Adair v. Mette

• Decision Date: 04 June 1900
• Citation: Adair v. Mette, 156 Mo. 496, 57 S.W. 551 (Mo. 1900)
• Parties: ADAIR v. METTE.
• Court: Missouri Supreme Court

57 S.W. 551

156 Mo. 496

ADAIR v. METTE.

Supreme Court of Missouri.

June 4, 1900.

OBJECTION TO EVIDENCE — APPEAL — COMMON-LAW MARRIAGE — REBUTTABLE PRESUMPTION — INSTRUCTIONS.

1. It is not error to overrule a general objection to evidence as being "incompetent, irrelevant, and immaterial," where the incompetency is created by extrinsic facts not brought to the attention of the court.

2. A specific objection to the competency of a witness cannot be raised for the first time on appeal.

3. The presumption of a common-law marriage from the conduct of the parties is a rebuttable presumption, and an instruction taking from the jury a written contract between the alleged husband and wife, in which they hold themselves out as unmarried, and practically making the presumption conclusive, is error.

4. In making out title by adverse possession, defendant was entitled to tack his actual possession to that of his predecessors; and an instruction limiting the possession to defendant was erroneous, and could not be cured by the giving of another instruction which was correct.

Burgess, J., dissenting.

In banc. Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action of ejectment by Elizabeth A. Adair against Louis Mette. From a judgment in favor of plaintiff, defendant appeals. Reversed.

John N. Straat and McKeighan, Barclay & Watts, for appellant. John J. O'Connor, for respondent.

BRACE, J.

This case was submitted on briefs, and decided in division No. 2. In due time a motion for rehearing was filed, sustained, and the case reargued in that division, whereupon the case was transferred to court in banc, and now stands for decision on that motion. The following statement of the case is from the divisional opinion of BURGESS, J.: "This is an action of ejectment for the possession of one undivided third of a lot of ground in the city of St. Louis. The petition is in the usual form. The answer admits possession, denies all other allegations in the petition, and sets up the statute of limitations as a bar to the action. Plaintiff had judgment in the court below for possession of the property sued for and $440 damages. The one-third interest in the monthly rents and profits was fixed at $6.66 per month. Plaintiff remitted $140 of the damages. After an unsuccessful motion for a new trial, defendant appealed. Plaintiff is the daughter of Mrs. Mary Jones Payne, who was at the time of her death, in 1853, the owner in fee simple of the land involved in this litigation. Mary Jones Payne was twice married, — the first time to plaintiff's father, Jones, by whom she had two children, the plaintiff and a brother, the latter of whom died before his mother, unmarried. Jones having died, his widow in 1840 contracted and entertained marital relations with one Thomas J. Payne, with whom she lived as his wife until 1846, during which time they had born to them two children, viz. Bryan Mullanphy Payne and Thomas Jefferson Payne, Jr. In 1846 Mary Jones Payne entered into a marriage contract with said Thomas J. Payne, by which she agreed with him, in consideration for his promise to marry her, to give to him all her property, including the land in question, to be held in trust for her during her life, and after his death the land to go to her two sons above named and Benjamin F. Payne, a son of Payne by a former marriage, and to any other child or children that might be born after the promised marriage. Another child was born, namely, Edward Howard Payne, but Bryan Mullanphy Payne died in infancy, so that at the time of Mary's death there survived her but three children, namely, Thomas Jefferson Payne, Jr., Edward Howard Payne, and the plaintiff, whose name was Jones; but she intermarried with a man named Mattox, who died, and then she thereafter intermarried with her present husband, Adair. One of the provisions of the said contract provides that under no circumstance should plaintiff receive or inherit any part or portion of her mother's property. This contract purports on its face to have been duly executed by plaintiff's mother before a notary public. But there was evidence tending to show that Mary never did sign or execute said contract; and there is no claim that the contract, so far as it could affect the title of Mary's land, was executed in conformity to the statutes then in force. In the winter of 1846, after making the marriage contract, plaintiff's mother and Payne were legally married by a minister of the gospel. Thereafter Payne and his wife moved from St. Louis to St. Charles county, Missouri, where they lived until 1853, when she died intestate. Thereupon Payne took control of all the land owned by his deceased wife, and collected the rents thereof until his death, which occurred in 1867. Defendant read in evidence, over plaintiff's objection, two powers of attorney claimed to have been made by Mrs. Payne in her lifetime to Payne, by virtue of which, and by virtue of the terms of the said marriage contract, he (Payne) after her death leased the land in question for ninety-nine years, which lease was read in evidence over plaintiff's objection. After his death all the land in question was taken possession of by her two brothers, namely, Thomas Jefferson Payne and Edward Howard Payne, and the heirs of the said Benjamin Howard Payne, he having died one or two days after the death of his father; and they or their heirs held and controlled said land until 1889, when the property was partitioned in a partition proceeding had in the circuit court of the city of St. Louis, but the plaintiff was not made a party to said suit. The evidence further shows that plaintiff never had any knowledge that the land in question belonged to her mother, or that her said brothers had possession thereof, until about 1889, after the aforesaid partition proceedings were concluded. The powers of attorney were not of record, and neither of them was acknowledged or executed by Mary Jones Payne as required by statute, and there was evidence tending to show she did not sign or execute them. The defendant went into possession of the land in 18__ under a lease given by Payne, after the death of his wife, for ninety-nine years, and continued as a tenant under said lease until 1890, when, after the partition proceedings aforesaid, he purchased it from the grantee holding under said partition sale; and he has continued in possession ever since, but has paid no rent since 1890 under said lease. It is insisted by defendant that the marriage contract between Mrs. Payne and Thomas Jefferson Payne is a valid instrument, and as, by its express terms, plaintiff is excluded from any interest in her mother's estate, she is not entitled to recover in this action. Upon the other hand, it is claimed by plaintiff that at the time the contract was entered into, if at all, plaintiff's mother and Thomas Jefferson Payne were living together as husband and wife under a common-law marriage, and that she could not convey or incumber her land, under the statute or common law then in force, except by deed joined with her husband, executed as required by statute; and, as this was not done, the marriage contract is absolutely void."

