Barber v. Nunn. are, in the main, the general facts in regard to the circumstances under which the conveyance was made. Others will be referred to in discussing the sufficiency of the evidence to sustain the judgment of the trial court. I. The first contention made by the defendants is that the trial court was without jurisdiction to hear and determine this case. Circuit courts are authorized under the law, to be held at two different places Venue. in Lewis County, viz., under the general law, at Monticello, the county seat, and at Canton, under a special act, approved March 5, 1897 (Laws 1897, p. 60). This act provides, under Section 3 of same, first: "That the circuit court held at Canton shall have original and exclusive jurisdiction in all civil cases, either in law or equity, arising in that part of Lewis county lying east of the range line between ranges six and seven." A subsequent paragraph of the same section provides that "said court shall have original and concurrent jurisdiction in both civil and criminal cases." The instant case "arises," to employ the language of the act, "in that part of Lewis county lying east of the range line between ranges six and seven." It is contended, therefore, that it should have been commenced at Canton instead of at Monticello, and, as a consequence, that the court was without authority to hear and determine the same. While the initial paragraph of said Section 3 attempts, according to a literal interpretation of its terms, to confer original and exclusive jurisdiction as therein stated, this court has held that the language as thus employed was an act of supererogation, and that it was not intended thereby to do more than as is provided in a succeeding part of the same section, viz., to give the circuit court held at Canton like jurisdiction within the limit of the statute, to that given the circuit court when held at Monticello; and that the jurisdiction conferred by the general law upon the circuit court at Monticello was Barber v. Nunn. in no wise curtailed by the seeming exclusive provisions of the said Act of 1897. [State v. Vickers, 209 Mo. 1. c. 29; State v. Sublett, 191 Mo. 1. c. 176; State v. Hall, 189 Mo. 1. c. 267.] Other than as attempted to be limited by the Act of 1897, no question is made as to the jurisdiction of the circuit court. This contention of the appellants is, therefore, overruled. II. There remains only the contention that the evidence did not support the judgment. In addition to the general facts heretofore stated, it appears that within a month of the filing of the suit for damages by plaintiff against the defendant, Joseph Nunn, said deed was made by him to his brothers, the other defendant, for his undivided interest in the land he and they had inherited. This deed, made at the request of one of the grantees, was ante-dated, on the ground that its making had been agreed on sometime before. The scrivener ante-dated it in the body of same, as requested, but inserted in the acknowledgment the actual date of the making and execution of the same, to-wit, August 27, 1912. The consideration he was directed to place in the deed is shown to have been largely in excess of the value of an undivided one-third of the land. No explanation of this excessive valuation is attempted. The evidence as to the manner in which the payment of this consideration was made is in the most general terms, and it was stated in defendants' depositions to have been paid. by the surrender of a note by the grantees to Joseph Nunn, theretofore given them; for what purpose no reason is stated, nor is the amount given, except by implication, in that they paid Joseph $1800 in currency, which they had gotten from the sale of a mine at Joplin. After the purported sale of the land, the three brothers continued to occupy, control and cultivate it as before. Subsequent to the making of the deed a party desired to rent a portion of the land, and upon making inquiry of Joseph, in regard thereto, he said: "We have a place which we might rent to you." So far as the record discloses, the defendants neither owned Barber v. Nunn. The jointly nor severally any other than the land here involved. Before the bringing of the damage suit the defendants kept a joint bank account, and each checked on same; subsequent thereto, the bank was directed to change the account to that of Reason and Henry Nunn, but despite the omission of Joseph Nunn's name from the account, he checked upon the same, as before, and his co-defendants and the bank recognized his authority so to do. That these amounts were small does not obliterate the fact that ownership was thereby manifested, and that his right to exercise same was approved by those who had the authority to question it. purpose of this conveyance may be deduced from a survey of all the facts connected therewith. If these show a purpose on the part of the grantor in making this conveyance to put the property conveyed out of the reach of an execution which might follow an apprehended judgment, then it constituted a fraudulent transaction on his part; and if the grantees accepted the deed with a knowledge of the fraudulent purpose of the grantor, and with the intent to assist him in the perpetration of this fraud, notwithstanding they may have paid the grantor what the property was worth, it constituted a fraudulent transaction on the part of both parties, and the sale should be set