Bank of Aurora v. Linzee, 65 S.W. 735

Bank of Aurora v. Linzee

65 S.W. 735

Mo.

1902

Check Treatment

SHERWOOD, P. J.

Ejеctment for land in Lawrence county, and change of venue to Dade county. Answer, general denial. The evidence showed that defendant, a number ,of years before this suit was brought, to-wit, in 1890, had owed plaintiff a considerable sum on notes secured by deed of trust •in which wife joined, with Wheat as trustee. Through mistake oi’ otherwise, dеscription of land in deed wrong, and suit brought by present plaintiff against defendant and one 'Vanhook to refоrm the deed. This reformation occurred and a decree was entered to that effect. The deсree showed, by *499its recitals of fact, that Vanhook was in conspiracy with defendant, to defraud plaintiff of its rights, and, in furtherance of this fraudulent scheme, defendant made a general warranty deed of the property to Vanhook; got the description wrong, and then corrected it by a quitclaim ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍deed executed in 1894, consideration $1, in which deed defendant’s wife joined, relinquishing her dower; and that Vanhook executed to defеndant notes and a deed of trust on the correctly described property, which was, also, part and parcel of the fraudulent scheme aforesaid.

After reforming the deed of trust in this behalf first aforesaid mentioned, the decree went on to foreclose the equity of redemption of defendant in the land as described in the reformed deed of trust, and authorizing the sheriff of Lawrence county to sell the realty thus describеd. Then plaintiff -introduced in evidence, the reformed deed of trust, recorded, and the deed of the sheriff tо plaintiffs under sale, under the decree of foreclosure.

Evidence was also introduced showing defendant in possession at time of action brought; value of rents and profits, and that ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍defendant had built the house оn the property, and had lived there ever since 1885 or 1886, - with his wife and daughter.

The documentary evidence аdduced left no doubt, as to title being in plaintiff, and the court on this theory and proof properly instructed thе jury that such document, as aforesaid, vested the legal title in plaintiff, and directed them to find accordingly, аnd to assess damages and monthly rents and profits.

The errors assigned by defendant, are three, and these:

Eirst, in excluding testimony tending to prove that defendant’s wife was holding undеr the outstanding title of Cheedle; ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍second, in ignoring the right of the wife to enjoy her homestead; third, in instructing the jury to find for рlaintiff.

*500Regarding the first assignment, there was nothing in the nature of legal evidence that Oheedle had any “outstanding title.” The offer of defendant to testify to it was clearly not the best evidence, supposing such evidencе competent, as the deed of trust, if any, should have been produced, or, if destroyed, the record оf it should have been offered, instead of oral testimony to prove the conveyance. [Turner v. Williams, 76 Mo. loc. cit. 618; Cooper v. Ord, 60 Mo. loc. cit. 430, et seq.]

But Oheedle was not a party to the suit, and although he was duly subрoenaed by plaintiff, failed to come forward and testify. If Oheedle was not a party to the suit, he could not be prejudiced by anything occurring in that suit. Besides, in the same offer of testimony of defendant himself, it was offеred to be shown that after the decree of reformation and foreclosure ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍aforesaid, Linzee, as the tenant of Vanhook, had been paying rent to the latter, until the occurrence of the deсree, above mentioned, when he immediately “turned the property over to his wife, for Mr. Oheedle, her brother, since which time she has had control of the property, occupying it and controlling it for Mr. Oheedlе who holds the past due mortgage.”

But, as before stated, there was no evidence as to the existence of such mortgage or deed of trust; and more than that, such offered testimony was in direct conflict with what defendant and other witnesses had previously testified, that defendant himself had built the house on the property in question, in 1885 or 1886, and had lived in it ever since, with his wife and daughter. In these circumstances, the turning-over process of the property to his'wife after the reforming decree was entered, was, considering the antecedеnt circumstances mentioned in that decree, somewhat too diaphanous to be readily credible. And the decree of the court, though rendered in 1896, related to the date of the deed of trust which it reformеd, to-wit, 1890, and left in defendant only an equity of redemp*501tion, having made the deed a valid lien, as between the parties, ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍from the date of its execution. [Rhodes v. Outcalt, 48 Mo. 367; Fitch v. Grosser, 54 Mo. 267; 20 Am. and Eng. Ency. of Law (1 Ed.), p. 726.]

The deed of trust, then, having been reformed, and such reformation relating to 1890, as between the parties, was consequently executed at that date in contemplation of law, and this being the case, the Act of 1895, forbidding the sale of the homestead by the husband, without joining the wife in the deed, does not apply here. And, at the time the deed of trust was executed in 1890, defendant’s wife had only an inchoate right of dower in the property. And having such an inchoate interest in the proрerty,, she was not a necessary party to the suit. This has been the rule in this State ever since Riddick v. Walsh, 15 Mo. 519.

As. the wife was not a necessary party to this suit, and was not made a party, the burden did not lie on defendant’s shoulders, to dеfend his wife’s supposed homestead rights.

The third assignment of error has already met with consideration. . We affirm the judgment.

All concur.