failure of consideration for the paper which was the foundation of the action. Trust Co. v. Brady, 165 Mo. 197, 65 S. W. 303. At the same time, we hold that several items of evidence which the court admitted conflicted with the principle of law declared in the first paragraph of this opinion. We cannot know what weight or influence the court gave to the incompetent facts which were so gleaned from defendant as a witness at the last trial. It is now a settled doctrine of our procedure that, where error appears, it is presumed to be prejudicial, unless the appellate court can clearly see that it was harmless. State v. Taylor, 118 Mo. 153, 24 S. W. 449. The learned trial judge sat as a jury in this case. As he permitted the incompetent facts aforesaid to be given in evidence, it is fair to assume that he gave weight to those facts in forming his judgment. Where an appellate court has lawful authority to pass upon the facts on appeal, it may discard incompetent evidence, and pronounce its conclusion upon the legal testimony remaining, as is often done in equity cases. Padley v. Neill, 134 Mo. 375, 35 S. W. 997; Supreme Lodge v. Schworm (St. L.) 80 Mo. App. 64. But this is an action at law. We cannot be sure that the incompetent testimony was disregarded by the court. If any inference on that point may be drawn, we should infer that it was considered along with the other testimony. The recital of value received, as the consideration of a note such as that in suit, may be disputed, under the Missouri law quoted, by proof otherwise competent. But evidence of an agreement by which a note is not to be paid according to its tenor and terms is incompetent to support a plea of want of consideration. There is no plea or contention by defendant of any fraud as a defense. So the items of defendant's own testimony as to agreements contradicting the note and its promise to pay were clearly inadmissible. If there is a consideration for the note, then such an agreement would be wholly nugatory. If, on the other hand, the note was without consideration, or the consideration failed, the agreement that the note should not be payable would add nothing to the inference of the law from that fact.

3. The plaintiffs made out a prima facie case by the production of the note, which, under our state law, as well as by the law merchant, imports a consideration until the contrary is shown. Rev. St. 1899, § 894. The burden of proof was upon defendant to establish by a preponderance of the evidence the want of consideration he alleged. The trial court found in his favor on that issue, but did so after admitting into the scales of justice the items of testimony which we find were not entitled to a place there. What weight was given to those incompetent items of proof, we may not know. We cannot justly pronounce their admission harmless. Bank v. Froman, 129

Mo. 427, 31 S. W. 769; Shoe Co. v. Hicks (St. L.) 70 Mo. App. 309.

The judgment is reversed, and the cause remanded for a new trial.

BLAND, P. J., and GOODE, J., concur.

Opinion on Motion to Modify Judgment. (Dec. 16, 1902.)

PER CURIAM. It is competent, as between the payee and maker of a negotiable promissory note, to prove by oral testimony want or failure of consideration. Section 645, Rev. St. 1899; Cheatham v. Hill, 29 Mo. 311; Harwood v. Brown (K. C.) 23 Mo. App. 69; Trust Co. v. Brady, 165 Mo., loc. cit. 208, 65 S. W. 303. And for the purpose of showing want or failure of consideration, it is competent to prove the contract out of which the note grew. Trust Co. v. Brady, supra; Leighton v. Bowen, 75 Me. 504; Iron Co. v. Willing, 180 Pa. 165, 36 Atl. 737; Gale v. Harp, 64 Ark. 462, 43 S. W. 144; Juilliard v. Chaffee, 92 N. Y. 529; Bank v. Wood, 142 Mass. 563, 8 N. E. 753; Trustees v. Hoffman, 95 Mo. App. 488, 69 S. W. 474.

The answer of defendant is as follows:

"(1) Now comes the defendant, and, for his answer to plaintiffs' petition, admits that he executed the note sued on.

"(2) Defendant, further answering, says that said note was given without any consideration whatever, and is now in the hands of the original payees, who are the plaintiffs, and that there is nothing due them on said note.