aside. [Gust v. Hoppe, 201 Mo. 1. c. 298.] The triers of the facts so found in this case. In this finding, we are authorized in presuming that the court, in addition to the force of the affirmative facts themselves, took into consideration, as it was authorized to do, the relationship of the parties, the manner in which their business was conducted before and after the deed, and the continued exercise of authority of Joseph Nunn over the property after the deed was made, in determining as to the existence of fraud. [First National Bank v. Frey, 216 Mo. 1. c. 42; Robinson v. Dryden, 118 Mo. 534; Van Raalte v. Harrington, 101 Mo. 602; Sharp v. Cheatham, 88 Mo. 498; Ridgeway v. Holliday, 59 Mo. 444; Stoffel v. Schroeder, 62 Mo. 147; Stivers v. Horne, 62 Mo. 473; Dickson v. Koehler v. Rowland. Kempinsky, 96 Mo. 252; Stewart v. Thomas, 35 Mo. 202.] In addition, where a question of fraud is involved, any unusual clause in an instrument or unusual method of conducting business apparently done to give the transaction an air of honesty and good faith is of itself a badge of fraud. [State to use v. O'Neill, 151 Mo. 1. c. 67; Snell v. Harrison, 104 Mo. 158; Baldwin v. Whitcomb, 71 Mo. 651.] We have adverted to the fact that defendant failed to take the stand and offer any evidence in their own behalf. Where, as in this case, the petition directly charges fraud upon defendants, their unexplained failure to appear and testify will be regarded as a strong circumstance against them; and this, whether subpoened by the adverse party or not. [Marbary v. McClurg, 74 Mo. 575; Conn. Mut. Life Ins. Co. v. Smith, 117 Mo. 261.] Under the state of facts, therefore, disclosed by this record, we have reached the conclusion that the evidence is ample to show that the transaction was fraudulent, and we, therefore, decline to interfere with the finding of the trial court. This results in an affirmance of this judgment, and it is so ordered. All concur. ELIZABETH KOEHLER and AUGUST KOEHLER, Her Husband, Appellants, v. LEONARD N. ROWLAND et al. Division Two, July 30, 1918. 1. QUIETING TITLE: Character of Action: Pleading. The character of an action brought under Section 2535. Revised Statutes 1909, is determined by the issues which the pleadings raise. If they present issues of equitable cognizance the action becomes a suit in equity, but a straight action under the statute, in the terms of the statute, is an action at law. 2. -: Converted by Answer: Affirmative Equitable Relief. Where the petition in a suit brought under Section 2535 states an 3. 4. Koehler v. Rowland. action at law, an answer which sets up an equitable defense and asks affirmative relief converts the action at once into a suit in equity, so that the rules of equity apply; but the setting up of an equitable defense does not so convert the action unless affirmative equitable relief is prayed. : : Forfeiture: No Prayer for Affirmative Relief. Where the petition follows Section 2535 substantially in the allegations of plaintiffs' rights and the defendants' claim, and prays the court to hear and determine all the rights, claims and interests whatsoever of the parties, to adjudge and decree that plaintiffs are the owners and to award them possession, and the answer, after stating reasons why a certain condition named in defendants' deeds should not work a forfeiture of their title, prays the court to adjudge that plaintiffs "have no right, title or interest in or to said property, and that the title to said property be quieted and confirmed in these defendants free from any claim of the plaintiffs, and for such other and further relief as to the court in equity and good conscience may seem meet and proper," it does not contain a prayer for affirmative equitable relief, and the action is not, therefore, converted into a suit in equity. but remains an action at law. : Findings of Trial Court: Binding On Appeal. If the suit brought under Section 2535 is an action at law, the findings of the trial court, if supported by substantial evidence, are binding on the appellate court. 5. CONVEYANCES: Condition: Occupation by Negroes. Where the deed contained a condition that the property "shall not be sold. leased or rented to negroes," a breach is shown if a part of the building on the lot was leased to negroes, the intention of the restriction being to prevent negroes from coming on the premises as tenants; and the deeds must be interpreted in accordance with that manifest intention, as gathered from them as a whole. 6. 7. -: Restrictive Sale or Use: Forfeiture. Forfeiture is a harsh remedy and where a stipulation in a deed can be construed as a mere restrictive covenant and not a condition, so as to avoid a forfeiture, it will be so construed; and the question is to be determined from the language used, the situation of the parties, their relation to the subject of the transaction, and the object in view; but where the language is unmistakable, particularly where there is a provision for re-entry upon a breach of the condition, or where the right to re-enter is plainly implied, it is a forfeiture. : Sale or Lease to Negroes: Forfeiture. The deed contained a condition that the "above described property shall not be sold, leased or rented to any negroes for twenty-five years from date hereof, and in event of such transfer, lease or rental before the expiration of said term, said property shall revert to grantor or |