*1 232 SUPREME COURT OF MISSOURI,
Simpson v. Burnett. writing. If 2169, Section Revised Statutes com- monly ignored known as the Statute of Frauds, can be disregarded testimony and on such as that relied on in being this it be case, should abolished without benefit practical administration of the law. right respondent granting The trial court trial in both new the above cases. We accordingly re- proceedings. Higbee, mand the same for further con- G., curs. opinion foregoing
PER CURIAM: The of Raiiey, adopted opinion is as the All G., court. of the judges concur. Appellant.
JAMES P. v. S. D. BURNETT, SIMPSON Two, Division June 1923. Pleading: Deception:
1. FRAUD AND DECEIT: Reliance and Scienter. good petition damages alleged To constitute a have been plaintiff by alleged conveying forgery caused defendant's a deed brought partition the interest deceased into heir land purchased by necessary plaintiff, allege plaintiff it re forged deceived, on the lied and was and that because of deception injury. legal induced to said act to his In a action for fraud and deceit the scienter is a element provten. enough allege alleged de forged, forged fendant knew the deed was with the intent purchaser; to deceive the must also contain an al legation deceived, from which be inferred that by deception injury reason of such was induced to act to his reliance deed. Upon Forged Reliance Proof. -: Deed: In order recover damages deceit, alleged fraud his action for to have been forgery' owner, defendant’s of a deed caused from the who outstanding deeds,, unrecorded under claimed brought partition, heir in the land into of a deceased to which partition party, plaintiff,-who not made suit said owner was purchased at the sale the land and afterwards settled APRIL Simpson v. Burnett. owner, prove with such forged deed, must that he relied on said existence,
known genuine, thereby and was deceived injury. to his *2 -: 3. Evidence: Letters Addressed to Defendant: Notice to Pro- Copies duce: by Admissions. of letters addressed to defendant attorney plaintiff not are admissible evidence without no- produce. originals except tice to Nor are the admissible as ad- against interest, they missions and are not de- admissions where spoken fendant was not silent when should have and he did acquiesce not in the accusations therein. Transcript -: -: 4. of Probate Removal of Court: Defend- damages upon forgery ant as Administrator. In a suit the based grantee convey- of a deed to from defendant the a sheriff’s deed ing'the grantee, by prior a interest of deceased heir to said who a conveyed heir, unrecorded deed had to the wife of the tran- said script proceedings probate court, showing of the de- that fendant had been removed as administrator of of the estate said appointed administratrix, heir that had and his wife been is a tending prove in the chain of link facts that defendant knew legitimate that said wife had been declared to the wife said of tending knowledge and intent heir to show and said grantee previously conveyed had to her. damages -: -: Covenant Not Sue. a suit for based In defendant, forged on a deed to the de- the covenant of the wife of heir, prior by who claimed the a unrecorded deed from ceased by agreed, grantee, payment which she in view of to her of same a money claim, amount of not sue certain settlement of her a land, competent evidence, plaintiff for her interest is tending good part plaintiff. on faith the show of Damages. damages -: of -: Measure The measure of land, by purchaser by the of the sustained induced fraud of de- fendant, property the difference between the real value of is purchased it it had had at the time value would have representations made; subsequently false been not the evidence of competent. The value is not title to of increased three-fourths representations being good, being pur- property and the acquiring good remaining fourth, title to the chaser where- alleges his title to that fourth was based as he deed defendant, purchaser’s procured by damages measure of is the property the actual value of between difference at the time purchased deducted, and its value with the one-fourth exceeding by paid by the amount limited and not him in settle- necessary expenses with true owner and the ment defend- ing obtaining suit of owner and such title- SUPREME COURT OF MISSOURI,
7. -: -: Settlement With True Owner. a suit for dam- In ages by purchaser procured based a deed tending testimony alleged forgery, defendant which it is was a owner, to show that a true under settlement with the who claimed prior deeds, advisedly, unrecorded in fairness was made' purpose, purpose, competent. with an honest and offered for that n 8.-: defining Instruction: Malice. An instruction malice as doing wrongful just act, the intentional of a without cause or excuse, te’ling jury spite ill-will, personal hatred or legal malice, objectionable, is not to create where is not honesty his instruction has the issue submitted purpose procuring reasonableness of his excuse alleged forged. to be 9- -: Jury -: Unrecorded Deed: Issue. An unrecorded void, permit deed is not error decide grantor previously purchased whether in such deed had at subsequently sheriff’s sa’e an undivided interest in the land sold to at sale. *3 10. -: -: Comment on Evidence. An instruction should single give prominence a.particular out and undue fact. Even procured the person issue whether a certain deed was from the signed it, general whose name was instruction on the burden proof applicable. is Forged 11. -: -: -: Deed. An instruction which singles wilfully wrongfully forged out the fact that defendant issue, evidence, in the deed is an undue comment on the as is telling jury they one likewise the that “if believe defendant know- ingly secured said deed.” telling 12. -: -: Unrecorded Deed: Notice. An instruction grantee the the that if record owner failed to record deed, purchaser partition her at sale was without no- good title, tice of such unrecorded deed and took a should not be given, parties partition when the in suit had actual notice of outstanding title. Appeal from Jackson Circuit Court.—Eon. Willard P. Judge.