“(3) Defendant, further answering, states to the court that plaintiffs conveyed to him a certain tract of land for him (the defendant) to sell for plaintiffs, and the amount for which plaintiffs had taken said land on a loan debt was $400, and that this defendant executed the note sued on for said sum of $400, and gave a deed of trust on said land; that neither the deed to defendant nor the note to plaintiffs were to be binding on the parties unless this defendant succeeded in selling said land, which he failed to do; that, when said note became due, defendant tendered plaintiffs a deed to said land, without any cost, which they refused to accept, but incurred an expense of $50 in such foreclosure, and charged the same to defendant, which is unjust, and was wholly unnecessary: that plaintiffs have recovered said land, and lost nothing by this defendant, and he owes them nothing.

"(4) Defendant denies every act and every allegation in said petition not herein specifically admitted, and, having fully answered. asks to be discharged, with costs."

Had defendant stopped with the second paragraph of his answer, we think he might have shown the contract out of which the note grew, if the contract proved or tended to prove want of consideration for the note.

The third paragraph is a statement in detail of the facts of the transaction, and alleges "that neither the deed to defendant nor the note to plaintiffs were to be binding on the parties unless this defendant succeeded in selling said land, which he failed to do." In other words, it is alleged that the note was to be paid only on the happening of a contingency. It is well-settled law in this state that oral evidence is not admissible for the purpose of proving that a negotiable promissory note, absolute on its face, was to be paid on the happening of any contingency. Jones v. Jeffries, 17 Mo. 577; Foote v. Newell, 29 Mo. 400; Massmann v. Holscher, 49 Mo. 87; Conrad v. Howard, 89 Mo. 217, 1 S. W. 212; Henshaw v. Dutton, 59 Mo. 139; Id., 67 Mo. 666; Jones v. Shaw, 67 Mo. 667; Hurt v. Ford, 142 Mo. 283, 44 S. W. 228, 41 L. R. A. 823; Insurance Co. v. Buchalter (K. C.) 83 Mo. App. 504; Bank v. Fesler (K. C.) 89 Mo. App. 217. By the third paragraph of his answer the defendant has so qualified his defense, "that the note was given without any consideration," as to show affirmatively that what he means by "want of consideration" is that the note was not to be paid unless he succeeded in selling the land,—that is, the note was to be paid only on the happening of a contingency,-and that the contingency upon which the note was to become payable has not happened. The third paragraph of the answer negatives the plea of want of consideration for the note, and discloses that the defense relied upon by defendant was that the note was to be paid only on the happening of a contingency, to wit, that defendant could succeed in selling the land. We think the answer fails to state any legal defense to the note. The defendant may be able to so frame his answer as to state a valid defense.

The motion to modify the opinion heretofore filed is overruled, and the judgment is reversed, and cause remanded, with leave to defendant to amend his answer, if so advised.

GOODE, J., concurs in the reversal of the judgment, but not in the ruling that the defendant may amend his answer and then prove orally that he was merely a trustee of the land, and that the note was not to be paid until he sold it. The other judges concur in full.

3. Where no question of a defect of parties is raised in the circuit court, the question cannot be raised on appeal.

4. The trial court is presumed to have correctly acted, until the contrary appears. Error must be affirmatively shown. (Syllabus by the Judge.)

Appeal from St. Louis circuit court; Warwick Hough, Judge.

Action by Catharine Tapana against Julia Shaffray. Judgment for defendant, and plaintiff appeals. Reversed.

C. F. Schneider, for appellant. A. P. Hebard, for respondent.

BARCLAY, J. In this cause, plaintiff has appealed from a judgment in favor of defendant, following an order sustaining a demurrer to her third amended petition. In order that the plaintiff's case may fully appear, we set forth the petition (omitting caption and signature) at large: "Plaintiff, for her third amended petition in above-entitled cause,leave to file same having been first had and obtained,-states that plaintiff is a sister and heir at law of one Ann McKenna, deceased, hereinafter mentioned; that she is single and unmarried, and the widow of one

