Williams v. Mitchell

112 Mo. 300 | Mo. | 1892

Sherwood, P. J.

I. It was clearly competent to offer in evidence the probate record showing the order for specific performance of the contract set forth in the title bond, and it was wholly immaterial that such record contained no caption naming the parties, and reciting neither the filing of a petition or notice to the executors, etc. And this is so because it is the established doctrine of this court that, in regard to courts exercising probate functions, they are to be treated, so far. as concerns probate matters, in all respects as courts of general jurisdiction; and the same liberal intendments and presumptions attend their acts and doings, within the sphere of their organized authority, as attend the acts and doings of courts of general jurisdiction. Brook v. Duckworth, 59 Mo. 48; Johnson v. Beazley, 65 Mo. 250; Price v. Real-Estate Ass’n, 101 Mo. 107; Murphy v. DeFrance, 105 Mo. 53.

In accordance with the authorities cited it will, therefore, be presumed that all prerequisite steps were taken and all parties. present before the probate court necessary- to give full validity to its proceedings in that behalf.

II. And this record evidence constituted an important basis on which to build, or assist in building, a presumption that a deed was executed in compliance with the judgment of the probate court, because the only condition required by that judgment was that payment be made as specified in the title bond.

It will have been observed, that the judgment of the probate court was so worded that it allowed the deed to be made to Joseph Burden or order, and that the note of Burden by its terms was not due until the twenty-third day of October, 1847, several months after the date of the order for specific performance. Now it appears from the testimony of Kimbrough, as already stated, that he had bought the land of Burden and paid for it the year previous to the .action of the probate court in relation to the specific „ performance of the contract. • In view of this testimony it is but reasonable] to suppose that the judgment for specific performance was framed so as to conform to the contractual relations aforesaid,' existing between Burden and Kimbrough, and between the former and Williams. Taking this premise as true, and there seems, to exist no reason to doubt it, it is next in order to consider, first, whether payment of the note was made to the executors, and, second, whether they complied with the judgment of the probate court.

In determining these points, it becomes necessary to advert to familiar principles relative to certain disputable presumptions of law, to-wit: One of the most hackneyed of those presumptions is that in relation to the usual course of human affairs, and that those engaged in transacting business will transact it in the ordinary way. 1 Greenleaf on Evidence [14 Ed.] sec. 38.

Thus, as it is the usual course of business that a promissory note when paid, or other debenture or writing, obligatory when satisfied or discharged, is taken up by the maker or obligor, the fact thal such an instrument is afterwards found in the possession of the payor qr obligor, á legal presumption is at once raised that the maker or obligor has paid, discharged or satisfied the claim evidenced by the instrument thus taken up, because this is in the ordinary course of business. 1 Greenleaf on Evidence, sec. 38, supra; 2 Wharton on Evidence [3 Ed.] sec. 1362; Fitzgerald v. Barker, 85 Mo. loc. cit. 22.

In the case at bar, as will be remembered, the promissory note of Burden, though inventoried in January, 1847, by the executors who first took charge of the estate, was not found by those who subsequently had the estate in charge, nor could it be found amongst the papers of the estate a short time before the trial, while the title bond was found among such papers at the time they' were searched for the note. These facts alone tend very strongly to show a payment of the note in question.

III. Besides, it does not appear that any suit was ever instituted on the note during the long space of time that the estate was in course of administration, although that estate was confessedly insolvent; indeed, one of the administrators on being discharged as shown by the records reported to the court that nothing had come to his hands in his fiducial capacity.

The fact that no action is brought on a claim, and no assertion made of it as a demand, is evidence unfavorable to its existence; and this is especially true of a claim or obligation which long since has matured and become dormant. 2 Wharton on Evidence [3 Ed.] sec. 1320a; Angell on Limitations [6 Ed.] sec. 11; 1 Greenleaf on Evidence, sec. 197; Bank v. Aull, 80 Mo. loc. cit. 201; 2 Best on Evidence [Morgan’s Notes] sec. 320.

IV. But payment of the note may well be presumed on other grounds. It is a common-law presumption that payment of a debt, even one due by specialty, where it has been unclaimed and without recognition for twenty years, is, in the absence of evidence to the contrary, presumed to have been paid; and the jury may infer the fact of payment from the circumstances of the case in a shorter period. 1 Grreenleaf on Evidence [14 Ed.] sec. 39. The same holds good of a simple contract debt. Angelí on Limitations [6 Ed.] sec. 78.

V. And this common-law presumption is independent of, and unaffected by, the statute of limitations. Carr v. Dings, 54 Mo. 95, and cases cited.

VI. Again, a vendor’s lien under a title bond will be presumed to have been satisfied after the lapse of twenty years, where there has been continued possession by the vendee. 2 Jones on Liens, sec. 1108; 2 Wharton on Evidence, sec. 1360, and cases cited; Lewis v. Hawkins, 23 Wall. 119; Harris v. King, 16 Ark. 122.

