161 Mo. 17 | Mo. | 1901
This is a suit in ejectment for eighty acres in Stoddard county. Both parties claimed under Thomas Galloway, who, it is conceded, acquired title by patent from Stoddard county, dated April 21, 1860. Galloway died May 15, 18Y6. Plaintiff, J. O. Davis, claims in right of his wife, who - was one of the children of Galloway, and also by deed from Galloway’s widow and his other children, dated July 21, 1894; the other plaintiffs claim under their co-plaintiff Davis by deed to undivided half of the land, dated August 2Y, 1894.
Defendants claim under a paper purporting to be a deed from Thomas Galloway and wife to Samuel Holmes, dated March 24, 1860, the execution of which is disputed. The other deeds in defendant’s chain were: a sheriff’s deed in partition conveying the title of the heirs of Samuel Holmes to
The cause was tried by the court, jury waived.
The plaintiffs’ evidence consisted of their deeds above mentioned, and evidence as to who were the heirs and widow of Thomas Galloway, and the rental value of the land.
Defendants offered their paper purporting to be a deed as above mentioned from Thomas Galloway to Samuel Holmes. This was in form a warranty deed from Galloway and wife purporting to bear their signatures and seals, and to have been executed in the presence of Henry Kennedy, justice of the peace, but there was no certificate of acknowledgment, and it? was not recorded until April 24, 1894. The document, the original of which by agreement of the parties.has been filed in this court, has all the appearance of a deed thirty years or more old. When this was offered in evidence 'the plaintiffs objected, and in support of their objection offered evidence tending to show that it was not what it purported to be.
The evidence consisted of the deposition of Alsyria E. Galloway, widow of Thomas Galloway, and the testimony of two witnesses, John E. Liles and W. S. Phelan.
The testimony of Liles and Phelan was to the effect that they knew Galloway and that he could not write his name, but signed papers by making his mark. The last witness, who was the clerk of the court, was asked on- cross-examination, to compare the signatures to the deposition with that purporting to be the signature of Mrs. Galloway to the deed and say if in his opinion they were the same writing, to which he replied: “The handwriting is similar.”
W. H, Miller and Linus Sanford, lawyers, were called by defendant and asked to make the same comparison, and they testified that the handwriting of the two were similar.
The court sustained the plaintiffs’ objection, and excluded the deed from evidence, and defendants excepted.
Defendants then proceeded with their evidence, introdue
He testified that Galloway was present at that sale and that two other men, whom he named, bid on the property. That after the sale there was some question about the record not showing title in Samuel Holmes, and witness with some other gentlemen went to see Galloway about it, and on that occasion Galloway told them that he and his wife had sold the land to Holmes, and acknowledged a deed before Henry Kennedy, a justice of the peace. That at the time of the sheriff’s sale there was a small house on the land and about eight acres were cleared; that witness immediately took possession and through various tenants held possession and paid taxes until he sold to Thomas J. Davis, in 1888. “There never was a time after I purchased this at partition sale that I was not in possession until I sold to Davis.” That after his purchase at the sheriff’s sale, in 1873 or 1874, he sold to certain parties timber on the land and not knowing the exact location of the lines,i asked Thomas Galloway to point them out to him, telling Galloway his purpose; that Galloway went with witness and the timber purchasers, and pointed out the lines. Witness also testified that he knew Henry Kennedy in his lifetime; that he was a justice of the peace in that neighborhood, and died during the war; that witness as a lawyer had practiced his profession before the justice and was acquainted with his signature, and that the signature of that- name on the deed in controversy was the genuine signature of Henry Kennedy. Upon cross-examination witness testified that he never had the Galloway-Holmes deed in his possession until a short while before, and his impression was that it was given to him by Thomas J. Davis; did not know who placed it on record; that Davis resides at Malden, and was not present at the trial; that witness had not seen Henry Kennedy’s writing since' 1860.
R. W. Thompson testified that he was a brother to the administrator of Galloway’s estate, and attended to winding it up, that it consisted of personal property only; he never heard of any real estate as belonging to it, and none was inventoried. He knew Mrs. Galloway, the widow, saw her often; she lived in the neighborhood of this land. Witness remembered Henry Kennedy, that he was a justice of the peace, but could not give the date; it was a long time ago; witness was then a boy; knew the land in 1861, could not say who was in possession then, remembered some of the tenants who had lived on the place since 1872, but not all of them, nor the duration nor dates of their occupancy; they claimed to hold under Bedford; in 1872 there were ten or twelve acres cleared. On cross-examination he said that from 1874 to the time Thomas Davis went on the place, he was under the impression the place was lying out. “It was lying out from June 1874 until Davis went there on the place. So far as I remember there was nobody occupying it until Davis went on the place. There may have been others, but I don’t remember.”
In rebuttal, J. N. Patterson testified that he had known the land since 1880, and that there was no house on it until Thomas J. Davis took possession and built one. In explanation he said that there was a house that was supposed to be on the land, and was used in connection with the clearing, by whom built he did not know, but that when a survey was after-wards made the house was shown to be six or eight feet outside of the line.
