Hickman v. Green

Decision Date18 June 1894
PartiesHickman et al., Appellants, v. Green et al
CourtMissouri Supreme Court

Appeal from Audrain Circuit Court. -- Hon. E. M. Hughes, Judge.

Affirmed.

John M Barker and Geo. S. Grover for appellants.

(1) The court erred in excluding evidence offered by plaintiff. The communications of Mrs. Green to Mr. Jesse were not privileged, because she was contemplating wrongdoing. R. S 1889, secs. 3648, 3660, 3661; State v. McChesney, 16 Mo.App. 259, and cases cited; Charlton v. Coombs, 32 L. J. chap. 284, cited at page 103; 7 American and English Encyclopedia of Law. And the court ought to have excluded her evidence because the other party was dead. 87 Mo. 617; 102 Mo. 186; 90 Mo. 433. (2) The court erred in its conclusions of fact. The court found that Mrs. Green had no notice; but she certainly did, as Mr. Lakenan, a disinterested witness of high standing, told her all about the nature of the Hickman title. Notice to her attorney, Mr. Duncan, was notice to her. He admitted a small portion of the will was adduced before him at the time. Her agent, Mr. Nelson, also knew it. Linermore v. Blood, 40 Mo. 48; Bank v Hoefer, 88 Mo. 37. (3) The court erred in giving the judgment to defendant, when it should have been for plaintiff. The burden of showing that the defendant was an innocent purchaser rested upon her, and she did not show it. On the contrary, the facts and circumstances showed conclusively that she had notice, at least, of sufficient facts to put her on inquiry of Mr. Lakenan, if she had any wish to know. 14 Mo. 170; 47 Mo. 304, 306; 3 Wash. on Real Property [4 Ed.], 317; Drey v. Doyle, 99 Mo. 459.

George Robertson for respondents.

(1) The evidence of Mr. Jesse, the attorney to whom Mrs. Green carried the abstract of title to the lands was inadmissible. Mrs. Green says that she went to Mr. Jesse to procure his services to examine the title for her. Mr. Jesse says she came to him to consult him professionally. Any communication that she made to him is privileged. R. S. 1889, sec. 8924; Cross v. Riggins, 50 Mo. 335. (2) The firm of Moore & Nelson were employed simply for the purpose of making the exchange. They represented both parties in the trade, but had nothing to do with the examination of the title. Mr. Duncan performed that duty for Mrs. Green. Mrs. Green had no knowledge of the unrecorded deed from Lakenan to Mrs. Hickman and bodily heirs. She was, therefore, an innocent purchaser and took good title as against the whole world. R. S. 1889, sec. 2420. The deed from Lakenan to Mrs. Hickman, under which Mrs. Green purchased, affects real estate and comes within the registry acts and conveys a good title to those unaffected with actual notice. Munson v. Ensor, 94 Mo. 504; Ebersole v. Rankin, 102 Mo. 488. (3) "If the authority of the agent is confined to obtaining the execution of the deed, the notice of the agent is not imputable to the principal. Devlin on Deeds, sec. 779; Wyllie v. Pollen, 32 L. J. (N. S.), 782. Notice to an agent to bind the principal must be within the scope of the agent's employment and notice to him for any fact outside the scope of his agency will not affect his principal. Trentor v. Pothen, 46 Minn. 298; Roach v. Karr, 18 Kan. 529; Smith v. Board, 38 Conn. 208; Conger v. Railroad, 24 Wis. 157. (4) Mrs. Lucy J. Green was a competent witness. Coughen v. Haeussler, 50 Mo. 126; Orr v. Rode, 101 Mo. 387. (5) These plaintiffs were all of age and knew of the fact that their mother was trading the lands in Mexico to Mrs. Green when it was done. One of the daughters, a plaintiff, went with her mother to the office of Moore & Nelson to assist in the trade. The trade was on from the fourteenth to the twenty-fourth day of April. They knew that Mrs. Green was about trading for the property, and, according to their own evidence, made no objections till after the deeds had been placed of record and until Mrs. Green had taken possession. According to the evidence of Mrs. Green it was much later before they made any objections. They misled Mrs. Green or deceived her by this conduct and they should not be heard now to complain. Having thereby committed iniquity they shall now have equity. Pomeroy's Eq. Juris., sec. 397, et seq.

Gantt, J. Black, C. J., Barclay and Macfarlane, JJ., concur; Brace, Burgess and Sherwood, JJ., dissent. Gantt, P. J., dissents in toto.

OPINION

In Banc

Gantt J.

This is a suit in equity to restore a destroyed deed from J. G. Lakenan and wife to Mrs. Frances D. Hickman for her life, remainder to the natural heirs of her body, conveying to them a parcel of land in the city of Mexico, Audrain county, Missouri, ninety feet front by two hundred and seventy feet deep, being the north part of, and taken off of, the north side of lot number 35 of Mrs. Sparks' southern addition to the city of Mexico.

