and when it appears that ror, that the judgment is against the weight it was through confidence in the party who comof the evidence.

mitted the fraud that the other was prevented [6, 7] The next point made is that the from discovering it.” fire-year statute of limitation bars the ac

The court adding: tion. The note fell due August 26, 1915, and as a suit purely on a note the statute would it is the law in Missouri, as well as in Illinois.”

"That is the law of righteousness and justice; not begin to run until maturity of same. But appellant says that the respondent's action In the instant case we are inclined to the is barred because it was brought more than view that it is sound doctrine to rule that five years after the release of the deed of the plaintiff could not have been expected trust, under section 1317, Rev. St. Mo. 1919. to watch the records for any possible fraud. Under this statute 10 years are allowed for ulent alteration, since she had no reason to the discovery of fraud. As to this, appel. anticipate a breach on the part of the delant's counsel says that the release of the fendant of the relationship that existed bedeed of trust on September 23, 1913, was a tween them. From all the facts and circumconstructive notice of the fraud which set stances in evidence, plaintiff was in effect the statute into operation, and cites many prevented from making an examination of cases to support that proposition. However, the records. So we conclude that the suit those authorities teach no doctrine to bar/ was timely brought. the present action, in our judgment. In the [8] A further contention is made challengcases relied upon there was no change made ing the sufficiency of the petition. No demurupon the record from the time the instru- rer 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 2020. dence. We have in mind what Judge Lamm 4. Courts ww50—As to change of venue, each said in Bank v. Hutton, 224 Mo. 42, loc. cit. division of circuit court of St. Louis is to be 71, 123 S. W. 47, 57:

treated as if each division were separate and

complete court. "Now, fraud is commonly deeply hid away. Often it can only be got at by inference. change of venue in St. Louis circuit courts, each

Under Rev. St. 1919, § 1371, relating to * Therefore they permit a 'minute search division of circuit court of such city is to be and a wide one in pursuit of fraud; for it may treated as if it were separate and complete now and then be seen through a small crevice,

court. and seemingly indifferent things, without sinister significance when taken separately, may, 5. Courts C50-Fact that rules of St. Louis when properly dovetailed together, establish circuit court make no provision for transfer fraud.”

of cases, allowed by statute, held not to affect

rights conferred by statute. Our own conclusion, after reading the record, is that the judgment is for the right relating to transfer and assignment of cases,

Fact that rules of St. Louis circuit court, party.

passed in pursuance of Rev. St. 1919, 88 2619, Judgment affirmed.

2620, make no provision for transfer of case

from one equity division of such court to anBECKER and NIPPER, JJ., concur. other on stipulation of parties, as allowed by

section 1356, does not affect rights conferred by latter statute.

6. Courts Cu85(1)-Court cannot make and STATE ex rel. PARAMOUNT PROGRES enforce rule depriving parties of right given SIVE ORDER OF MOOSE v. MILLER, by law, or granting that right on terms more Judge of St. Louis Circuit Court.

onerous than those fixed by law. (No. 19244.)

Court cannot make and enforce rule depriv

ing parties of right given by law, or granting (St. Louis Court of Appeals. Missouri.

such right upon terms more operous than those May 5, 1925.)

fixed by law. 1. Mandamus en 164(4)–On alternative writi 7. Courts 85(3) St. Louis circuit court to remove cause from one division of circuit

may not make or enforce rules narrowing or court to another, return in nature of demur.

abridging right given to litigants by statute. rer, and motion to quash, question held to be

Circuit court of St. Louis has power to whether statute relied on applies as between make rules regulating assignments and transdivisions of court.

fers of cases, which are merely to facilitate In proceeding for mandamus to remove work of court and to properly apportion cases cause from one division to another of St. Louis between judges, but such court may not make circuit court, under Rev. St. 1919, § 1356, where or enforce rule narrowing or abridging any return to alternative writ was in nature of de- rights given litigants by statute law, in view of murrer and motion to quash, question presented Rev. St. 1919, $ 1336, permitting transfer of is whether such statute applies as between two cases by stipulation of parties. divisions of St. Louis circuit court. 2. Courts Om78-Circuit court can prescribe

Original proceeding by the State of Misonly such rules of practice as are in harmony souri, on the relation of the Paramount Prowith law.

gressive Order of Moose, for mandamus to be Circuit court can prescribe only such rules directed to Hon. Franklin Miller, Judge of of practice, in pursuance of Rev. St. 1919, 8 the Circuit Court of the City of St. Louis, 2619, as are in harmony with law, and, when presiding in Division No. 2 of such Circuit rule conflicts with statute, rule must fail.

