48 Mo. 346 | Mo. | 1871
delivered the opinion- of the court.
This is a suit in equity to restrain the defendant from disposing of the premises described in the petition, and to divest hini of his apparent title, and to vest the same in the plaintiff, Josephine
It is alleged in the present petition that-Archibald Peery was the owner of said premises in March,-1852, and that he at that time conveyed the same to his son Henry W. Peery, by a deed duly executed and delivered, and that the deed so executed and delivered was subsequently lost or destroyed without having been recorded. The plaintiff’s asserted rights depend upon the fact of the execution and delivery of this deed, and that fact is put in issue by the pleadings.
It is shown by the evidence that Archibald Peery, prior to the supposed execution of the deed, declared his purpose to convey said land to- his said son, and that he subsequently stated that he had made the conveyance as he had proposed to do. It further’ appears that he was present when his son’s will was executed, that the will was read over in his presence, and that it contained a bequest of the lands in question to the wife and daughter of the testator, and that he was inquired of after the son’s death in regard to the deed, the administrator of the deceased being unable to find it, and that he again recognized the existence of the deed, stating that the last time he saw it, it was in his son Henry’s possession, or in his drawer- — or words to that effect. No question is made as to the weight or sufficiency of this evidence, if admissible, to prove the facts asserted. The evidence is assailed as wholly incompetent, and its admission was objected to on that ground.
Archibald Peery’s statements and declarations are objected to as being mere hearsay testimony, and therefore inadmissible, as the defendant insists. These statements and declarations undoubtedly belong to the class of evidence usually denominated hearsay, but it does not thence follow that the court' committed error in admitting them in evidence, for there are limitations and exceptions to the rule excluding such testimony. The declarations of persons since deceased, against their interests at the time the declarations were made, constitute one exception to the rule rejecting hearsay evidence. In- order, however, to make such declarations admissible; it must appear that the declarant is
In Davis v. Spooner, 3 Pick. 284, both parties claimed under a deed from “ S.,” as both parties here claim to derive title from Archibald Peery. The deed by which the demandant claimed, (as in the present case) was the oldest, and was unrecorded. The defendant purchased with actual notice of the first deed. That being shown, and that the -grantor had fraudulently obtained and suppressed the first deed, it was decided that his declarations were admissible to prove its existence and contents, as coming from one under whom the defendants claimed. This decision is an illustration of the rule laid down by Greenleaf, and was cited and approved by this court in Dickerson v. Chrisman, 28 Mo. 139; see also McLaughlin v. McLaughlin, 16 Mo. 250 ; and Johnson v. Quarles, 46 Mo. 423:
In the case now before the court, the declarant must have known the facts attested by him. He knew whether he had executed a deed to his son, as he represented the fact to have been. His declarations were against his interests, and he has since deceased, and cannot therefore be produced upon the stand as a witness ; his statements, therefore, under the circumstances, according to the rule laid down in the books, were receivable.in evidence for what they were worth. Their weight and value is another matter. Their admissibility, however, is the only point insisted upon by the defendant. Coupled with the other evidence in the case, they abundantly sustain the allegation that Archibald Peery conveyed the disputed premises to his son Henry, as the petition avers, and his title has descended to and vested in Mrs. Wynn — the defendant having purchased, as the evidence shows, with a very full knowledge of her rights.
This matter of the statute of limitations is evidently an afterthought. The judgment of the Circuit Court was for the plaintiff, and I think it should be affirmed.