Eall, Reversed and remanded. Dryden, Bums &
L. T. Burrus Gossett, Ellis, appellant. Tyler for & Dietrich 1923. Simpson v. Burnett. alleged respondent place any
(1)
in
At no
is
upon
purchasing
alleged
the land
in
relied
manner
¿hat
allegation
There is no
he
or false deed.
would
price
bought
paid
even
the land
at the
for it,
not have
alleged
regardless
acts
the defendant.
It
respondent
allege
upon
relied
allegation
Boyles
There
no
that Bertina H.
such deed.
any
acquired
owned
ever
or
fact
allegation
pur-
any
A.
nor
there
James
Harlin,
alleged forged
ported grantor in
or
false
ever
any
land.
interest in the
For
fact owned
these
omis-
was insufficient
state a cause of ac-
sions,
Remmers,
557;
217 Mo.
tion.
Morrow
IJemmers
(2)
Mo.
sec.
563;
36,
'27 C. J.
Franklin,
appellant’s
refusing
to sustain
court
demurrer
erred
plaintiff’s
at the
the evidence
close of
case,
and like-
give
refusing
peremptory
wise
instruction
erred
requested by
in the nature of demurrer to
evidence
appellant at the close of the entire
case,
the reason
testimony
no
other
that there was
evidence that re-
or
spondent purchased
at
sale of
the land
alleged forged
reliance
false deed. Secs.
(3)
R.
S.
Error was
committed in ad-
mitting
respondent’s
either of the three letters from
at-
hearsay
containing
Mr.
torney, Williams,
and statements
condemnatory
accusatory
making-
of defendant, hearsay
They
of him.
mere
demands
were
and self-serv-
strongly prejudicial
ing
appellant.
statements and
(4)
prejudicial
and material error
to admit the
*4
probate
transcript
proceedings
by
in the
of
court
Bertina
Boyles
resulting
appel-
H.
in
to remove and
removal of
Boyles,
lant as administrator of the estate of Bloomer C.
Boyles
that
The fact
she
the widow of Bloomer
was
C.
appellant
supposed
one time
or
at
even con-
tended that she was not
widow,
such
was not an
in
issue
(5) Prejudicial
the case
bar.
at
error was committed
by
appellant’s objection
admitting over
the instruments
respondent
Boyles,
of settlement between
and Mrs.
called
MISSOURI,
OF
COURT
236
y.
hearsay
prej-
It contains
not to sue.”
“covenant
complicity
amounting
charge of
to a
udicial statements
(6)
plain-
appellant
others.
If
wrong-doing
with
in
damage,
far
so
of action,
a cause
tiff’s
stated
when he
occurred
involved,
land
of the
as the value
February
bought
7, 1916;
sale
at the
price
respect
governed
damages
should be
in that
paid,
therefore,
land.
was,
of the
the then value
It
appellant’s objection
admit over
error for the court to
largely
plaintiff’s
increased
as to the
value
evidence
January,
in
of breach
cases
of the land
of
So
App.
warranty:
Hazlett
422;
v.
92 Mo.
Gratz,
of
Leet
Similarly in
Simpson, Burnett.
App.
Harrington, 20Mo.
Manheimer v.
have been effected.
*6
Sawyer v.
Massey
Young,
273;
Mo. 260,
73
v.
297;
App. 402.
Mo.
184
v. Ins.
103;
Co.,
204Mo.