Court. On return to alternative writ of man3. Courts mw 85(3)—Stipulation for transfer damus, in nature of demurrer and motion to

of case from one equity division court to an- quash alternative writ. Alternative writ other held binding on parties, regardless of made permanent. rule of court. Rev. St. 1919, 8 1356, providing for re

Earl M. Pirkey, of St. Louis, for relator. moval of suit by agreement of parties, in view

Harry E. Sprague, of St. Louis, for reof section 1371, providing that changes of venue

spondent. shall be awarded to and from St. Louis circuit court as if it were a county, and that, if change DAUES, P. J. [1] This is an original probe asked and granted from any court in such ceeding in mandamus to compel the respondcity, it should be sent to some other court of record in city, with certain exceptions, applies ent, judge of division No. 2 of the circuit between two equity divisions of circuit court of court of the city of St. Louis, to remove a city of St. Louis, and stipulation between par cause to division No. 14 of said court, under ties for transfer of cause from one equity divi- I the provisions of section 1356, Revised Stat

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

(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 affwhich is in the nature of a demurrer and mo- davit for change of venue. tion to quash the alternative writ. The In respondent's brief, however, no referquestion thus presented is whether the sec ence is made to such rule, and the rules of tion of the statute, supra, applies as between said circuit court, brought here by the relatthe said two divisions of said circuit court. or, contain no provision requiring consent of

The facts, as conceded, show that respond- the judge before whom the cause is to be ent is a circuit judge, presiding over divi- | transferred, and it seems no such rule exsion No. 2 of the circuit court of St. Louis; | ists. In respondent's brief the issue is limitthat there was and is pending in said divi-ed to the sole position that section 1356, susion of said court a cause in which the re- pra, providing for removal by consent, does lator is a defendant, and in which the Su- not apply as between the several divisions of preme Lodge of the World, Loyal Order of the circuit court of the city of St. Louis, for Moose, a corporation, and St. Louis Lodge the reason that the rules of the St. Louis No. 1661, Loyal Order of Moose, a corpora- circuit court make no provision for transfer tion, are plaintiffs. Said cause is numbered or assignment of cases except upon changes 85566-B, and a certified copy of the pleadings of venue or the sustaining of a motion for a in said cause is lodged here. The suit is for new trial, and that for that reason respondinjunction, and the amount involved is within ent is without power to transfer this cause our jurisdiction.

to division No. 14 on the stipulation. On March 12, 1925, in the February term, Section 2619, Revised Statutes Missouri 1925, of said court, the plaintiffs and defend. | 1919, is as follows. ants in said cause duly filed the following

"And in addition to the ordinary power of stipulation (we omit the caption):

making rules conferred by the general law, "It is hereby stipulated and agreed, by and the court may make all rules which its pebetween plaintiffs and defendants, that the culiar organization may, in its judgment, reabove-entitled cause be transferred by con- quire, different from the ordinary course of sent to division No. 14 of the circuit court, City practice, and necessary to facilitate the trans

action of business therein. But all rules for the of St. Louis, Mo."

government of the court at special term shall

be the same before each of the judges at such Same is duly signed by counsel, who were term." then and are still attorneys of record for all the parties to the suit. On the same day,

Section 2620 authorizes the court in genercounsel for defendants called respondent's al term to classify and assign - the business attention, to the stipulation, and asked the thereof among the several judges as may be court to make the order transferring the provided by its rules and orders. It is arcause to division No. 14. This the respond-gued that there is "an intentional omisent refused to do. Counsel for plaintiffs sion” from the rules of said court for a translikewise presented said stipulation to the re- fer such as the relator seeks. It is insisted spondent for action, and again respondent that section 2619 must be held to be in derodeclined to transfer the cause under the stip- gation to the provisions of section 1356, in ulation. The petition for the alternative so far as that section applies to the St. Louis writ alleges the importance of the litigation, circuit court, because of the peculiar organiand sets forth facts to show the inadequacy zation of that court. of a remedy by appeal, and contains other [2] Regardless of whether a rule of said pertinent averments for relief by mandamus. circuit court has or has not been adopted for

In the return, respondent takes the posi- the transfer of cases by consent, we must tion that section 1356, supra, has no appli- keep in mind the principle that the court can cation to transfer from one division to an- prescribe only such rules of practice to reguother division of the circuit court of the city late its proceedings as are in harmony with of St. Louis, but that same applies to courts the law, and, when there is a statute with of different counties only. The return fur- which a rule of the court conflicts, the rule ther alleges that said court has provided by must fail. State ex rel. Brockman Mfg. Co. its rules and practice that a cause may be v. Miller (Mo. Sup.) 241 S. W. 920. transferred by consent to any other division

