Hume v. Hopkins
| Decision Date | 08 June 1897 |
| Citation | 41 S.W. 784,140 Mo. 65 |
| Parties | Hume v. Hopkins, Appellant |
| Court | Missouri Supreme Court |
Appeal from Boone Circuit Court. -- Hon. John A. Hockaday, Judge.
Affirmed.
N. T Gentry for appellant.
(1) The court erred in admitting the record copy of the deed of trust from Peter Haden to Goodding, trustee. The best evidence was the original deed itself, and a copy was not admissible till the original was first proven to be lost or destroyed. The plaintiff testified that he had the deed of trust among his papers somewhere, and that he had only looked for it once and that was four months before this suit was brought. He did not know whether it was lost or destroyed, or whether he still had it or his agent Quinn had it; but thought he had it himself. Pierce v. Georger, 103 Mo. 543; Crispen v. Hannavan, 72 Mo. 548; Christy v. Cavanagh, 45 Mo. 376; Strain v. Murphy, 49 Mo. 340; Hoskinson v. Adkins, 77 Mo. 538; 1 Greenl. on Ev sec. 558. (2) The deed from Goodding, trustee, to Hume should not have been admitted in evidence over the objection of defendant. On the face of the paper this deed showed that it was intended to foreclose a deed of trust given to L. Hume to secure a note due L. Hume. The deed of trust already offered in evidence was in favor of J. Th. Fyfer to secure a note due Fyfer; and no deed of trust in favor of L. Hume was ever produced. This trustee's deed foreclosed nothing, and was therefore good for nothing. Another objection to this deed was urged to the trial court, and is now urged to this court, viz., the trustee had no right to sell till nine months after the death of Peter Haden; and the trustee's deed fails to show that nine months had passed before the day of sale. And the evidence is also silent on this point. R. S. 1889, sec. 144. Another objection is offered and that is, this deed recites that the trustee advertised and sold the lot on June 2, 1884; but the deed of trust was not given till June 18, 1884. (3) The deed from Goodding, trustee, to Hume should not have been admitted in evidence over the objection of defendant. It was dated November 7, 1894, and acknowledged and recorded November 9, 1894, while this suit was instituted two months before, viz., on September 8, 1894. Ejectment can be maintained only upon a legal title existing at the time the action is commenced. Ford v. French, 72 Mo. 250; Dunlap v. Henry, 76 Mo. 106; Collins v. Brannin, 1 Mo. 540; Norfleet v. Russell, 64 Mo. 178; Norcum v. D'Oench, 17 Mo. 98; Buxton v. Carter, 11 Mo. 481; Hall v. Bell, 6 Metc. 433. (4) The plaintiff was not a competent witness in this cause, as the evidence showed Peter Haden was dead. The court excluded Fyfer from testifying because he was one of the original parties to the contract and the other party was dead. If Fyfer was disqualified the plaintiff was also disqualified; as his right was derived to him from Fyfer, by reason of an assignment of the note. Revised Statutes 1889, section 8918, provides for a case exactly like this, as plaintiff's right was derived to him from one who was disqualified. "The assignee is incompetent if he is interested or a party." Woerner's Am. Law of Adm., p. 834; Ins. Co. v. Watson, 30 F. 653; Messimer v. McCray, 113 Mo. 382. (5) Defendant's witness Jack Bradford should have been allowed to testify to the statements made by Peter Haden. This was not hearsay; it was an admission of a party against himself, and it was also an admission against his grantees. Wilson v. Albert, 89 Mo. 545; Darrett v. Donnelly, 38 Mo. 492; Morey v. Staley, 54 Mo. 419; Burgert v. Borchert, 59 Mo. 80; Johnson v. Quarles, 46 Mo. 427; 1 Greenl. on Ev., sec. 189; Hayward Rubber Co. v. Bunckley, 30 Vt. 29; Wheeler v. McCorristen, 24 Ill. 210. (6) The only evidence that we have of the note is contained in the record copy of the deed of trust; and this does not state that the note was given for value received, and it does not state that it was negotiable, or was payable to anyone except Fyfer. "If the words 'for value received' are omitted, the paper is not negotiable." The note was not in evidence. Bailey v. Smock, 61 Mo. 218; Bank v. Bank, 3 Mo.App. 362; Davis v. Helm, 34 Mo.App. 336; 1 Parsons on Notes and Bills, 14; Taylor v. Newman, 77 Mo. 257; R. S. 1889, sec. 733; Daniel on Neg. Inst. [3 Ed.], p. 165.
Wellington Gordon, Webster Gordon and James C. Gillaspy.
