73 Mo. 538 | Mo. | 1881
This was an action of ejectment for 360 acres of land, consisting of four distinct but adjoining parts, or legal subdivisions of section 30, 67,13, in Schuyler county,
The answer contained, first, a specific denial of the allegations of the petition ; and then set up five distinct grounds of defense, in substance as follows : 1st, The statute of limitations — claiming that the defendant had been in the peaceable, open, notorious, adverse possession, of all of said lands, under valid claim of right and color of title for more than ten years before the suit was brought. 2nd, That defendant had lived upon and occupied said lands for about twenty-five years; that about seventeen years ago he sold and conveyed said lands to his son, Elisha Israel, for the sum of $4,000, and took from him his promissory note to secure the payment of the purchase money; but that said Elisha died without ever paying said purchase money, or any part thereof, or making any provision or leaving any property out of which the same could be made; and that said purchase money still remained due and unpaid ; and that he had never delivered to said Elisha the possession of said property, but had always retained the possession thereof himself. 3rd, That the plaintiff’s only title is derived from an administrator’s sale, made by James Raley, administrator of the estate of John P. Israel, deceased, for the payment of debts; that said John P. Israel was a brother of said Elisha Israel, and a son of defendant, and never made any claim to said premises, although he survived his brother Elisha more than fourteen years, and well knew all that time, that the defendant was in the adverse possession of said premises, claiming title thereto against all the world; and that the said John, through whom the plaintiff claims, as aforesaid, never set up any claim to said premises, as heir, devisee or legatee of said Elisha, against this defendant. 4th, That the plaintiff, at the time of his said purchase at said administrator’s sale, well knew that the said John P. Israel, in his lifetime, had no title to said lands, as the heir of said Elisha, and that the defendant was in the possession of said real estate,
To this answer there was a reply denying all its allegations, and also setting up that the defendant, in 1860, being insolvent, conveyed said lands to his son Elisha for the purpose of defrauding his creditors, and that said Elisha paid him, in full, at the time; and that the indebtedness of said defendant still remains due and unpaid ; and that said Elisha paid for said lands by executing his promissory note for the sum of $4,000 to one-Israel, by the-direction of the defendant. Such were the pleadings in the cause.
The record shows that the defendant, in February, 1860, by general warranty deed, sold and conveyed the lands in question to his son, Elisha Israel, for the consideration of $4,000, the receipt of which was acknowledged on the face of the deed. This deed was duly acknowledged and recorded. It also appeared that said Elisha Israel died at his father’s house in 1861, intestate and without issue, leaving as his only heirs at law his father, the defendant, his three brothers, one of whom was John P. Israel, and one sister. The evidence conduced to show
It also appears that the said John P. Israel, the brother of Elisha, went to California in 1859, and remained there until 1875, when he returned to his father’s house, in Missouri, and died the same year, intestate. The record further shows that upon the death of said John P. Israel, James Raley was appointed administrator of his estate, and, by order of the probate court of Schuyler county, Missouri, proceeded to advertise and sell the lands in question as the property of the said John P. Israel, deceased, for the payment of his debts, and that at said sale the plaintiff became the purchaser thereof, and received from said administrator a deed therefor, in the usual form and containing the usual recitations proper and common in administrator’s deeds, for the payment of debts, dated November 26th, 1876.
The record further shows that in 1860, the date of defendant’s deed to said Elisha, for said lands, there was about 100 acres of said land improved and fenced; but the evidence did not show which of the several tracts of land, embraced in said deed and sued for in this action, was covered by or embraced in said improvement and fencing; nor did the testimony otherwise locate said improvements or identify the lands so fenced. The remainder of said lands, at the date of said deed, was uninclosed and so remained until
It further appeared by said record that the defendant, for some years prior to and at the date of his said deed to Elisha, had been and was living upon and occupying said lands; and that he continued so to do from and after the date of said deed, up to the time of the trial of this cause in 1877. The record further shows that sometime in-187all the heirs of Elisha Israel, except John P. Israel, executed to the defendant, at his request, a quit-claim deed for said lands; and that, prior to that, the defendant had commenced a suit against all the heirs of Elisha, alleging as ground therefor, that he had deeded the lands to Elisha in 1860 for $4,000 — none of which had ever been paid— that he never surrendered the possession of said lands to Elisha, andthat Elisha died in 1861 withoutpaying for them, or making any provision therefor, which suit was afterward dismissed by defendant at his cost. The cause was tried before a jury.
At the trial, the defendant, against the objection of the plaintiff, offered himself as a witness in his own behalf, and was permitted by the court to testify generally in the cause. His testimony conduced to show that at the date of his deed to Elisha for said lands, Elisha executed to him his promissory note for the purchase money ($4,000) due and .payable as hereinbefore stated; that shortly thereafter, to-wit: sometime in 1861, the defendant and Elisha, by verbal contract attempted to cancel said deed and rescind said sale. This testimony tended to show that both the defendant and said Elisha agreed to said attempted cancellation and rescission, and that both of them thereupon and thereafter considered and treated said deed as canceled; that said attempted cancellation and rescission was brought about at the instance and by the request of the said Elisha Israel, who said he could not and would not pay for the
The defendant then offered Mary Ann Jarvis, his daughter, as a witness in his behalf, whose testimony, though brief, tended, to some extent, to support that of her father.