Jones
Walker,
party
(5)
an
which contains
offers
instruction
Where a
complain
another
it is refused,
vice,
a
given.
containing
Hard-
a similar vice was
instruction
ing
(6)
Ry.
docu-
DAVIS, C. This action fraud, brought Jackson-County Court of Circuit judgment wherein term, 1920, June recovered against compensatory $4,976.25 and $5,000 damages. punitive The for a trial motions new and in ar- defendant, judgment being appeals. rest of overruled, petition alleges substance: That on or about plaintiff purchased February 7, 1916, a certain farm County. That on November 10, 1917, Andrew H. Bertina Boyles against plaintiff praying filed suit that he be of an undivided one-fourth divested said strong legal and offered evidence of her That demand.
Simpson v. Burnett. pur- proof that Boyles offered incontestible Bertina ported Harlin, from A. James of October deed Boyles, deceased, of Martin D. named heirs to certain forgery. That defendant plaintiff’s was a title, claim procured of and caused execution suppressing a valid unrecorded while recorded, Boyles, coming H. to defendant’s to Bertina Harlin from possession acting tort of son while administrator de plain- as direct result, Bertina’s estate, husband’s compromise compelled January was, 16, 1919, tiff stop one- and the loss of a Bertina costs and settle with ex- farm. That the itemized in said fourth interest procuring penditures That the $2,976.75. amounted a wil- fraudulent deed defendant was false and said gross malicious act and a intentional and ful, fraud, *7 plaintiff employed lawyers in- direct result and as a expending above fur- amount, curred and was costs, prosecuting litigation, damaged causing in him ther worry, in vexation and mental distress sum of $2,000. Prayer puni- judgment for $5,000 and for $4,976.75 damages. tive general demurrer,
Defendant filed a and on the court overruling general filed went trial on denial. it, a appears Boyles, from the Martin D. record that one County in 1891, who died devised the Andrew March, July wife, 19, who died with 1915, life, land his his remainder five one of E. children, whom, Cora was the wife In Burnett, of defendant. November, 1893, Boyles, George M. was son, interest his sold acquired his and sisters. son, four brothers Another formerly the'legitimate Boyles, O. Bloomer husband Bertina, later but at his death in divorced, March, probate her common-law court husband, as found, judgment In 1908, left no descendants. under a Boyles of Bloomer execution, the interest land C. said Harlin for $200, was sold James A. for which he re- acknowledged open' a sheriff’s ceived but court, never recorded. MISSOURI, OP COURT appointed February, adminis was
In Boyles’s estate, removed, but later trator of was Bloomer Bertina-appointed administratrix, for that she County, In November, 1915, Andrew Wil Ms widow. brought Boyles all suit to the land, liam C. parties being except possible made said Har defendants, petition alleged lin Bertina. that Bloomer and said Boyles leaving no no intestate, C. died descendants and widow. county records showed Harlin’s
As defendant was that in advised order to make good by partition, title have said being Harlin on execute a deed. Defendant testified, so inquiry, made directed to man advised, quit- Harlin who claimed to be and from him obtained procuring claim facts deed. The relative quit-claim attorney are: Defendant was told where Harlin could found. He went to address lady there told him that he would Harlin find aat thought, saloon West Twelfth Going she on Street, or 218. finding standing into the saloon and a man there, him if he A. asked knew Harlin. James He said he did. sir, Defendant said: I “Well, like to him would see replied: you man business.” The do “What want with him?” Said defendant: told “I I him wanted to regard see him some real estate.” “Oh,” said County “that Andrew land?” man, Defendant said: it.” He “Yes, that’s told me he was the man. Defend- *8 ant quit-claim asked him he what take would a to make County deed to that Andrew land. He said De- $100. any fendant asked him if he would make it for less and he said not. would So the defendant informed Mr. (attorney partition Williams for suit) in the that he had found the man, and the deed could be secured for buy Mr. Upon $100. Williams told him to it. a tele- phone conversation, defendant went Washington saw the procured Hotel, man, made deal a with him and quit-claim up by deed, which was drawn a Mr. Wade. 1923.