(1) The deed read in evidence from Thomas Whittle to Peter Haden and Emily Haden, they being husband and wife, created a tenancy by the entirety, neither taking a moiety, but each the entire estate, the whole of which remained in Peter Haden, he having survived his wife, Emily. Russell v. Russell, 122 Mo. 235; Gibson v. Zimmerman, 12 Mo. 385; Garner v. Jones, 52 Mo. 68; Shroyer v. Nickell, 55 Mo. 264; Hall v. Stephens, 65 Mo. 670; 2 R. S. 1889, sec. 8844; Edmondson v. City of Moberly, 98 Mo. 523; Boyd v. Haseltine, 110 Mo. 203. (2) The lower court did not err in admitting the record copy of the deed of trust from Peter Haden to W. A. Goodding, trustee, to be read in evidence on the trial. R. S. 1889, sec. 2428. The record of a deed of trust, or a certified copy thereof is admissible in evidence when it is shown sufficiently to satisfy the mind of the trial judge that the original is lost. Kleimann v. Gieselmann, 114 Mo. 437. (3) L. Hume, the plaintiff, was a competent witness in this cause, and his incompetency as a witness, because the other party to the contract in issue had died, must be raised on the offer of the evidence at the trial, and the bill of exceptions shows that no objection was made or exception saved. Carney v. Carney, 95 Mo. 353; Berry v. Hartzell, 91 Mo. 132; Hickman v. Green, 123 Mo. 165. (4) The court did not err in allowing the two trustee's deeds from W. A. Goodding, trustee, to L. Hume to be read in evidence on the trial. The variances and omissions complained of by appellant are immaterial and are not substantial, and did not affect their competency to be used in evidence on the trial, or the validity of the title acquired by plaintiff at the sale. All the essential elements were embodied in both deeds to convey a good title. Morrison v. Herrington, 120 Mo. 665; Mo. Fire Clay Works v. Ellison, 30 Mo.App. 67; White v. Stephens, 77 Mo. 452; Coe v. Ritter, 86 Mo. 282; 2 R. S. 1889, sec. 7103; Mitchell v. Nodaway County, 80 Mo. 257. (5) The law does not require the fact to be recited in the trustee's deed that Peter Haden had died nine months prior to the sale under the deed of trust. The evidence of Holmes, Washington and Hume shows that Haden had been dead more than nine months prior to the sale under the deed of trust. (6) The court did not err in overruling defendant's motion for a new trial on the ground of newly discovered evidence. Reasonable diligence was not shown to procure said evidence and it was immaterial and did not go to the merits of the case and would not be decisive and productive on another trial of an opposite result on its merits. Mayor v. Burns, 114 Mo. 426; State v. Wheeler, 94 Mo. 252; Mills v. Sampsel, 53 Mo. 360.
This is an action of ejectment to recover the possession of lot number 238 in the city of Columbia, in Boone county. The petition is in the form usual in such suits.
The answer, after a general denial, contains some special averments the legal effect of which we construe to be that plaintiff claims title under a trustee's deed, made under power contained in a deed of trust executed by one Peter Haden to secure a note made to one Fyfer. That defendant and her mother now deceased bought the land and paid for it, and the title thereto, without her knowledge, was made to the said Haden who was the husband of her mother.
The answer as special defenses charges that the debt secured by the deed of trust was a gambling debt, and the deed of trust was therefore void. It further charges that said debt was fully paid, and the deed of trust satisfied before the sale thereunder was made by the trustee. The reply denied the new matter of the answer. It was agreed that Thomas Whittle was the common source of title.
Plaintiff introduced in evidence a deed from the said Whittle to "Peter Haden and Emily Haden his wife." This deed is dated December 30, 1876, recites a consideration of $ 600, conveys the lot in question and was recorded July 28, 1877.
Plaintiff then offered in evidence the record of a deed of trust made by Peter Haden to William A. Goodding, as trustee, to secure a note made by the said Haden to one J. T. Fyfer for $ 48.55, payable one year after date, with interest at ten per cent per annum. This deed was dated June 18, 1884, and was acknowledged and recorded on the same day. It authorized the trustee to sell the property in default of payment of the note and convey the same to the purchaser. Defendant objected to reading this record until the absence of the original was accounted for. After plaintiff had been examined as a witness, for the purpose of showing the existence of facts which would make the record admissible, the court overruled the objection and defendant excepted.
Plaintiff then offered in evidence a deed by the trustee conveying to him the lot in question. Defendant's counsel objected to the introduction of this deed for the reason that it recited that it was made under a power contained in a deed of trust to secure a note made by Haden to L. Hume, and for the further reason that it does not recite that nine months had elapsed before the sale by the trustee after the death of Peter Haden. The objection was overruled and defendant excepted. The deed is signed by Goodding as trustee, is dated June 16, 1887, and purports to execute powers contained in a deed of...
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