¶1DISSENTING OPINION.
¶2This cause, having been transferred to. Court in Banc and reargued, was assigned •. to Lamm, J., to write the opinion therein.
¶3After having seen, read and considered his opinion, I dissent therefrom and adhere to the views expressed by me in my divisional opinion, which is as follows : ’
¶4This is a bill in equity, instituted in the circuit court of Jefferson county by the plaintiff against the defendant, to set aside and cancel a certain warranty deed, conveying to the latter three hundred and sixty-two acres of land, situated in said county, particularly described in the petition, for the' alleged reason that it was executed by John W. Null, Sr., and accepted by defendant, John W. Null, Jr., in fraud of the former creditors.
¶5A trial was had before the chancellor, and the findings of fact and decree of the court were for the defendant, and the plaintiff duly appealed to this,court. The following facts are undisputed:
¶6John W. Null, Sr., owned the land in controversy and resided upon it. He departed this life on October 24," 1905-, at the age of eighty years. The defendant was a grandson of the deceased. Dr. W. H. Null was a son of the latter, and the father of the defendant. The plaintiff was a son-in-law of John W. Null, Sr., having many years previous to the transactions here involved married Lou Null, his daughter.
¶7The deed of conveyance assailed by this proceeding was executed October 2, 1901, for the expressed *127consideration of ten thousand dollars, and was promptly and duly recorded in the office of the recorder of deeds of said county.
¶8On July 19, 1892, John W. Null, Sr., and one J. P. Null executed to plaintiff their joint and several promissory note for the sum of $478.42, due twelve months after date, hearing eight per cent interest per annum. Various payments were made on the note at different-dates by J. P. Null, the last the 13th day of November, 1896. This note was presented to the probate court of Jefferson county for allowance against the estate of John W. Null, Sr., deceased, and on December 23,1905, said note was allowed for the sum of $744.10, and assigned to the fifth class.
¶9Plior to the death of John W. Null, Sr., to-wit, in the year 1900, he borrowed of the plaintiff's brother, Theodore Walther, the additional sum of $2500 with which to pay his debts, gave his promissory note therefor and secured the same by a deed of trust on the land involved in this case.
¶10In addition to the indebtedness before mentioned, John W. Null, Sr., at the time of the execution of the deed to defendant, was indebted to his son, Dr. W. II. Null, in the sum of $260, evidenced by two.promissory notes, and to Izella Null, his niece, in the sum of about $90, also evidenced by a promissory note.
¶11At the date of his death John W. Null, Sr., owned but little of this world’s goods, which was inventoried and appraised, as shown by the records of the probate court, at $34.35.
¶12The plaintiff’s evidence tended to show that the land in controversy was worth $6000 at the date of the conveyance, and that defendant paid John W. Null,. Sr., no consideration whatever therefor.
¶13The evidence introduced by the defendant tended to show that the land in question was not worth more than $3500, or $4000 at most, at the time it was conveyed to him; that John W. Null, Sr., had for several *128years prior to this conveyance endeavored to sell it for those figures, but was unable to secure a purchaser. That he was old and infirm, and had no one to support and take care of him. That shortly prior to the time the conveyance was made to defendant, said John W. Null, Sr., offered to convey the land in controversy to his son, Dr. W. H. Null, in consideration that he would assume the $2500 deed of trust thereon due the plaintiff, release him from the $260 he owed him, Dr. Null, and assume the $90 he owed his niece, Izella Null, and support him during the remainder of his life. That offer Dr. Null refused. That shortly thereafter he made substantially, the same proposition to the defendant; and that after consultation with his father, Dr. Null, he accepted the same, that is, ripon these terms. They valued'the land at $4000, which was covered by a deed of trust securing the note before mentioned for $2500; that he assumed the payment of the $260 due his father, and the $90' due his cousin, Izella Null, and agreed to support his grandfather, John W. Null, Sr., during the remainder of his life, but not assuming the $2500- deed of trust, but agreed, however, to accept the conveyance of the land subject to said deed of trust. That the $10,000 consideration expressed in the deed was agreed upon and Inserted in the deed so as to assist the defendant in speculating with the land. That in pursuance to that agreement the deed was executed and delivered, and that defendant immediately undertook to and did support and maintain the grantor from the date of the deed to the date of his death, which was a few days over four years, at a cost of about $25 per month. That at the same time defendant took possession of the land, made some valuable and lasting' improvements thereon, namely, placed a new roof on the house and new fences practically around the entire farm, and leased it for a rental of three hundred dollars per annum. That subsequently he paid on the Izella Null note $10.75; *129and paid off the notes for $260 due his father in stocks in a corporation organized hy the defendant. That at all times the plaintiff had personal knowledge of the conveyance to defendant and the terms upon which it was made, and that he was supporting the grantor in pursuance thereof. That notwithstanding that knowledge, plaintiff took no steps to collect the note presented and allowed hy the prohate court from John W, Null, Sr., during his lifetime, and then not until he presented it to the probate court for allowance.