Simpson v. Burnett. Building. The the Schuhert The man met gone hours, quit-claim two took the was about man money gave for again met him the him, when defendant inspection gave later and Mr. Wade for and it to the deed The at Savannah. to Mr. Williams the delivered deed in evidence. Defendant denied introduced deed was signed A Harlin to of James the deed. name plaintiff. partitioned sold to property was and paid reimburse for and to was services quit-claim Defendant $372.65 paid money for The de- deed. for the him proceeds provided sale be divided that the cree George each to and to Wil- one-sixteenth five-sixteenths Boyles. and of Martin C. Anna,, devisees liam, Cora parti- purchased land at the and wife Plaintiff $9,720. 19, November tion His wife died sale ejectment February Bertina filed suit 1916, 7, On claiming and undivided one-fourth sought damages. quiet and title, A count to second alleged from Harlin the de- set aside deed to trial fendants suit. There agree. failed Plaintiff then settled that case to January by paying her on $2,252.30. with Bertina 15,1920, writing, by a The settlement evidenced which agreed sue, Bertina covenanted not to to dismiss her suit, get quit-claim to Harlin to which herself, deed from January she did May,
Bertina Harlin testified deeded placed property. her She that with sheriff’s sewing in her machine drawer, Harlin re- where it gave December, mained until 1911. She these deeds going who husband, her Bloomer, Savannah, She recorded. never saw deed from Harlin her this probate but once afterward then in at court Kan- City possession October, 1919, sas of defendant attorney, and his Mr. Madison. theOn sheriff’s deed Harlin, the deed from Harlin to neither of her, which were ever she recorded, based her claim land Simpson. and sued Mo.—16. *9 MISSOURI, OF COURT
Simpson Burnett. May notary public, Curp, that on Daisy testified a E. signature acknowledged to a Mr. Harlin’s 12, she 1909, notary’s by and quit-claim record, her deed, as shown vague it. recollection that had also a she bought one-fourth that he A. testified James ITarlin County at execution sale in the Andrew interest therefor sheriff’s deed and the June received 1908, 18, envelope by produced stated which he an mail. He signed by quit-claim, Later, mailed. sheriff’s deed was conveyed to acknowledged, land $250, he conveyed January by Boyles. Bertina On quit-claim, deed, the former lieu of second stated Boyles. that He denied the same signed Bertina land quit-claim by obtained of October 18,1915, signature. his or that it was defendant, important will be forth- deem Such other facts we coming later. complains
I. the action trial Defendant adversely ruling petition court in on his demurrer says judgment. arrest He there motion allegation petition plaintiff that no Fraud, alleged forged on the that Pleading, deed, relied or Deceit: acquired any Bertina Ha-rlin or owned land. petition for fraud. This action al While leges that the deed of October from Harlin to 18, 1915, Boyles, forged pro directly of Martin heirs by procuring cured defendant, his act in it gross wilful, intentional, malicious and fraud, fails by state the deed was known that, forged, procured it was with the him intention of deceiving proposed purchaser at the sale, plaintiff, thereby to-wit, that he was deceived and that his reliance was induced injury. to act [Remmers v. Remmers, 217 Mo. l. c. 557.] While there be sufficient in charge knowledge defendant with the -deed was* forged, purchaser, with intent deceive it contains *10 plaintiff may infer that we allegation which from no deception induced of the was virtue deceived was forged injury by deed. As reliance on the to his to act 563: c. 289 Mo. l. Franklin, in said Morrow was pleaded and necessary to be element is an “Scienter legal deceit.” with for fraud and So proven in actions plaintiff deceived or deception was not reliance. If forged may verity rely he not deed, the on not did subject may deem it for the voidable, recover. Fraud ratify discovery, advantage, or consum to after to his allegation plaintiff the that was the transaction. As mate forged on the deed were omit that he relied deceived and p. petition 36.] J. [27 is insufficient. C. ted, the ought definitely state the that think We show- land, the one-fourth interest owned Bertina acquirement ing circumstances from of the facts Harlin. says plain there evidence that
II. is no Defendant partition purchase sale, of the land at relied tiff, alleged forged deed; and that ^ie unrecorded from the deed sheriff on^orged^Deed.
Harlin from Harlin to could Bertina, against plaintiff. no title have constituted say Answering it first, contention suffices last partition plaintiff suit, and defendants that though including even un- herein, the deed was Harlin, actual that the title recorded, had notice attempted straighten believing the chain of title so alleged forged. procuring from him, a deed be diligently have searched record We find some purchasing tending plain- proof that, show genuine. alleged forged relied on the deed He tiff tified that he tes- had no with conversation defendant about bought title of the land it. before record any that he barren inference discussed the title with any person any inquiry, that whatsoever, he made alleged forged that he title or the saw abstract of upon it. or that he relied He testified he was not COURT OF MISSOURI.