[3] Section 1356 of the statute is as folof said court having the same character or

lows: class of litigation upon the application of "If at any time after the commencement of a both parties to the court, “providing that the suit the parties shall agree in writing, duly judge before whom said cause is so trans- filed, upon any other county or court of comferred shall consent thereto,” and that the petent jurisdiction, to which they desire the consent of the judge presiding in said divi- same to be removed, it shall, by order of the sion No. 14 was required to be obtained un

court, be removed accordingly to such county der such rule, and that such consent had not

or court of competent jurisdiction; and the

same proceedings shall be had in all respects been obtained by either party in this cause. for the removal of such cause as are provided It is further stated that the relator has a 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 said: venue could be obtained by consent, avoiding

"When a cause is assigned to a division, that the necessity of resorting to a challenge of division becomes as to that cause

a whole the court by affidavit on statutory grounds, court, and has as exclusive jurisdiction of it as when both parties agree to a removal.

a circuit court of an adjoining county has of a Section 1371 of the Statutes is as follows: cause pending in it.”

Likewise is the law written in Fenn v. Re“The word 'county,' as used in this article, shall be construed to embrace the city of St. ber, 153 Mo. App. 219, loc. cit. 229, 132 S. W. Louis; and changes of venue shall be awarded 627, citing State ex rel. v. Eggers, 152 Mo. to and from the courts of said city as if it were 195, 54 S. W. 498, wherein it is held that, a county.' But if such change be asked and when a case is assigned to a division, such granted from any court in said city, the cause division is to be treated as to that case as shall be sent for further proceedings to some though the division were a whole court, a other court of record in said city, unless the unit. See, also, Haehl v. Railroad, 119 Mo. application is based upon grounds applicable to all the judges of said courts therein, or to 325, 24 S. W. 737. all the inhabitants of said city; and the several

The case of Meierhoffer v. Hansel, 294 Mo. divisions of the circuit court in said city shall 195, 243 S. W. 131, is cited by respondent. be regarded as separate courts within the That case, however, is of no influence here, meaning of this section."

as the law as there declared is simply that

rules of the Kansas City circuit court may, [4] Observably, when dealing with the under the statutes applicable to such court, question of the usual change of venue, each make effective rules for assignment of casdivision of the circuit court of said city is es, etc., but there was no question of conflict to be treated as if each such division were a

of the rules with a general statute involved

in that case. separate and complete court. If, for the pur

[5-7] We do not believe that the fact that poses of a change of venue, each division is the rules of the circuit court make no proa separate court, it follows in reason that vision for a transfer such as is allowed by section 1356, which allows such removal on the statute has any effect whatsoever upon the consent of parties, proceeds upon the the rights conferred by such statute. A rule same hypothesis.

which would go beyond the statute, and narThe sixteen divisions of the circuit court row the rights of litigants as therein providof the Eighth judicial circuit (the city of ed, would, we think, be invalid. A court canSt. Louis) are apportioned as between crim- not make and enforce a rule that would deinal cases, nonjury civil cases, called equity prive a party of the right given him by law, division, and jury law division, called law or granting that right upon terms more onerdivision, and cases of domestic relations. ous than those fixed by law. State ex rel. v. Divisions No. 2 and 14 are both equity divi- Gideon, 119 Mo. 94, 24 S. W. 748, 41 Am. St. sions, and the stipulation for transfer of the Rep. 634; State ex rel. v. Withrow, 135 Mo. instant case is from one to another of the 376, 36 S. W. 896, 1038. We understand secequity divisions, and we are not required to tion 1356, supra, to mean that the circuit go further than to determine whether the court in the city of St. Louis is given the stipulation has any effect as between such power to make rules regulating assignments divisions.

and transfers, but such rules are merely to In Goddard v. Delaney, 181 Mo. 564, 80 S. facilitate the work of the court, to properly W. 886, it is held that, after a case is as- apportion the cases between the judges. But signed to one division of the St. Louis cir- we do not understand that such statute is incuit court, such division becomes a wholly tended to allow such court to make or enforce separate and independent court. It is true a rule which will narrow or abridge any right that the separableness of the court is there given litigants by the statute law. discussed in the light of a somewhat different

Accordingly, we are constrained to hold question. However, the reasoning, we think, that section 1356 is applicable as between the is the same, for, if it be the law as there ex- two divisions of the circuit court here inpressed, that when a case is assigned to a volved. It follows, therefore, that our alterdivision of that court, that court becomes an native writ should be made permanent. It independent court for the purpose of that is so ordered. case, then it seems that each division is a separate court in so far as section 1356 is BECKER and NIPPER, JJ., concur.

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