Sutter v. Lackmann

39 Mo. 91 | Mo. | 1866

Fagg, Judge,

delivered the opinion of the court.

Instead of considering the points in the order in which they stand in the argument of the case, it is proper first to dispose of the objection made by the counsel for the respondents, viz., that the action of ejectment cannot be maintained by an administrator. The case of Aubuchon v. Long, 23 Mo. 99, is cited as a case directly in point. That was an action commenced by an executrix for an alleged trespass upon the land of her testator committed after his death, and the court held that it could not be maintained, because “the real estate of a deceased person descends upon his death to his heirs, or passes to his devisees under his will.” The property involved in this controversy was simply a leasehold estate limited to ten years, and which had actually expired before the substitution of the party plaintiff.

Being a lease for ten years, we think it should be treated as a mere chattel interest, which of course goes to the administrator upon the death of his intestate and not to the heirs, and therefore the suit was properly revived in the name of the personal representative. This case has been twice before this court by appeal, and the principal points disposed of as stated in the opinion delivered by Judge Scott. The real question left to be determined by the court below at the last trial was whether the property had been purchased at the trustee’s sale by Gutzweiler with means furnished by by Schulze. The only object of the present investigation, then, is to ascertain whether or not this question was fairly presented to the jury in the admission of testimony and in the declarations of the law as given by the court.

The first point of objection on the part of the appellant is that the court erred in the admission of testimony to show that there had been a fraudulent transaction between Schulze and Manck, who -were partners in a jewelry store in the city of St. Louis, in the execution of a bill of sale for their stock of goods to Gutzweiler in the year 1851. Two witnesses, Henry Manck and Thomas J. Meier (the first being the former partner of Schulze, and the other the trustee who made the sale of the property at which Gutzweiler became the purchaser), were called by the respondents and permitted to detail with great minuteness all the facts and circumstances connected with that transaction. It was testimony tending to prove the bad faith of these parties in a matter wholly disconnected (as far as the record shows) from the real question at issue, and must be treated as erroneous.

It is admitted that a very large latitude must be given in the investigation of fraud, and it is difficult to lay down any general rule to govern, in such cases. It may be sufficient for the purposes of this case to say, that, unless some connection was established by the testimony between the conveyance of the stock of jewelry to Gutzweiler (admitting it to have been fraudulent as to creditors) and the purchase of the property at the trustee’s sale, it was improper for it to have gone to the jury. Here were two transactions between the same parties, with a period of two years intervening, and not in reference to matters which were connected in any manner. The first being proved to be fraudulent, is not a fact from which a jury .would be at liberty to infer that the other was fraudulent also. This testimony should therefore have been excluded.

The next point of objection made by the appellant is as to the admission of the testimony of C. B. Lord in reference to a conversation between the witness and Schulze after the sale, and at which G-utzweiler, the purchaser, is not shown to have been present. Any admissions that may have been made by Schulze in reference to the sale of the property ought not to be permitted to affect Gutzweiler, unless it be shown affirmatively that they were assented to him, or made in his presence, without objection on his part. This general 'remark upon the testimony will be sufficient without stating particularly the objections which are so manifest as to suggest themselves at once upon a rehearing of this cause. A few remarks upon the instructions given and refused by the court will complete all that is necessary to be said according to our views of the case. ‘ »

The second instruction asked by the plaintiff and refused by the court assumes the fact that the deed to Gutzweiler was regular on its face, and that the onus rested on the defendants, who had attacked it as fraudulent upon the ground that the purchase money, or a part thereof, had been furnished by Schulze.

This instruction ought not to have been refused. There seems to have been no question as to the execution of tire deed. There was no pretence that it was not regular upon its face, and it certainly devolved upon' the defendants, in the trial of the issue then submitted to the jury, to prove to their satisfaction the affirmative. The first instruction asked and given on the part of the defendants stated the issues correctly, but was silent as to the question of the regularity of the deed as well as to the burden of proof; and whilst therefore it is not of itself objectionable, still the giving of it cannot be said to have superseded the necessity of giving the second instruction asked by plaintiff.

The object of the third instruction asked by the plaintiff and refused was to exclude from the consideration of the jury so much of Judge Lord’s testimony as referred to statements made to him by Schulze after the sale, and not in the presence or hearing of Gutzweiler. Having permitted these statements to be made before the jury, and which had been introduced by the defendants as tending to prove the fact that Gutzweiler bought the property for Sclmlze with means furnished by him, this injury to the plaintiff’s case ought to have been repaired as far as possible by giving this instruction. It would not have been a complete remedy for it, because the impression already made upon the minds of the jurors is not to be considered as entirely obliterated by the instruction ; but having admitted improper testimony, it was all that could have been done then to correct it.

The other judges concurring, the judgment of the court below will be reversed and the cause remanded.