Tap

ana, deceased. Plaintiff further states that said Ann McKenna departed this life, intestate, on or about the 1st of July, 1893, leaving as her sole heirs at law her brother and sisters, viz., Patrick Shaffray, the husband of defendant, Julia Shaffray, Edward Shaffray, Mary Lee, and plaintiff herein, Catharine Tapana. Plaintiff further states that the said Ann McKenna at the time of her decease was the owner and possessed of property of the value of four thousand dollars ($4,000); that plaintiff herein has never received any part or portion of said property, nor anything for or on account of her interest in the estate of said Ann McKenna, deceased. Plaintiff further states that, upon the death of said Ann McKenna, the said defendant, Julia Shaffray, for the purpose and with the intent of defrauding the heirs of said Ann McKenna, including plaintiff herein, and for the purpose of getting possession of the property and effects of the said Ann McKenna, and being the property hereinafter mentioned, took possession of all the moneys, property, and effects formerly belonging to the said Ann McKenna, deceased, being seven hundred and fifty dollars, in addition to the property hereinafter mentioned, and with said intent and purpose did thereafter, on or about the 22d day of August, A. D. 1893, procure the appointment of William C. Richardson as administrator of the estate of said Ann McKenna; that for the purpose and with the intent to cheat and defraud this plaintiff out of her interests, rights, and claims in and to the estate of said Ann McKenna as aforesaid, said Julia Shaffray retained possession of all the property of the said Ann McKenna, and on the 23d day of August, A. D. 1893, caused a petition to be filed in the circuit court of the city of St. Louis, Missouri, in which said

Julia Shaffray was plaintiff, and said William C. Richardson, as public administrator of the city of St. Louis, in charge of the estate of said Ann McKenna, and Edward Shaffray, Mary Lee, and husband of plaintiff in that suit, Patrick Shaffray, were made defendants (being suit No. 93,002, room 4 of said circuit court); that in the petition filed in said suit by Julia Shaffray, for the purpose and with the intent of cheating and defrauding this plaintiff out of her rights, claims, and interest in and to the estate of said Ann McKenna, she falsely and fraudulently represented to this honorable court and alleged that prior to the death of the said Ann McKenna, to wit, on March 1, 1893, the said Ann McKenna had promised and agreed with said Julia Shaffray, in consideration of the said Julia Shaffray agreeing to take care of and provide for her the remainder of her life, at her death she would give to Julia Shaffray all the property which she (Ann McKenna) might then own; that in said petition said Julia Shaffray further falsely and fraudulently represented to this court that she, Julia Shaffray, did so provide and care for said Ann McKenna till the time of her death, July 1, A. D. 1893, all of which said Julia Shaffray then and there well knew to be false and untrue; that in said petition said Julia Shaffray further alleged that she so waited upon and cared for said Ann McKenna without any charge to the said Ann McKenna; that in truth and fact said Ann McKenna paid said Julia Shaffray, prior to her death, for such provision and care, in services and money. Plaintiff further alleged in said petition that said Julia Shaffray had in her lifetime caused a will to be prepared, giving to her, said Julia Shaffray, nearly all her property and estate, all of which allegations were false and untrue, as said Julia Shaffray then and there well knew; that thereupon said Julia Shaffray, in her said petition, prayed a decree vesting in her absolutely all the property and estate of said Ann McKenna. Plaintiff further represents that said Julia Shaffray, for the purpose of cheating and defrauding this plaintiff, failed to make this plaintiff a party to said suit, and failed to notify her of the pendency of the same. Plaintiff further states that, in furtherance of the said scheme of the said Julia Shaffray to defraud this plaintiff, at the trial of said cause, by means of fraudulent and incompetent testimony, procured, produced, and given by and in behalf of said Julia Shaffray, tending to prove the allegations of said petition, she procured a judgment or decree in said cause on the 5th day of December, A. D. 1893, awarding to her, said Julia Shaffray, all the property, effects, and estate of the said Ann McKenna, deceased: that among the said property was the following: Nine hundred and thirty-four dollars and ninety cents ($934.90) cash; note of J. T. Donovan Real Estate Company for $400, dated June 26, 1893, due one year from said date; also note for $1,600, dated June