¶14The defendant’s evidence, also tended to show that John W. Null, Sr., had subsequently .to the execution of the note hy him and J. F. Null to plaintiff, during the latter’s financial stress, supported and clothed his wife and two sons almost two years, and that he considered and repeatedly stated that said support and clothing had more than satisfied the note, the same, being tiie note allowed by the probate court; and for that reason that plaintiff never attempted to collect it of John ~W. Null, Sr., during his lifetime.
¶15The plaintiff in rebuttal introduced evidence tending to show that prior to .John W. Null’s death he sent the note to some relative in Jefferson county for collection; but it seems that no further steps were taken in that direction. Also that plaintiff knew nothing of the terms upon which the land was conveyed to defendant.
¶16I. While there was no objection made to the introduction of the evidence by respondent tending .to show that the note allowed by the probate court had been paid by John W. Null, Sr., by the support and clothing of the appellant’s wife and children, nevertheless it is insisted here that since the note was allowed by the probate court, it passed into judgment, which cannot be questioned in this collateral proceeding.
¶17*130The pleadings in this case do not assail the validity of the judgment of the prohate court for fraud or otherwise, hut simply allege that the note had been paid by John W. Null, Sr., during his lifetime.
¶18Not stopping to discuss, the law which would have governed the case had the pleadings charged the procuring of the judgment by fraud, we will proceed directly to the discussion of the question, can that judgment be successfully assailed in this, a collateral proceeding ? Clearly not.
¶19This identical question was presented to this court in the case of Clark v. Thias, 173 Mo. 628. Our late lamented brother, Judge Fox, in the discussion of that question, in speaking for the court, on page 643, said: ‘ ‘ The first contention of the appellants is, that the court committed error in striking out that portion of the answer which alleged that the note executed by Mary Larkin was executed without any consideration whatever. This proceeding is not an action upon the note to the end of reducing it to a judgment; but the suit is to cancel, and set aside a certain conveyance executed by Mary Larkin; and it is alleged in the petition, and it is admitted that this note was duly allowed in the probate court of Franklin county. If the position taken by appellants is to be maintained, the effect of this answer is to go behind this judgment and show that the note was without any consideration, and thereby destroy the force and power of the judgment rendered. This contention must be ruled against appellants. The allowance of this note by the probate court has the force and effect of a judgment.”
¶20II. The next insistence is, that a voluntary conveyance without consideration made by a debtor in embarrassed circumstances, or by one whom the conveyance itself renders insolvent, is fraudulent- and void as to existing creditors. Numerous authorities are cited in support of that proposition.
¶21*131As an abstract legal proposition we suppose no one will question its soundness, but in its application to tbe case at bar counsel for appellant lias totally ignored all the evidence introduced by the respondent tending to show that he purchased the land in controversy in good faith and paid therefor an adequate consideration.
¶22That evidence tended to show the land was not worth over $4000; that it was conveyed to respondent subject to a $2500 deed of trust. That left the equity in the land worth only $1500. In consideration of that equity the respondent, the evidence tended to show, assumed the payment of three promissory notes which were owing by the grantor, amounting to $350, and agreed to support him the remainder of his life, which was reasonably worth $300 a year, and that he lived something over four years after executing the conveyance to respondent, which at $300 a year amounted to $1200; and if we add to that the debts assumed by the respondent it shows that the equity in the land above mentioned actually cost respondent $1550, or fifty dollars more than it was actually worth. In addition to that, the grantor might have lived much longer, which chance respondent assumed when he accepted the conveyance under the agreement; and had he done so, it would have cost him more. According to appellant’s own evidence, there can be no serious doubt but what respondent supported the grantor from the date of the deed to the date of his death, four years. We say this, for the reason that his evidence shows that the grantor had no other property at the time of the conveyance, and the record is totally barren of any evidence tending to show that he was supported by any one else, except the respondent.