On the other hand, the record shows that the plaintiff, in rebuttal, proved by Henry Buford, a justice of the peace, that Elisha Israel, some week or so after the date of defendant’s said deed to him for the land, brought said deed to his house and wanted to deed said land to his sister, Mary Ann, who was then unmarried, but that he, the witness, advised him not to do so; that he then proposed to make a deed to his step-mother, the defendant’s wife, but he was advised by witness not to make such a deed, as it would show fraud on its face; that said Elisha then went away leaving the deed at his house, where it remained until about six months ago, when he left it with the probate judge for safe keeping. Plaintiff, in rebuttal, proved by MeVey, that he, McVey, had a talk with the defendant about this matter about a year ago, and that defendant told him that Elisha was to pay him $4,000 for the land, and that the note then amounted to about $8,000.
The plaintiff then offered to prove by this witness that
As will be seen, a number of questions arise on this record. The answer contains five or six grounds of defense, some of them legal, others equitable, and all of them, except the first, containing new matter, which is put in issue by the reply. The instructions given by the court — two of them at the instance of the plaintiff, and four upon its own motion — all bear upon the question of the statute of limitations, which seems to have been made the controlling question of the case in the argument to the jury. They present the law on that question, applicable to the facts in evidence, we think, correctly. The answer contains other counts, and there was evidence tending to prove some of them, (for example, that of vendor in possession, with purchase money unpaid,) but no instructions were asked in reference to them, unless it be the third instruction asked by the plaintiff and refused. The subject of that instruction, as well as that of the eighth, which was also refused, will be noticed in the progress of this opinion.
But the controlling questions for our consideration, upon which this case must turn, grow out of the rulings of the court upon the question of the competency of the defendant as a witness in the cause, and the exclusion and admission of evidence in the progress of the trial. The appellant insists that, inasmuch as his title is derived from the deed made by the defendant to his son, Elisha; and inasmuch as the defendant also claims under, but adverse, to the title so conferred;. and as Elisha is shown to be dead, the defendant is, therefore, incompetent as a witness to testify to any fact in the cause. Secondly, That the de
It may be remarked, in the first place, that the competency of a party, as a witness in the cause, may often depend, in a great measure, upon the nature of the pleadings in the cause. Where there are severa} counts in a petition or answer, it may also very well happen that a party may be competent as to one and incompetent as to the others. If the defendant, in his answer, in this case, had contented himself with a simple denial, either general or specific, the position con
We think the court also erred in not allowing the plaintiff to prove, by way of rebuttal, that the defendant 2. evidence: fraud, was insolvent, and made the deed in question to defraud his creditors. In this case it became material to know whether the possession of the defendant after the date of the deed to Elisha had been .converted from a friendly to a hostile possession, and any facts tending, to explain or throw light on this point were properly admissible for that purpose. If it be true, as charged, that the defendant was insolvent, and that he made said deed to defraud his creditors, it is not likely that he would shortly thereafter, and while his insolvency so continued and his creditors remained unpaid, turn around and openly claim and assert title in himself. At least, such facts were competent to go to the jury for their consideration.
If the facts testified to by the defendant, in reference
As to the sufficiency and efficacy of the proof of possession, in this case, if it could be held to have been without color of title, we understand the law to be , . , . , , , that the proof must be sufficiently definite and certain to locate and identify in some way the lands so possessed, with such metes and bounds as can be ascertained and recognized. Otherwise the proof would be void for uncertainty. Where there is no color of title, the party so claiming is limited to his actual inelpsure.
As tp the third instruction asked by plaintiff and refused, it is sufficient to say, that while said note for the purchase money of said land was made payable> on its face, to Jane Israel, the daughter of defendant, yet the evidence tended to show that it never had been delivered to her, but had always been and remained in the possession of the defendant. She was a mere volunteer without possession. The consideration moved from him, and he retained the possession. Such a note, thus given and held, did not operate as a payment of the purchase money. The instruction, therefore, was properly refused.
Whether the plaintiff, who holds by an administrator’s deed, is to be treated as a bona fide purchaser for value, within the meaning of that term, or whether he takes subject to all the equities of the party in possession, whatever they may be,-and whether he had any actual notice thereof or not, is a question we do not feel called on to decide, in the present state of the record, and, therefore, express no opinion on that point. Mann v. Best, 62 Mo. 491, 496; Jones v. Carter, 56 Mo. 403; Vaughn v. Tracy, 22 Mo. 417; Vaughn v. Tracy, 25 Mo. 320. But, for the reasons heretofore given the judgment is reversed and the cause remanded.