4, 1890, due three years after said date, and extended for 3 years from said date, and being a principal note; and 6 interest notes, for $48 each, dated said 4th day of June, 1893, and payable, respectively, 6, 12, 18, 24, 30, and 36 months after said last-named date; and deed of trust conveying to the trustee of said Ann McKenna a tract of ground, with improvements thereon, fronting 24 feet on the east line of Pleasant street, and being the north 6 feet of lot 10, and the south 18 feet of lot 11, of city block No. 1945 of the city of St. Louis, Missouri; said deed of trust being of record in Book 959, page 352, of the office of the recorder of deeds for the city of St. Louis, Missouri; that in pursuance of said decree and judgment the said Julia Shaffray obtained possession of the property above described from said William C. Richardson, and did thereafter, in pursuance of her said purpose to cheat and defraud this plaintiff, cause said real estate hereinabove described to be sold under the said deed of trust, and did on the 25th day of August, A. D. 1899, purchase said real estate at such sale with the money and property belonging to the estate of Ann McKenna, and fraudulently obtained by the said Julia Shaffray, as herein set forth (said trustee's deed being of record in Book 1519, page 405, of the office of recorder of deeds for the city of St. Louis, Missouri), and now claims to be the sole and absolute owner of all the said property and the estate formerly belonging to the estate of the said Ann McKenna. Plaintiff further states that the said Julia Shaffray, for the purpose of obtaining said judgment and decree in said cause, and for the purpose of avoiding a contest in said case, after the institution of said suit, and on the day of said trial, compromised with and paid Mary Lee the sum of $500, one of the defendants in said suit, and an heir of said Ann McKenna, as aforesaid, and thereby caused said Mary Lee not to make a defense in said suit, and failed to notify Edward Shaffray, one of the defendants in said suit, of the pendency of the same, although she well knew his place of address and abode, in the state of Louisiana, and well knew that said Edward Shaffray was not in the state of Missouri at said suit, and that he knew nothing of the pendency of said suit; that, in furtherance of her said scheme to cheat and defraud this plaintiff, said Julia Shaffray caused her husband, the only other defendant in said cause, to default, and caused said William C. Richardson, administrator as aforesaid, to not make an active defense in the said suit, by means of the false and fraudulent representations alleged herein to have been made by said Julia Shaffray; that for that purpose said Julia Shaffray falsely and fraudulently represented to said Richardson that there were no other heirs than those mentioned as defendants in said suit of Ann McKenna, and that said Ann McKenna had made and entered into the agreement alleged in said petition

in the said suit, and that all the heirs were willing and consented that the said Julia Shaffray should obtain the judgment and decree prayed for in the said petition, and hereinbefore set forth; that said Richardson relied upon such false representation, and failed to make any further investigations; that, if he had made any further investigations, he would have learned that said representations made by said Julia Shaffray were false and untrue, and that said Richardson thereupon failed and neglected to procure witnesses to disprove the allegations made in the petition in said suit, and to defeat said action; that upon investigation he could easily have procured witnesses to disprove the allegations in said petition contained; that at the trial of said cause Julia Shaffray represented to the court, through her attorneys, that said suit had been compromised, and that said Richard