VII. The agreed statement already referred to shows that the possession of the land in controversy, with the exception aforesaid, was “actual and continuous” from the time of its purchase by Burden down- to the time of suit brought in 1889; and the agreed statement and testimony show that such “actual and continuous” possession of the premises has been maintained ever since by those who have successively bought and sold it as their own, and that no one representing the heirs or devisees of Williams has, until the present action, laid claim to the land. In such circumstances the possession of the premises may well be 'deemed adverse to the whole world. Garrett v. Jackson, 8 Harris, 335.

Owing to the facts already recited, it need not be discussed what the situation would have been had proceedings been instituted within twenty years to enforce any supposed vendor’s lien against the first purchaser. As already seen, the only link lacking in a perfect chain of legal title to the land in litigation is a conveyance from the estate of Williams to Kimbrough, something evidently contemplated in the order for specific performance made after Kimbrough had bought the land from Burden.

Considering all circumstances aforesaid, it may well be presumed that the executors of Williams executed a deed to Kimbrough in conformity to the order of the probate court. Touching presumptions of this nature Glreenleaf observes: “Juries are also often instructed or advised, in more or less forcible terms, to presume conveyances between private individuals in favor of the party who has proved a right to the beneficial enjoyment of the property, and whose possession is consistent with the existence of such conveyance, as is to be presumed; especially if the possession, without such conveyance, would have been unlawful, or cannot be satisfactorily explained. This is done in order to prevent an apparently just title from being defeated by matter of mere form. * * * • It is sufficient that the party, who asks for the aid of this presumption, has proved a title to the beneficial ownership, and a long possession not inconsistent therewith; and has made it not unreasonable to believe that tbe deed of conveyance, or other act essential to the title, was duly executed.” 1 Greenleaf on’ Evidence [14 Ed.] sec. 46, and cases cited.

And in concluding this paragraph of the opinion it is not improper to remark that this court in several instances has spoken of the disfavor with which we view attempts to overthrow business and judicial transactions which have occurred at remote periods (McClanahan v. West, 100 Mo. loc. cit. 324; Burdett v. May, 100 Mo. loc. cit. 18, and cases cited), and of the liberal presumptions that we would indulge in order to prevent irregularities or imperfections in such transactions from being held fatal. Long v. Mining & Smelting Co., 68 Mo. loc. cit. 432, et seq.; Price v. Real-Estate Ass’n, supra.

Here, one of the female plaintiffs, who never married, was about fifty years of age at the time of the trial; the matters which gave origin to this litigation occurred nearly a half century ago, and of the original contracting parties but one, it seems, remains alive, Jno. S. Kimbrough, and the remaining administrator, Judge W. C. Price, was at the time of the trial seventy-seven years of age; the others either died from old age or else removed from the state. In such circumstances as these, if ever there was a case which would give occasion to invoke the healing and wholesome presumptions of the common law in order to supply links and thus support titles and validate seeming irregularities, it is this one. Such presumptions are freely indulged by the courts, e. g.: Thus, Sebgeant, J., •on an occasion similar to the present one, said: “The rule of presumption, when traced to its foundation, is .a rule of convenience and policy, the result of a necessary regard to the peace and security of society. * * * Justice cannot be satisfactorily done when parties and witnesses are dead, vouchers lost or thrown away, and a new generation has appeared on the stage of life, unacquainted with the affairs of a past age, and often regardless of them. Papers which our predecessors have carefully preserved are often thrown aside, or scattered as useless by their successors.” Foulk v. Brown, 2 Watts, 215.

In another case, where there had been a parol bargain and sale of land and possession for forty years, the lower court required the same strictness of proof that is requisite in a recent case, and in speaking of this ruling and of the necessity of relaxing the rules of evidence in matters of ancient date, Agnew, J., said: “If the rule which requires the proof to bring the parties face to face, and to hear them make the bargain, or repeat it, and to state all its terms with precision and satisfaction, is not to be relaxed after the lapse of forty years, when shall it be? * * * There is a time when the rules of evidence must be relaxed. We cannot summon witnesses from the grave, rake memory from its ashes, or give freshness' and vigor to the dull and torpid brain.” Richards v. Elwell, 12 Wright, 364-367. See also 2 Wharton on Evidence, secs. 1338-1352.

VIII. Usually it is left to the jury to say whether in certain circumstances a promissory note has been paid, or a deed which constitutes a link in and completes the chain of title has been delivered. In this case it is quite evident, from the refusal of the defendant’s fifth instruction of • law, that the lower court did not consider the note had been paid, and in consequence of this, of course, could indulge no presumption that a deed had been delivered by the executors to Kimbrough.

But, notwithstanding this, we are of opinion that the evidence on these points is so clear and cogent as to warrant the indulgence of the presumption by this court of the payment of the note and the delivery of the deed.

IX. There may have crept into the record some errors in the admission of evidence and in the giving and refusing of declarations of law; but, as the judgment is so manifestly for the right party, the judgment should be affirmed, notwithstanding harmless errors which do not materially affect the merits of the action. Fitzgerald v. Barker, loc. cit. 96 Mo. 666; Brobst v. Brock, 10 Wall. 519.

All concur.