¶23The case of Jones v. Geery, 153 Mo. 476, is more like this ease in both law and fact than any two eases' my attention has been called to during my thirty-five years’ experience at the bench and bar. In the case. *132Gantt, P. J., in speaking for the court, on page 477, said:
¶24“The farm involved is variously estimated to be worth from $3000' to $4000.
¶25“Robert Geery, the grantor, was an old man in his eighty-fifth year. When an old man and a widower, he married a second time and conveyed his farm to his second wife and her children. They afterwards separated and he brought suit to set aside his deed and that action resulted in setting aside the deed, but giving the wife judgment for $1300'. Attorney’s fees and other charges swelled the total of the old gentleman’s indebtedness to about $2300. At the solicitation of the old man’s counsel, his two sons, Andrew and Robert, Jr., were induced to assume his indebtedness and undertake to provide for his support the remainder of his life, and upon these terms he conveyed the land to them. They borrowed enough on the land to liquidate his debts above mentioned and paid them. Thereafter the plaintiff, who is a son-in-law, brought suit against the old man and recovered judgment for $250' for board alleged to have been furnished the old man, and now seeks to have the deed set aside as voluntary, and the farm subjected to the payment of said judgment for board. The circuit court found for defendant, and plaintiff appeals.
¶26“There is no pretense whatever that the conveyance was the result of any actual fraud. Indeed, it appears that it was executed with the knowledge of plaintiff and if not with his full consent certainly without any objection at the time. Nor is the claim made that it was a voluntary conveyance, but only that it was partially so.
¶27“The propbsition is that as the proof shows the farm to be worth $3000, there was- a gift of $700 by ' Robert Geery, Sr., to his sons Andrew and Robert, that being the difference between the $2300 of debts they assumed and paid and the value of the farm. *133These figures however ignore the further undertaking of the sons to support and care for their father the remainder of his life. The value of such services.plaintiff has fixed at $250 a year. At that.rate it will not take many years to absorb the supposed difference.
¶28■ “As a matter of fact, however, there is no evidence of a gift. Eobert Geery, Sr., in the absence of fraud had a right to sell his farm to his sons in order to pay his debts, and if the price agreed upon was not grossly inadequate, the good faith of the transaction .is not open to an attack like this. It appears that plaintiff was no.t able to buy the farm, but is not satisfied with the trade the old gentleman made for himself.
¶29“Plaintiff testifies that he yoluntarily paid over to the old man $285 which he had been keeping for him, after the deed was made to the sons.
¶30“Plaintiff’s effort to set aside this deed under all the evidence smacks strongly of an afterthought, and does not commend itself to the conscience of a court of equity.
¶31“We see no reason for interfering with the conclusion of the circuit court, and its judgment is affirmed. ’ ’
¶32In the case at bar, independent of the agreement to. support the grantor for life, the trial court was warranted in finding that the conveyance was based upon a. sufficient consideration, especially in view of the bill which charges that the deed as executed was voluntary and wholly without consideration and in fraud of creditors.
¶33There is absolutely no evidence whatever contained in this record which tends remotely to show that there was any actual or intentional fraud perpetrated upon any one by the grantor or grantee in this transaction. Both of them believed the note probated had been discharged by the support the grantor had furnished to the wife and children of appellant; and *134in order to pay the rest of his debts, the grantor borrowed an additional $2500 from the appellant’s brother, Theodore Walther, which was used for that purpose ; but instead of paying all of the debts there was left unpaid the $260' due D'r. Null and $90' due Izella Null, his son and niece. And in order to pay them, and to provide for his support and care in old age, he.executed the conveyance in question. Instead of trying to defraud his creditors, the evidence shows he was at all times doing all in his power to pay all of them in full; and doubtless to his dying day he thought he had done so.
¶34The chancellor found there was no fraud and dismissed the bill for want of equity. In our opinion that finding was well supported by the evidence; and under the pleadings and evidence, we are unable to see how he could have done otherwise. This court in such cases will defer largely to the findings of the trial court. [Huffman v. Huffman, 217 Mo. 182; Miller v. McCaleb, 208 Mo. l. c. 573.]
¶35III. It is finally insisted by counsel for appellant, that the chancellor erred in refusing to mate special findings of fact and giving separate conclusions of law, although requested to do so. This question was expressly passed upon by this court in the case of Blount v. Spratt, 113 Mo. l. c. 53, and affirmed in Miller v. McCaleb, 208 Mo. l. c. 573. It was there held that such refusal was not reversible error.
¶36Finding' no error in the record, the judgment should be affirmed; and it is so ordered.