son

was satisfied, and all defendants had consented that said plaintiff obtain the said decree; that said Richardson was present in court by attorney at the time, and consented thereto; that said Richardson's attorney failed to cross-examine the witnesses produced, the witnesses introduced at said trial, and failed to ask them the names of the heirs of said Ann McKenna; that upon a cross-examination of said witnesses, and if plaintiff's witnesses had been interrogated, it would have appeared that plaintiff herein, Catharine Tapana, was an heir of said Ann McKenna, and that the allegations contained in the petition in said cause were untrue; that by reason of the premises a fraud was worked upon the court, and said decree obtained thereby. Plaintiff further states that she was not a party to said suit, and had no knowledge of the pendency of the same, nor of the said alleged fraudulent claim of the said Julia Shaffray, that she had no knowledge of said fraudulent acts and claim of Julia Shaffray until she came to the city of St. Louis, Missouri, in the year A. D. 1900; that she did not even know of the decease of said Ann McKenna until about the year A. D. 1900. Plaintiff further states that said Julia Shaffray, for the purpose of cheating and defrauding this plaintiff out of her rights in and interests to the said property and estate of said Ann McKenna, falsely represented to the other heirs of the said Ann McKenna that this plaintiff was deceased. Wherefore plaintiff prays this court to order and decree that defendant account to plaintiff for her interest as an heir in and to the estate of the said Ann McKenna, and in and to the property described herein; that this honorable court decree that said Julia Shaffray holds said property as a trustee for plaintiff herein, and that, for such claim and interest in and to said real estate and estate of said Ann McKenna, plaintiff have a lien and interest in and to said real estate and property, or so much thereof as may be in defendant's possession; and for such other and further orders, judgments, and decrees as to the court

may seem meet and proper in the premises." The demurrer is general, and assigns as the sole ground that the said petition does not state facts sufficient to constitute a cause of action. The court sustained said demurrer, and plaintiff appealed.

1. The final judgment in favor of defendant in the trial court, after sustaining the demurrer to the third amended petition, was in accordance with our statute on the subject. Rev. St. 1899, § 623. In the absence of any different showing, we assume that at least two prior petitions had been adjudged insufficient in the manner described in that section; for we are bound to assume that the trial court correctly acted, until a different state of facts is developed. State ex rel. Harrington's Adm'r v. Pohlman (St. L.) 60 Mo. App. 444. Error must be affirmatively indicated. So we must inquire whether the ruling on the last demurrer was correct.

2. The proposition invoked by defendant, namely, that fraud for which equity will vacate a judgment must be some fraud in the very "concoction" thereof, and not merely in the substance of the case on which the judgment was pronounced, is sustained by several precedents in this state. Moody v. Peyton, 135 Mo. 482, 36 S. W. 621, 58 Am. St. Rep. 604; Fears v. Riley, 148 Mo. 49, 49 S. W. 836. Yet, on the other hand, a fraud by which a party, or one interested in a litigation, is prevented or debarred from asserting his rights therein, in such a way as to suffer injury, is remediable, according to our home authorities. Wonderly v. Lafayette Co., 150 Mo. 635, 51 S. W. 745, 45 L. R. A. 386, 73 Am. St. Rep. 474; Smoot v. Judd, 161 Mo. 673, 61 S. W. 854, 84 Am. St. Rep. 738. We consider that the allegations of this petition bring plaintiff's case within the last class mentioned. The alleged deceitful misrepresentations to the administrator, whereby he was induced to make no defense in the former suit, are fully set forth in the petition, and they constitute a fraud against which equity will give relief. That fraud is of the sort which cannot escape investigation on account of the judgment of a court which it induced. The administrator was misled into making no defense by the fraudulent misrepresentations alleged, and that amounted to fraud in the "concoction" of the judgment, within the meaning of the aforesaid Missouri decisions on that subject.

3. It is not necessary to inquire whether all the proper parties are before the court, as no such question was raised in the circuit court. Rev. St. 1899, § 864. The demurrer does not proceed upon any defect of parties, and any such objection was waived by failure to make it in the trial court. Rev. St. 1899, § 602.

We are of opinion that the last petition of plaintiff states a case for equitable relief. The judgment is reversed, and the cause remanded.

BLAND, P. J., and GOODE, J., concur.

1. In an action to establish a resulting trust to land purchased by plaintiff's father, evidence held to justify a finding that a portion of the funds used for that purpose was the separate property of plaintiff's deceased mother, which descended to plaintiff as her mother's sole heir.

Error to circuit court, Scott county; Henry C. Riley, Judge.

Action by Ella P. Owensby against Laura Chewning and others. From a judgment in favor of plaintiff, defendants bring error. Affirmed.

