36 Mo. 326 | Mo. | 1865
delivered the opinion of the court.
This was a petition to set aside a decree rendered in the Jefferson Circuit Court in favor of the defendant Hicks and against one Downing, decreeing title to certain real estate in said Hicks. The petition sets out that at the June term of the Jefferson Circuit Court, 1860, the plaintiff obtained judgment against said Downing for the sum of $138 and 74 cts., upon which judgment an execution issued, and certain real estate which is described in the petition was levied on as the property of said Downing and sold to the plaintiff; that previous to the sale of the land to the plaintiff, as aforesaid, the defendant Hicks had commenced proceedings in the Jefferson Circuit Court against said Downing for the purpose of obtaining title to the land in question, claiming that said Downing had, by a verbal contract, agreed to sell the land to said Hicks, and that in pursuance of said contract said Hicks had taken possession of said land and made valuable improvements thereon, and paid the purchase money therefor. The petition charges that all the above allegations made in the petition of Hicks against Downing were false, and that the said Downing had filed an answer to said petition
The answer admits the plaintiff’s judgment and execution against Downing, and the sale of the land under the same, and the purchase by plaintiff; but denies all combination or fraud between the defendant and Downing for the purpose of defrauding the plaintiff, and insists upon the truth of all the allegations made by him in his petition against Downing.
Upon the trial, the court found the facts set forth in the petition to be true, and made a decree in favor of the plaintiff, setting aside the decree formerly rendered in favor of Hicks against Downing, and vesting the title to said land in the plaintiff, and ordering the plaintiff to pay to Hicks the sum of one hundred and eighty dollars. To reverse this decree, the defendant brings the cause to this court by writ of error. In the course of the trial, the defendant offered to prove the declarations of Downing in relation to the verbal sale by Downing to himself, which was rejected by the court, and that is urged as one ground for reversing the decree.
I am unable to see upon what legal ground the declaration of Downing could be admitted in this case. He was a competent witness, and could have been introduced by either
We have examined the case of McLaughlin v. McLaughlin (16 Mo. 243) cited by the defendant in support of his position; but the cases are not similar. In that case the declarations of the intestate were admitted against the administrator; but in this case the declarations of a living witness are sought to be introduced against a party who had no common interest with him. In Tucker v. Tucker (32 Mo. 243) it was held that the declarations of the grantor in a deed made at the time of executing the deed, showing his
It is also complained that the court below refused to admit the original petition and answer, in the case of Hicks v. Downing in evidence. We are not prepared to say that there was any error in this. The recitals in the pleadings in that suit certainly could not bind the plaintiff in this. Be that as it may, howevér, the pleadings make no issue with regard to what was tried in that case. The only question here was as to the fraud and collusion between Hicks and Downing.
It is unnecessary to review the propositions of law given and refused by the court. This was a case of chancery tried by the court, and the verdict seems to be for the right party, and it is therefore affirmed.