Simpson v. Burnett. proceedings. coun- Plaintiff’s interested de- talk to did state in their sel, brief, purchase, prior make nor did defendant fendant any procuring representations than other any Plaintiff relation between the two. nor there about hundred acres was worth the one testified paid If Bertina’s $9,720 that he same. $20,000, and any, worth settlement, if at the time interest, purchase price with which, $9,720, $5,000, about even under these cir- $14,720, that, would total bargain $20,000 farm cumstances, considered retaining property, and took chances the whole *11 suspect though grounds forged. to even he had deed the no hold there is evidence the record show that We to plaintiff upon forged purchasing relied the deed at the upon retrial of sale. the cause, that produce consisting he can evidence or cir- of some fact tending cumstance to show reliance the on deed. III. 'in Plaintiff offered evidence three from letters attorney plaintiff
Mr. Williams, to deden January dant, U16, 21,1920, which defend MustTe1 objected incompetent, to ant. as irrelevant and Proved. hearsay. not immaterial, the best evidence and purport of the above letter is that the Harlin procured deed defendant that he fraudulent, took a deed from man who was not owner the of the ought and that defendant to be able to him. find That ought, defendant’s wife and the other heirs in fair deal- ings, pay money plaintiff back the received from quarter formerly the Boyles; owned Bloomer produce that Bertina had and could Harlin, and that folly go on Simpson with the case; that bought good relying quit-claim faith, this and the abstract. Defendant answered the first letter, stating power he had done inall his to find Harlin and he willing had been to take Harlin’s deed himself. Defend- reply ant’s to the second letter was that Williams seems forgotten to have only acting agent defendant was as y. Boyles Wil- and that heirs, Martin Williams them, had him defendant before as all the facts liams had property from urged buy heirs, for the him to nothing got nominal but a defendant sale which did letter property. third buying Williams’s sum for correspondence. contemplate reply and closed objection best not the were that the letters Defendant’s copies plaintiff; introduced taken, well evidence, was plaintiff of- produce. had However, notice to without gone only originals, they have could fered the theory against not think do interest. We of admissions spoken have he should that defendant silent when "was acquiesced therein, accusations replies p. 326.] [22 C. J. were, in effect, denials. objected tran-
IY. Defendant admission (compris- proceedings probate script of court ing judgment of court, show- and order and Boyles, ing that H. Bertina Bloomer widow removing as administrator Bertina), appointing not an because, ?ro£ateiPcourt. issue. The above facts were links in the prove tending plaintiff’s de- chain of evidence, had been fendant that Bertina declared Bloomer’s knew least, that extent at intent widow, tended show *12 knowledge. (a) do not Y. think admission of cove- We purpose good not error. Its sue, nant show paid faith of settlement and the amount compromise by plaintiff. However, NotTo^sue rightfully portions. court certain excluded (b) objected Defendant to the introduction quit-claim deed from Harlin and wife to Bertina, because hearsay, self-serving liability, and after defendant’s if any, arose. deed is This called in the covenant good sue, and tends show faith in the settlement. The ‘‘ ‘‘ ’’ paragraph beginning, ending, This deed, and Gran- ’’ tee herein, should be excluded. COURT OF MISSOURI, y. says damages VI. Defendant that the governed by price paid should be or the then value of the land. We think the court should have excluded evi $12,000 deuce of the increased value of the land and of the mortgage, tending as not at to show the value of the land plaintiff purchased the time it. The Measure of Damages. damages by pir measure of chaser, sustained by according fraud, induced to the weight. authority, the difference between the real property purchased value of the and the value whieh it representations would have had had the been true. The theory party is that the defrauded is entitled to the bargain. p. 92; [27 benefit of his Ryus, C. J. Kendrick v. 157; Ryan Miller, 225 Mo. l. c. 236 Mo. 508; Thompson Lyons, 430.] l. c. 281 Mo. The representation good property. was the title to the Plain damages tiff's measure of is the difference between the property purchase actual value of the at the time of property the value of the with the one-fourth interest out, exceeding paid taken limited and not the amount necessary expenditures in settlement and the ing in defend obtaining the suit and title. complains VII. Defendant there was no evi~ traveling expenses
dence of the reasonable value of the traveling expenses and court costs. The were Expenses items, but, so, small e~en there must be Court Costs. some evidence of reasonable value. There paid by plain~ also must be evidence that the court costs charged Being tiff were those regulated by statute, and fixed the court. they bharges. are fixed objected testimony VIII. Defendant of wit- pages seq. ness Booher found at 79 to 87 et of the a1~- generally thirty stract. Defendant has referred us to printed pages pointing specifically without out his ob- jections. testimony purpose was introduced for the *13 VdL showing compromise with Bertina
Unspecifie~t advisedly, was made ut fairness and with an Objections. purpose. generally honest This evidence was opinion by specifi- admissible. We.cannot encumber the cally discussing objection, each a retrial questions may 1-lowever, testimony same not arise. showing right should be limited to title and the of re- covery Bertina, advisability in and the of the settlement.