1. It is now urged for reversal that "the trial court erred in permitting the plaintiff to testify, against the objection and exception of defendant, to statements by Thomas J. Payne, through whom defendant claimed title, in the nature of admissions of the alleged common-law marriage; said Payne being deceased at the time of the trial, and plaintiff being interested in the event of the suit." "The statements," with "the objections and exceptions" referred to in this contention, are manifested by the following extract from the abstract: "Q. Did you know a man by the name of Thomas Payne? A. Yes, sir. Q. When did you first get to know him? A. From 1839 on, as long as he lived. Q. How long had you been in St. Louis before you got acquainted with Thomas Payne? A. He was about the first that came to the samps. Q. You came here in the spring of 1839? A. Yes, sir. Q. Was it during the same year that Mr. Payne showed up? A. Yes, sir. Q. When you went to live on Grand avenue, where did Mr. Payne live? A. He lived with my mother. Q. In the same house? A. Yes, sir. Q. How did they live together? A. I should think they were man and wife. We had there a little brother, Thomas Jefferson Payne, before we moved to Grand avenue. Q. About when did that first commence, in regard to the year? You say you came here in 1839, and moved there in 1842? A. Yes, sir. Q. Did Mr. Payne commence to live with your mother before you lived on Grand avenue, or after? A. Before. Q. Did they occupy the same room? A. Yes, sir. Q. Did they occupy the same bed? A. Yes, sir. Q. What is your answer to that? A. Yes, sir. Q. Now, during the time your mother and Mr. Payne were living together in 1842 or 1843, did your mother have any child born? A. Yes, sir. Q. What was its name? A. Thomas Jefferson. Q. Was Mr. Payne there at that time? A. Yes, sir. Q. Did you ever hear Mr. Payne speak of the child, or say who its father was? (Defendant's counsel objects to the question.) A. He took me to him, and told me it was my little brother. (Plaintiff's counsel withdraws the question.) Q. Did you hear any conversation with Mr. Payne, with your mother or with yourself, about the child? (Defendant's counsel objects to the question as incompetent, irrelevant, and immaterial.) Mr. Straat: There is no controversy about the fact that Mary Jones was the mother of children born out of lawful wedlock. Thomas J. and Bryan Mullanphy were born out of lawful wedlock. (The court overrules the objection, to which ruling of the court defendant at the time duly excepts.) A. He took me to the bed after the child was born, and said it was my little brother, Thomas Jefferson Payne; and I was too young then to think anything wrong about my mother. Q. Did you ever hear Mr. Payne introduce your mother, or...