Plaintiff J. O. Davis testified that he was thirty-two years old and had known the land since he was a boy, lived within two miles of it, but no one was in possession when he first knew it, nor until T. J. Davis took possession.
The court gave two instructions, or declarations in that nature, at the request of the plaintiff:
“1. The court declares as a matter of law that the evidence is insufficient to establish the execution and delivery of the deed purporting to have been executed by Thomas Galloway to Samuel Ilolmes and offered in evidence by defendants, and that plaintiffs’ objections to its introduction should be sustained and the deed excluded. ■
“2. . The court further declares as a matter of law that since it appears from the evidence that both parties claim under Thomas Galloway, the court, for the purposes of this trial, will consider him to have had title to the premises in controversy; that if the court shall find from the evidence that Thomas Galloway left as his widow, Alsyria Galloway, and his heirs at law, W. T. Galloway, John Galloway, Mary Galloway (intermarried with J. O. Davis), Amanda Galloway (intermarried with W. P. Dowdee), and Nancy A. Galloway (intermarried with John H. Smith); that John Galloway died un*29 married and without issue, and that the said Mary Davis, the wife of J. O. Davis, had issue by him born alive and died, then under the evidence, plaintiffs are entitled to recover and the finding should be for them.”
To the giving, of which instructions defendants excepted at the time.
These instructions sufficiently show the theory upon which the court tried the case without considering the defendants’ instructions refused. There was a finding and judgment for plaintiffs from which defendants appeal.
I. Mrs. Galloway was not a competent witness to break down the deed from herself and husband to Holmes. Our statute removing the common-law disability of a witness on account of interest qualifies the enabling act by this proviso: “That in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown, to be insane, the other party to such contract or cause of action shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him.” The term “contract or cause of action in issue and on trial,” in that connection has been interpreted by this court to include a deed relied upon by one of the parties in an action of ejectment. [Chapman v. Dougherty, 87 Mo. 617; Messimer v. McCray, 113 Mo. 382.] In the deed'in dispute Mrs. Galloway was a party and the other party is dead. If that is a valid deed, she thereby sold to Holmes in 1860 the interest that she pretended to sell to the plaintiffs in 1894, and which they are claiming in this suit. She is called as a witness in behalf of her later grantees, who are living, to deny that she conveyed the interest to her former grantee who., is dead. If she was herself suing the heirs of Holmes for the land she would clearly not be a competent witness, and by the terms of the statute she is equally incompetent to testify in favor of any party to the action claiming under her.
The paper in question is what is denominated an ancient deed. Such a deed, because presumably all those who witnessed or participated in its execution are dead, draws the evidence of its authenticity from the conditions and circum
This document seems to have been covered by all of these requirements. It is dated March 21, 1860, and its appearance does not belie that date; this suit was instituted October 1891, therefore, it was over thirty years old. It was found in the possession of Thomas I. Davis, who had purchased the land from Bedford in 1888, and held possession of it until he sold it to the Sisslers. It is natural that Davis, having bought the land and being in possession of it and finding on the record no deed farther back than the sheriff’s deed conveying the title of the Ilohnes heirs to Bedford, should seek and find, if it was to be found, a deed from Galloway to Holmes and, therefore, the possession of the land by Davis was a fact consistent with its genuineness. The only signature on the document that under the circumstances seemed at all susceptible of proof, that of the subscribing witness Kennedy, was proven with as much certainty as could be expected. It was shown that Galloway could not write his own name, therefore, of course, he would have to have some one else write it for him, and such signature was not susceptible of proof. There was no actual proof that Holmes was ever in possession of the land, but he died in 1863, and the memory of no witness went back that far as to the possession. The learned counsel for the plaintiffs, in his brief, very aptly says: “This period of time embraced the war, by which the affairs of Stoddard county were very much disturbed and unsettled. No county in the State suffered more.” Galloway was present when the sheriff made public sale of the land" for partition between the heirs of Holmes, and when the purchaser afterwards inquired of him about the title he told him that he had sold it to Holmes, and a year afterwards went with the purchaser at that sale and pointed out the lines to him, to enable him to indicate to the timber men where they might cut timber. At that time and until his death, he lived within two
III. The second instruction given declares as a matter of law that since both parties claim under Thomas Galloway, if the court finds that certain parties named are the widow and children of Thomas Galloway, and that the wife of J. O. Davis had issue born alive and died, then the plaintiffs were entitled to recover. This instruction ignored not only defendants’
Whilst the plaintiffs’ evidence on the question of defendants’ possession may be said to be sufficient to make a conflict of evidence on that subject, yet the decided preponderance of evidence sustained the defendants’ claim to possession under the sheriff’s deed from 1872 with the interruption consequent on the change of tenants and the burning of the house and fence above mentioned, down to 1879 or 1880, when the house was rebuilt, and the testimony is almost undisputed that since 1880 the possession has been continuous. The instruction was erroneous.
IV. There is nothing in the plaintiffs’ case that commends it to the favorable consideration of this court; there is no substantial evidence upon which a finding in their favor could be based, and no good purpose can be served by a retrial. Therefore, the judgment of the circuit court is reversed.