IX. The court should have excluded the relation Chapman argument pro- witness of his ceodings, probate conrt, to remove de- Argument admission, fondant. It was not an for de- Another Case. be, expected reply. fendant~ could not Further, witness testified he had never seen the deed therein referred to. (1) nothing point X. We see in defendant's testimony
the court should have excluded the of Mrs. Boyles that she received the deed for this land from May. 13, James A. Marlin about
(2) permitting The court did not commit error Boyles testify Mrs. proceedings that she had state'd in the `removal probate
in the court this statement to de- my My fendant: "This is deed. name has been erased put and Bloomer's name has been on it." This deed is right an issue in the case. She based her same. The erasure of her name and the insertion of to recover on Blorners, knowledge, with defendant's was evidence of his later fraudulent intent.
(3) permitting The court committed error wit- testify that, attorney Simpson, ness Booher to out-figured Boyles attorney, believed, Mrs. `s and that he settlement, $5,000 he saived his client between $6,000.
(4) It was not error for the court to refuse to al- testify `ow defendant that he took out letters of ad- request ministration on the estate of Bloomer at the object his mother. 1-us was not material or relevant. *14 248 MISSOURI, COURT OF v. ought
(5) attorney to have couched Plaintiff’s say going question differently saying, “I am not heat of In Harlin.” it was not Harlin, because attorneys lose themselves. may sometimes trial, however, plaintiff's XI. Defendant's criticism of Instruction 4 is not tenable. The instruction defines malice as the doing wrongful act, just intentional of a without cause or excuse, jury ill-will, and tells the hatred or IDersonal spite legal is not to create malice. De- MaJice. honesty pur- fendant submitted the issue of pose jury and reasonableness of excuse to the in his in- given by structions the court. - XII. Defendant's criticism of the court's Instruc- jury say tion 1 is that the court left it to the whether purch~sed quarter James A. Harlin had an undivided question in the land. Defendant thinks this ought court, to have been left to the aiid ~ruryQuestion. contends that the unrecorded sheriff's deed right permitting jury was void. The court was question, to determine the plain but defendant not com- for, right, of such action if his contention is plaintiff's added an unwarranted burden to cause. We authori~y saying know of no that an unrecorded sheriff's may say, however, deed is void. We the instruction require should to find that relied deed. XIII. We think that the court's Instruction 2 was basing recovery error in on the value of the land at the compromise time of the and settlement. It Measure Damages. should have been based on the actual value of purchase. the land at the time of What we damages ap- have heretofore said on the measure of plicable here. singles partic-
XIV. The court's Instruction 3 out a ular fact. This instruction was an unwarranted com- evidence, giving prominence ment on the undue to a sin- TERM, 1923.
Kaemmerer v. Wells. gle plain- to-wit, burden on the that the fact ^ Comment procured prove from the deed was tiff to general instruction on a burden Harlin. A the true applicable. proof 288 Mo. [Burton Holman, would Railway, l. 64.] Mo. c. ;70 Jones Instruction 11 should not NY. Defendant’s refused subject given. criticism as have same been singled for it the fact the court’s Instruction out *15 wilfully jury must belieim that defendant that the (cid:127)wrongfully said deed. Defendant’s Instruction telling jury if it believes that know ingly secured said set out in Instruction isCl, subject it that criticism,
also for that single prominence undue fact. 8’ives neel°°Notice Instruction 13 error and Defendant’s given. should not have been if tells the It. that, Bertina failed to record deed received from Plarlin, then the without notice such unrecorded good deed and had title. This instruction does not con parties form facts, suit had outstanding actual notice title. pointed
For the errors heretofore out, we reverse and remand the cause to be tried with accordance expressed. views herein Railey so It is ordered. Higbee, GG., concur. opinion foregoing
PER CURIAM: The of Davis, hereby adopted opinion C., as the of the court. All of' judges concur; E. Blair, David P. J., the result. MATHEW KAEMMERER ROLLA WELLS, Receiv- Railways Company, Appellant.
er of United Two, Division June
1. PRACTICE: Demurrer to Evidence: Waiver. Plaintiff’s Defendant right its to insist error its de waives to overrule1