R. A. Kingsbury and Albert De Reign, for plaintiff's in error. Marsh Arnold, for defendant in error.

VALLIANT, J. Suit in equity to establish a resulting trust in 80 acres of land in Scott county. Plaintiff is the daughter of Thomas Owensby, now deceased. Her mother was Cordelia Owensby, the first wife of Thomas Owensby. She died in 1881, leaving the plaintiff her sole heir. After the death of her mother, the plaintiff's father married the defendant Laura, who, after his death, married defendant J. K. P. Chewning. The other defendants are the minor children of plaintiff's father by his second marriage. The plaintiff's evidence was to the effect that a tract of land, about 250 acres, in which her mother had a one-fifth interest, was sold for partition in 1880, and at the sale plaintiff's father became the purchaser of the 80 acres in question for the price of $53, of which he paid 20 per cent. down, and gave his note at 12 months for the balance, secured on the land. The share of plaintiff's mother in the proceeds of the sale amounted to about $50. Two witnesses, testifying each as to separate occasions, stated that the plaintiff's father told them that he paid for the land with the money that came to his wife as her share of the proceeds of the partition sale. One of these witnesses stated that the conversation with him was upon the occasion when the plaintiff's father announced to him that he was about to be married again, and in that connection said that he intended, before getting married, to will the land to the plaintiff, because it was bought with her mother's money. Plaintiff's testimony also showed that her father was a man of little means. The testimony on the part of the defendants was that of one witness. the defendant J. K. P. Chewning, who testified that the share of each party to the partition suit in the proceeds of the partition sale, after costs and expenses were paid, amounted to only about $20; that the note given by Owensby for the deferred payment on his purchase came due about three weeks

after the death of his wife; and that he came to witnesses, and asked a loan of $30, saying that on account of funeral expenses and a doctor's bill he desired to settle he was short, and did not have money enough to take up his note on the land. He said he wanted the money to help him finish paying on the note, and witness loaned him that amount. The testimony of this witness as to the amount coming to each of the parties from the partition sale appears to be based on hearsay, but no objection was made to it on that ground. Upon this evidence the chancellor found that one-half the purchase money paid by plaintiff's father for the land was the money of plaintiff's mother, and that he took the title to that extent in trust for his wife, and that on her death the plaintiff, as her sole heir, inherited that one-half. The decree was in plaintiff's favor for an undivided one-half interest in the land. From that judgment defendants appeal.

There is no difference between the counsel as to the law of this case. They differ only as to the probative effect of the evidence. We appreciate and reaffirm what has heretofore been said by this court to the effect that testimony to establish a resulting trust must be clear, strong, and unequivocal; that what dead men are said to have said should be received with great caution. The following cases, cited in the brief of the learned counsel for appellants, fully sustain their view of the law: Johnson v. Quarles, 46 Mo. 423; Woodford v. Stephens, 51 Mo. 443: Ringo v. Richardson, 53 Mo. 385; Modrell v. Riddle, 82 Mo. 31; Davis v. Green, 102 Mo. 170, 14 S. W. 876, 11 L. R. A. 90. But, without relaxing any of the rigidity of those rules, we think the evidence fully sustains the findings of the learned chancellor. That the plaintiff's mother had an interest in the land sold for partition is unquestioned; that her share of the proceeds of the sale amounted to about the sum that her father bid for the land he purchased at that sale is proven by the preponderance of the evidence. There is nothing to indicate that the share of the plaintiff's mother was ever paid to her. The inference would be that, if it ever came to her, it came through the agency of her husband, and his declarations were that he used it in payment for this land. These declarations were not vague or casual remarks, but were made with deliberation, and pointed. The declaration to one of the witnesses was on a solemn occasion, when he was about to be married again, when doubtless he was reflecting on the consequences that his marriage might have on the rights of his daughter. It was when he announced to this friend his purpose of marrying, and with that event in view, and because of that event. he said that he was going to will this land to his daughter, because it was her mother's money that bought it. He was not then

speaking of willing it in the future, or at his death, but he expressed the purpose of then