Eyermann v. Piron

• Decision Date: 26 June 1899
• Citation: 52 S.W. 229,151 Mo. 107
• Parties: Eyermann v. Piron, Appellant
• Court: Missouri Supreme Court

52 S.W. 229

151 Mo. 107

Eyermann v. Piron, Appellant

Supreme Court of Missouri, Second Division

June 26, 1899

Appeal from St. Louis City Circuit Court. -- Hon. John M. Wood Judge.

Affirmed.

J. R Myers for appellant.

(1) The court erred in admitting the evidence of plaintiff. "In actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to the court to be insane, the other party to such contract or cause of action shall not be admitted to testify in his own favor or in favor of any party to the action claiming under him." Sec. 8918, R. S. 1889; O'Bryan v Allen, 108 Mo. 227. (2) The court erred in refusing to allow the defendant to testify who was no party to the contract on which plaintiff sued. (3) The court erred in refusing defendant's witness, J. R. Myers, to testify to statements made to him by August Eyermann, payee in said note and deed of trust, to the effect that he never had any dealings with Mrs. Schaefer and she never owed him anything and he did not know her. (4) Plaintiff did not show any title to the note or deed of trust, and therefore, the decree of the court was without authority in law or equity. Donovan v. Thompson, 9 Mo.App. 595; Reinhard v. Dorsey Coal Co., 25 Mo.App. 350; Mechanics Bank v. Donnell, 35 Mo. 373; Morrell v. Roberts, 58 Mo.App. 197; Wallace Cavett v. Thorp, 30 Mo.App. 131. (5) The statute of limitations conferred upon defendant a good title to the property in question after ten years of open, adverse and notorious possession under a claim of title. Bush v. White, 85 Mo. 359; Lewis v. Schwenn, 93 Mo. 32; Booker v. Armstrong, 93 Mo. 50; Rarthel v. Dozette, 43 Mo. 144; St. Louis v. West, 103 Mo. 655.

Rassieur & Rassieur for respondent.

(1) The production of the note and mortgage by plaintiff, and proof of the signature and indorsements, established prima facie that he is the bona fide holder and owner thereof. Priest v. Way, 87 Mo. 16; Mechanic's Bank v. Wright, 53 Mo. 153; Shirts v. Overjohn, 60 Mo. 305; Balmer v. Sunder, 11 Mo.App. 454; Rubelman v. McNichol, 13 Mo.App. 584; Lachance v. Loeblein, 15 Mo.App. 460; Grelle v. Loxen, 7 Mo.App. 97. (2) A mortgage may be enforced against the land even though an action upon the note would be barred by limitation. The possession of the mortgagor must have been adverse to the mortgagee, to bar the mortgage. Lewis v. Schwenn, 93 Mo. 26; Booker v. Armstrong, 93 Mo. 49; Gardner v. Terry, 99 Mo. 523; Tucker v. Wells, 111 Mo. 399; Wood v. Augustine, 61 Mo. 46; Cape Girardeau Co. v. Harbison, 58 Mo. 90. The mortgagor's possession is presumed to be friendly, and will be so regarded, unless the mortgagor repudiates the mortgage and holds possession adverse and hostile to the mortgagee. Combs v. Goldsworthy, 109 Mo. 160; Chouteau v. Riddle, 110 Mo. 371; Atchison v. Pease, 96 Mo. 566; St. Louis v. Priest, 103 Mo. 652; Snyder v. Railroad, 112 Mo. 540; Benton Co. v. Czarlinsky, 101 Mo. 280; Orr v. Rode, 101 Mo. 387; Lewis v. Schwenn, 93 Mo. 26. And the possession of a grantee of the equity of redemption is regarded the same as the possession of the mortgagor. Combs v. Goldsworthy, supra; Chouteau v. Riddle, supra. (3) Plaintiff's testimony, concerning matters occurring since the death of the mortgagor, was competent. Wade v. Hardy, 75 Mo. 394; McGlothlin v. Henry, 59 Mo. 213; Martin v. Jones, 59 Mo. 187; Poe v. Dominic, 54 Mo. 119; Banking House v. Rood, 132 Mo. 256; Bank v. Payne, 111 Mo. 292. (4) The admissions of an indorser, made long after the transfer of the note, can not affect the title acquired by a bona fide holder for value. Blancjour v. Tutt, 32 Mo. 576; Cleaveland v. Davis, 3 Mo. 331; White v. Ingram, 110 Mo. 474; Albert v. Besel, 88 Mo. 150; Weinrich v. Porter, 47 Mo. 293; Stewart v. Thomas, 35 Mo. 202. (5) The defendant, the grantee of the equity of redemption, was not competent to testify to matters occurring prior to the death of Gottlieb Eyermann, Sr., the assignee of the mortgage. Sec. 8918, R. S. 1889; O'Bryan v. Allen, 108 Mo. 227. A judgment will not be reversed because of the exclusion of testimony, unless the materiality of the testimony appears from the record, so that the appellate court can determine whether the error was prejudicial or harmless. Roussin v. Ins. Co., 15 Mo. 244; Wilkerson v. Allen, 67 Mo. 502; Aull Sav. Bank v. Aull, 80 Mo. 199. Nor will a case be reversed because of the exclusion of testimony, where the testimony excluded is merely cumulative. Morgan v. Wood, 38 Mo.App. 255; Burnstein v. Railroad, 56 Mo.App. 45.

