132 Mo. 681 | Mo. | 1896
Mrs. Jane E. Smith, the widow of Otho M. Smith, sues to remove a cloud from her title to lot 8, in block 36, in Smith’s addition to the city of St. Joseph, Missouri. This lot is located on Tenth street in said city, and was the home of Otho M. Smith, now deceased, and his wife, now his widow, Jane E. Smith, for many years. It was known as the home, place. He died in 1883, and upon his death the plaintiff became owner of the said lot 8, in block 36, in Smith’s addition to the city of St. Joseph, Missouri.
There was a strip of ground twenty feet wide on the south side of lot 7 — next lot north of 8 — which Mrs. Smith was willing to give Tilomas M. Smith, a nephew of her deceased husband. It was worth' $2,000. The home place and the piece of property on Frederick ave
She executed a deed for this twenty feet to Thomas M. Smith on May 26, 1888, and, as the property was worth $2,000, the consideration expressed in the deed is that sum. A blank form of warranty deed was used on that occasion, and that twenty feet was described therein as follows: “A strip of ground in uniform width of twenty feet off the south side of lot 7, in block 36, Smith’s addition, an addition to the city of St. Joseph, Missouri.” This description left a blank space in said deed, and in that blank space there was written the following: “And also all of lot 8, in block 36, Smith’s addition, an addition to the city of St. Joseph, Missouri.” This home place, the property last above described, was worth about $12,000 at that time. This deed was not recorded until 5:35 p. m., September 24, 1888.
Plaintiff, after sundry demands on Thomas Smith, was unable to produce the original deed on trial. He gave various contradictory and unsatisfactory statements in accounting for its loss. In an affidavit filed for a continuance he claims his desk was broken open and the deed abstracted, but to plaintiff and her counsel he said it was destroyed and he could not find it. Mrs. Smith knew nothing of this forgery until March, 1892. During the interval from 1888 to 1892 she continued to exercise ownership over the lot, received the rent, paid the taxes, and paid for the repairs. When Thomas Smith collected the rent for her he signed the receipt as her agent, and turned the money over to her.
When she learned in March, 1892, that Thomas Smith had forged this deed, or rather so much thereof as included the home place, she at once confronted him. She said: “Tom, I understand you have mort
Mr. Conrad talked to him about the same time and asked him about signing Mrs. Smith’s name to promissory notes, and then asked him, “how he had gotten Mrs. Smith’s property in his possession,” and Smith said: “I don’t know.” Conrad says: “You ought to know — a child could know that.” Smith says: “I was pretty green in those days, and I didn’t know any better.”
Allen D. Yories, Esq., had a conversation with Tom Smith near the time of the exposure of his conduct, and says, “that Tom Smith then told him that he did not know how lot 8, in block 36, got into that deed; that it was never the intention of Mrs. Smith to put it in there; and he could not explain it in any way.”
Mrs. Smith’s evidence tended to show in the most satisfactory, clear, and cogent manner that she had signed and acknowledged the deed conveying only the tract twenty feet wide; that she never consented to have her home place included in the deed; that it was not in the deed when she executed and acknowledged it, and that Thomas Smith had repaid her generosity in giving him the tract twenty feet wide by fraudulently inserting a description of her home place also in the blank
The circuit court rendered a decree for plaintiff and defendant appeals. Two errors are assigned: First, that the court erred in refusing a continuance on account of the absence of Thomas Smith himself at the trial; and, second, because upon the whole evidence the decree should have gone for defendants.
I. There was no .error in refusing to delay the case on account of the absence of Smith. The application shows no diligence. The claim of sickness is exceedingly unsatisfactory. Living in the city of St. Joseph, where the trial was had, no effort was made to have any physician see him or certify to his illness or its character, and in his own affidavit he does not disclose his ailment. Moreover, Smith had lived in the city continuously since this suit was commenced and no effort was made by defendant to take his deposition, although he says he had been sick for three months. Outside of all this the affidavit itself is of such a character as would not have justified the court in longer delaying the case. The circuit court’s discretion in granting or refusing continuances will not be disturbed unless it is made apparent that it has been abused. We are strongly impressed with the opinion that Smith was unwilling to be present and meet the charge of forgery made, and sustained, by other witnesses in the case.
As to the merits of the case, the evidence was amply sufficient to support the decree and the judgment is affirmed.