It was alleged in the amended petition, and sustained by the proofs, that in 1886, Lakenan and wife by warranty deed conveyed said land to Mrs. Hickman and her bodily heirs and that said deed was never recorded.

In May, 1889, Mrs. Hickman and her children were in the possession of this lot, occupying it as a residence. At the same time Mrs. Green, the defendant, was the owner in fee of a small farm of forty acres near Mexico, on which she was residing with her husband and codefendant herein. Mrs. Hickman was desirous of moving to the country and Mrs. Green preferred a residence in the city, and, thereupon, each of them employed the real estate firm of Moore & Nelson to effect the exchange of these two properties. Their contracts with Moore & Nelson were in writing. Mrs. Hickman's contract with them was executed May 14, 1889, and Mrs. Green's on May 16. In Mrs. Green's contract, the land was placed with Moore & Nelson to exchange for Mrs. Hickman's lot.

Mrs. Green asserted that she was the owner in fee of the forty acres and she agreed to take Mrs. Hickman's lot therefor, and give possession, November 1, 1889, the agency to continue for one month from its date. Moore & Nelson were "authorized to sell and contract under seal with purchaser for said premises according to the price and term of payment above written, or any price or term which we may agree to accept other than the above." Their commission was fixed at $ 50 if the exchange was effected, whether by them or another. Mrs. Hickman's contract was in all respects, except dates, exactly like Mrs. Green's. She represented that she was the owner in fee of her lot, and authorized the agents to exchange it for Mrs. Green's forty acres, and for the same commission and upon the same stipulation and give possession at "any time." Each owner valued her property at the time at $ 2,000, and there is no evidence that one was not as valuable as the other.

Mrs. Hickman caused an abstract of her title to the lot to be made, and, as by the abstract, the title would appear in Lakenan whose deed to her she had not recorded, and which, if recorded, would show she only had a life estate, she obtained from Lakenan and wife, another deed, a quitclaim deed, and special warranty, on May 23, 1889, conveying the title in the lot to herself without the words of limitation to her bodily heirs. Mrs. Green's title to the forty acres has not been disputed. Mrs. Hickman, through her agents, Messrs. Moore & Nelson, gave Mrs. Green the abstract to the lot, and Lakenan's quitclaim deed, and Mrs. Green submitted the abstract and deed to M. Y. Duncan, Esq., for his opinion on the title as shown by the abstract and deed. He advised her that Mrs. Hickman could make her a good title, and accordingly Mrs. Hickman made Mrs. Green a warranty deed to the lot in town, and Mrs. Green and husband made Mrs. Hickman a warranty deed to the forty acres, conveying a life estate to Mrs. Hickman, remainder in fee to her bodily heirs. Soon after the deeds were exchanged Mrs. Hickman with her children, the plaintiffs, moved out of her town house and took possession of the forty acres, and lived on it until she died, and Mrs. Green took possession of, and moved into, the house in town.

After the deeds were exchanged, Mrs. Hickman, her adult son Thomas Hickman, J. G. Lakenan and Nelson, of the firm of Moore & Nelson, met in the office of Moore & Nelson, in Mexico, and Nelson, in their presence, and at Mrs. Hickman's request, destroyed the unrecorded warranty deed from Lakenan and wife to Mrs. Hickman and her bodily heirs.

The plaintiffs in this cause are D. C. Hickman, Mary L. Hickman and Mariah Hickman, adult children and heirs of Mrs. Frances Hickman, who died April 2, 1890, and prior to the institution of this suit. The defendants are Mrs. Green and her husband, Lakenan and wife, and J. T. Hickman and James L. Hickman, adult sons of Mrs. Hickman, who refuse to become plaintiffs, and Mrs. Josie Hickman, the widow of a deceased son, William T. Hickman, and his two minor children, William T. and Sadie Hickman.

At the request of plaintiffs, the circuit court made its finding of facts, upon certain points in the case, as follows:

"I find that the witness Nelson was the agent of both Mrs Hickman and Mrs. Green at the time and before the transfer of the deeds were made between Mrs. Hickman and Mrs. Green; that he was agent only for the purpose of effecting an exchange of the lands between the parties, and was not authorized by Mrs. Green to judge of the goodness of the title she was getting from Mrs. Hickman, nor did he presume to act for her in that capacity; that Mrs. Green had in her employ an attorney, M. Y. Duncan, Esq., for the purpose of passing upon the title to the land she was getting; that Duncan, before the trade, did pass upon the title of Mrs. Hickman to the land traded Mrs. Green, and pronounced it good.

"I further find that Lakenan and...

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