GANTT, P. J. Sherwood and Burgess, JJ., concur.

OPINION

GANTT, P. J.

This is a suit to foreclose the defendant's equity of redemption in certain St. Louis real estate, and was commenced February 18th, 1893.

Mrs. Magaretha Schaefer, the mother of the defendant, Mrs. Piron, acquired the property by deed in 1878.

On August 4th, 1879, Mrs. Schaefer executed her negotiable promissory note of that date for $ 800, payable to August Eyermann three years after date, with interest from maturity, and at the same time executed her deed of trust of that date, conveying said property to said Eyermann's trustee, to secure the payment of said note. Said deed of trust also recited: "In trust, however, for the following purposes, to wit: Whereas the party of the first part being indebted to the party of the third part, has executed and delivered to said party of the third part her promissory note, of even date herewith, for the sum of $ 800.00, payable three years after date, with interest after maturity at the rate of 6 per cent per annum; now, therefore, if said party of the first part shall well and truly pay said note, together with interest to accrue thereon, when the same ought to be paid, then this deed to be null and void, otherwise to remain in full force and effect. It is, however, distinctly agreed and covenanted by and between the party of the first part and the party of the second part that at the expiration of said three years, the said party of the third part, or his assigns or legal representatives, will, at the request of the party of the first part, renew said principal note from year to year for the space of five years thereafter, by adding the yearly interest thereto. This renewal, however, to be made only at the request of the said party of the first part, and the covenant therefor not to extend to her heirs, assigns or legal representatives."

The deed of trust was properly acknowledged before J. J. Laughlin, a notary public, and was duly recorded. The note bears the indorsement of said August Eyermann; also of Gottlieb Eyermann, Jr., as administrator of Gottlieb Eyermann, Sr., deceased; and the note and deed of trust were filed by the plaintiff with his petition.

On August 9, 1883, Mrs. Schaefer conveyed the property to the defendant, her daughter, by deed of that date, duly recorded, subject to the deed of trust aforesaid, and the book and page of the record of the deed of trust are expressly referred to in the deed to the defendant.

The defendant, in her third amended answer, denied generally the allegations of the petition, and pleaded affirmatively that the note and present action were barred by the statute of limitations; that the defendant is and was in adverse possession of the property for more than ten years before the institution of the suit, and that the note and deed of trust were given without consideration.

At the time of the institution of the suit, both Gottlieb Eyermann, Sr., and Margaretha Schaefer were dead.

The note and deed of trust and other deeds above referred to were read in evidence.

Peter J. Doerr, cashier of the Lafayette Bank, who was familiar with the signatures of the indorsers, testified that the indorsements of August Eyermann and of Gottlieb Eyermann, Jr., administrator, were genuine. Arnold P. Roetter, also identified August Eyermann's indorsement.

August Eyermann, the original payee was offered as witness, but owing to the death of Mrs. Schaefer, his testimony was excluded, upon an objection of the defendant.

Gottlieb Eyermann, Jr., the plaintiff, testified that he had indorsed the note as administrator, and that he received this note upon the distribution of the assets of his father's estate. Defendant objected to this testimony on the ground that the witness was incompetent, which objection was overruled by the court, and defendant excepted.

John Eyermann, George Eyermann, Pauline Redwick and Margaretha Goebel, the only other distributees of the estate of Gottlieb Eyermann, Sr., deceased, also offered to testify that they made no claim to the note, but their testimony was excluded.

John Markwitz, an insurance agent, testified that in March, 1895, the defendant, in conversation with him, while he was soliciting her insurance, acknowledged that plaintiff claimed the property.

A. O. Engelmann testified that in 1890, when he demanded payment of a special tax bill, Mrs. Schaefer and the defendant, Mrs. Piron, requested him to see Mr. Eyermann and collect from him, "because he holds a deed of trust upon the property."

The defendant introduced a number of witnesses, her daughter, Lena Piron, Mrs. Christman, Mrs. Krenzer, Mrs. Grasick, and Mrs. Gazell, who testified that Mrs. Schaefer said that Mrs. Piron was the owner of the premises; that Mrs. Piron lived there for 13 years, and that she made the necessary repairs from time to time.

Lena Piron also stated that Gottlieb Eyermann, Sr., called at the house only once, in 1883, when Mrs. Schaefer executed the deed to the defendant. Eyermann always paid the taxes.

Mrs Gazell testified that she was housekeeper for Gottlieb Eyermann, Sr., from 1877 to 1887, and Mrs. Piron was also in his employ. During that time Eyermann...