169 Mo. 97 | Mo. | 1902
— Ejectment for fifty acres of land in Chariton county. The petition is in the usual form. The defendants are Minnie E. Eox and her husband, W. H. Eox. The answer of W. H. Eox is a general denial. The answer of Minnie E. Fox is a general denial, with a special plea that she is the owner, in fee simple, of the land, and that it is
The trial developed the following facts and proceedings: The plaintiffs offered in evidence a deed of trust, dated April 25, 1893, purporting to have been made by Minnie E. Fox and William II. Eox, her husband, parties of the first part, to Jl. 0. Grubs, trustee, party of the second part, and.Delia Eox, wife of James R. Eox, party of the third part, conveying the land to secure a note of even date, for seven hundred and seventy dollars, payable two years after date to the order of Delia Eox, wife of James R. Eox, signed Minnie E. Eox, William II. Eox. This deed of trust appears to have been regularly executed and acknowledged by Minnie E. Eox'and William H. Eox, on May 8, 1893, before Wm. Clark, a justice of the peace, in Chariton county, and was recorded in that county on May 10, 1893.
The defendants objected to the deed of trust on the ground “that it never was executed by these parties as it appears to have been by the certificate of the justice. Mrs. Eox never signed it and never appeared before the officer and never executed this deed at all.” The court overruled the objection, and the deed of trust was read in evidence.
The plaintiffs then offered in evidence a deed from the sheriff, acting as trustee under said deed of trust, dated No-, vember 30, 1895, to the plaintiffs, conveying the land to the plaintiffs, by virtue of the foreclosure of the deed of trust. The defendants objected to this deed because the deed of trust was a forgery and, therefore, it afforded no basis for the deed to rest upon. But the court permitted the deed to be read in evidence. The value of the rents and' profits and the damages having been agreed upon, the plaintiffs then rested.
The defendants then called Mrs. Minnie E. Eox as a witness, and it appearing from her testimony that Delia Eox,
The defendants also- called as a witness, William H. Fox. The plaintiffs likewise objected to his competency as a witness because the other party to the contract, Delia Fox, was dead, and also because the execution of the- deed of trust was not denied under oath or any issue tendered as to- the genuineness of the note and deed of trust. The co-urt overruled the objection and the plaintiffs excepted. 'Thereupon William H. Fox testified that he never signed, executed or acknowledged the deed of trust, and never heard of it until about t-wo years after its date, and that justice Clark never did any business whatever for him. That the signature of Rebecca Fox as a subscribing witness to the deed of trust, was not the signature of Rebecca Fox, who was his sister. The witness then made the following surprising statements, to-wit: that in April, 1893, his brother, James R. Fox, wanted to start in
This was all of the evidence offered by the defendants. The plaintiffs showed, in rebuttal,-i that James R. Fox purchased a stock of drugs from them for $770, and offered a note and deed of trust for that amount made by Minnie E. Fox and William IT. Fox, payable to Delia Fox, in payment thereof; that their attorney found defects or flaws in the deed of trust and that it was returned to James R. Fox for correction; that then this note and deed of trust was delivered to them by James R. Fox, and thereupon they let him have the drugs; that after the note fell due and was not paid, they went to see the defendants about it; thát Mrs. Minnie E. Fox, said they had expected to pay this note out of a check for $550 that they had, but that payment of that cheek had been stopped, so they could not pay this note; that William H. Fox said he could not pay this note then, and again asked plaintiffs to
man over there.” The record does not show who was meant by this remark.
Upon this evidence and showing the circuit court- entered judgment for the defendants and the plaintiffs appealed.
I.
The defendants offered evidence tending to show that the deed of trust upon which the plaintiff’s case is bottomed is a forgery, and was never signed, executed or acknowledged by the defendants. The plaintiffs objected to the evidence offered because no such issue was tendered or joined, and because to entitle the defendants to introduce such evidence it was incumbent tipon them to plead non est factum and to verify the plea. In support of their objection the plaintiffs rely upon seption 746, Revised Statutes 1899, which provides that when a suit is founded upon an instrument in writing charged to have been executed by the other party and not alleged to be lost or destroyed, “the execution of such instrument shall be adjudged confessed, unless the party charged to have executed the same deny the execution thereof, by answer or replication, verified by affidavit.”
• If this was an action on the note or deed of trust, that statute would apply, and to entitle the defendants to the evidence offered it would have been necessary for them to plead non est factum, and 'to verify the plea. But this is not an action upon the note or deed of trust, and therefore that statute does not apply. This is a suit in ejectment. The deed of trust lies in the plaintiff’s chain of title, but the suit is not
If the deed of trust upon which the plaintiffs’ right of possession rests, was a forgery, it was void, and, hence, the plaintiff never had a right.- of possession. The general denial puts in issue the plaintiff’s right of possession. Therefore, under a general denial, the defendant can show that a deed in the plaintiffs’ chain of title is a forgery, and thereby show that the plaintiff is not entitled to possession. The circuit
II.
The next question is whether the defendants were competent witnesses. The grantee, in the deed of trust claimed to be a forgery, is dead. The plaintiffs, therefore, objected to the grantors in that deed of trust being allowed to testify. Section 4652, Revised Statutes 1899, provides that no person shall be disqualified as a witness in any civil suit, by reason of his interest, and then adds: “Provided, 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 the court 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 fin favor of any party to the action claiming under him,” etc.
The original parties to the deed of trust in question were Minnie E. Eox and her husband, William H. Eox, grantors, H. O. Grubbs, trustee, and Delia Eox, cestui que trust. Delia Eox is dead. Hence, “one of the original parties to the contract” is dead, and, therefore, the other parties to the contract are incompetent as witnesses for any purpose whatever. [Angell v. Hester, 64 Mo. 142; Ring v. Jamison, 66 Mo. 424; Wood v. Matthews, 73 Mo. l. c. 482; Chapman v. Daugherty, 87 Mo. 617; Leeper v. Taylor, 111 Mo. 312; Teats v. Flanders, 118 Mo. 660; Curd v. Brown, 148 Mo. l. c. 95; Hach v. Rollins, 158 Mo. l. c. 190, 191; Baker v. Reed, 162 Mo. 341; Miller v. Slupsky, 158 Mo. 643.]
The circuit court, therefore, erred in allowing Minnie Eox and William H. Eox to testify at all, and this error is fatal to this judgment, for there is no other substantial evidence in the case to prove that the deed of trust, upon which the plaintiff’s case rests, is a forgery or otherwise insufficient 'to support the plaintiff’s right of possession. The only evi
It is a noticeable fact that, although both parties seem to ■concede that Eebecca Eox, whose name is subscribed to the deed of trust as an attesting witness, is alive she was not produced by either party to prove that she never witnessed the deed. James E. Eox, the husband of Delia Eox, does not appear to be dead. Yet he is not produced. Justice Shaughnessy who permitted William H. Eox to sign, execute and acknowledge the first defective deed of trust, for both himself •and his wife, Minnie E. Eox, is not called as a witness. Both of the parties evidently know more about who executed this deed of trust than appears from the abstract of the record before this court. Eor William H. Eox said if this deed of trust was enforced some good people would suffer, and 'the plaintiff, Patton, when asked who executed this deed of trust, answered: '“Well, you better ask that gentleman over there-.” The examination stopped there, so far as the abstracts show. But it 'is only reasonable to believe that the parties knew who- he referred to, and also that all the facts known to the parties litigant do not appear in the record before this court.
The judgment of the circuit court is reversed and the cause remanded for a new trial in conformity herewith.