172 Mo. 610 | Mo. | 1903
The record discloses in this case that it was admitted by both plaintiff and defendants that appellant had the legal title to the land in controversy, subject to whatever equities the defendant Ohrisman may have, and it is further admitted that defendants were, at commencement of this action, in possession. It is unnecessary to burden this opinion with a detailed statement of the evidence. As to the questions presented by the record in this cause, for determination, it is sufficient to say that the only issue submitted to the trial court was the one presented by the equitable answer and its denial in the replication.
The only contested question in this cause was as to the payment of the balance of purchase money for this land. Upon this dispute, the testimony is sharply in conflict. Prom this record, it appears to be practically conceded, that if the defendant made full payment for the land he is entitled to a conveyance from the plaintiffs. This concession we find in the brief and argument submitted to this court by the appellant, in which it is stated, “There has never been a time when he could not have paid balance of purchase price and got' a deed. He can yet pay costs and balance of purchase price and get a deed. ’ ’
The testimony upon the issue as presented by the answer, as before stated, was conflicting.
Upon the submission of this cause to the trial court, on the testimony and admissions of parties heretofore mentioned, it rendered the following judgment:
“Now comes the parties by their respective attorneys and all and singular the matters and things herein are submitted to the court for trial, and the court having seen and heard the pleadings herein, and all the evi*616 dence adduced by the parties, and being fully advised in the premises, doth adjudge herein for defendant. It is therefore considered and adjudged by the court that» plaintiff take nothing by this action, that defendant go without day and recover from plaintiff the costs and charges of this suit expended.”
While we will express no opinion as to how the trial court should have decided the issue presented by the equitable answer in this cause, or in whose favor the evidence preponderated, we are clearly of the opinion that the judgment rendered was erroneous. If the court found the issues for the defendant, then there should have been a decree in accordance with the prayer in the answer, vesting the title in him, or if under the evidence the court found all the issues for the defendant, except as to the payment of the balance of the purchase money, then- a conditional decree could have been rendered, conditioned upon the defendant paying the balance of the purchase money, and all interest'due thereon, together with cost in the case, then the title to vest in the defendant.
The defendant in this cause was either entitled to one of the decrees, as suggested herein, or he was not entitled to recover at all.
It is admitted in the record that the legal title to the land in dispute was in the plaintiff, subject to the equities of the defendant, and the only manner ,in which this title, as is here admitted, can be defeated is upon a proper showing by competent evidence introduced at the trial and a decree rendered in response to such evidence.
This judgment can not be supported upon the issues presented, and the evidence and admissions submitted to the trial court.
As this case is to be retried, we will pass upon the contentions as to the admissibility of evidence.
The first question upon the subject to which our attention is called is the error complained of in the action’ of the court, in admitting the notes in evidence, which defendant says he had paid. It is urged that this was error, because the notes were not .marked or indorsed
The only other question as to the admissibility of evidence during the progress of this trial, of which complaint is made, is the refusal of the court to permit defendant Chrisman to answer the question, “Were you not indicted for stealing timber a short time ago, and did you not plead guilty?” We can readily understand why the court excluded this testimony. It simply followed a long and unbroken line of decisions, holding that “convictions which would affect/the credibility of a witness must be a conviction of a felony or petit larceny. ’ ’
In 1895, the General Assembly enacted what is now section 4680, Revised Statutes 1899, which provides that i ‘ any person who has been convicted of a criminal offense is, notwithstanding, a competent witness; but the conviction may be proved to affect his credibility, either by the record or by his own cross-examination, upon which he must answer any question relevant to that inquiry, and the party cross-examining shall not be concluded by his answer.” [Laws 1895, p. 284.]
Most of the cases announcing the rule mentioned that the conviction had to be for a felony or petit larceny, were decided prior to the enactment of this section; some of them, however, were decided since; but this court, at its present term, in the case of State v. Blitz, 171 Mo. 530, fully interprets that section and announces that the rule as laid down in the cases suggested, are no longer to be followed. This question
Entertaining the views as herein expressed, and to the end that the court may have an opportunity of rendering a proper decree in this cause, upon a retrial of it, the judgment in this cause is reversed and remanded.
