Adair v. Mette

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

57 S.W. 551

156 Mo. 496

ADAIR v. METTE, Appellant

Supreme Court of Missouri

June 4, 1900

Appeal from St. Louis City Circuit Court. -- Hon. James E. Withrow Judge.

Reversed and remanded.

McKeighan Barclay & Watts and John N. Straat for appellant.

(1) 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. Chapman v. Daugherty, 87 Mo. 620; Emmel v. Hayes, 102 Mo. 186; Lins v. Lenhardt, 127 Mo. 271; Nowack v. Berger, 133 Mo. 24; Hopkins v. Bowers, 111 N.C. 175; 29 Am. and Eng. Ency. of Law, p. 728. (2) The court erred in the instructions given for the plaintiff at the trial. (a) The last part of plaintiff's first instruction was a misleading comment on the evidence, and put out of view the important fact of the marriage contract on the issue of whether or not there had been a prior common law marriage. McDermott v. Barnard, 19 Mo. 204; Glover v. Duhle, 19 Mo. 360; Railroad v. St. L. Union Stock Yards, 120 Mo. 541; McFadin v. Catron, 120 Mo. 274; State v. Swils, 105 Mo. 531; Barr v. Kansas City, 105 Mo. 557; Honey v. Kansas City, 94 Mo. 334. (b) The second of plaintiff's instructions repeated the error of the first and made it worse. (c) The third instruction for the plaintiff deprived defendant (on his plea of the statute of limitations) of the benefit of any adverse possession of the lot by his predecessors in title, under whom he claimed by regular conveyances, and hence it was fatally erroneous. Chouquette v. Barada, 23 Mo. 337; Menkens v. Blumenthal, 27 Mo. 198; Shaw v. Nicholay, 30 Mo. 99. (3) The court erred in not sustaining the defendant's motion for a new trial on the ground that the verdict was against the evidence in the cause.

John J. O'Connor for respondent.

(1) A general objection to the admission of evidence on the ground that it is "incompetent, irrelevant and immaterial," does not suffice, if at the time it is offered, it is material for any purpose. The court is entitled to have the specific reason if any exist, and the objector's failure to express the specific reason, destroys the value of the objection, if the same be overruled by the trial court. State v. Adams, 108 Mo. 216; Margrave v. Ausmuss, 51 Mo. 561; Kim v. Railway Transit Co., 90 Mo. 314; Sligman v. Rogers, 113 Mo. 654. And no objection or exception not saved in the bill of exceptions can be considered in this court. Bray v. Kremp, 113 Mo. 552; Clark v. Conway, 23 Mo. 438. At any event respondent was competent to testify to what she saw with her own eyes, or heard with her own ears as to the conduct between her mother and Payne, so long as it did not refer to the making, contents or delivery of the alleged marriage contract. Shanklin v. McCracken, 140 Mo. 348. Besides all this the appellant waived his right to object to respondent testifying, even if he had such a right. By cross-examining her, he made her his own witness. Hune v. Hopkins, 140 Mo. 65. (2) Instructions should be taken together and when so considered, if they declare the law sufficiently favorable to the appellant he can not complain. Ridenhour v. Railroad, 102 Mo. 270. And it is not error to give an instruction which omits a necessary word, or when taken by itself, is erroneous, if when read in connection with others given, the word is supplied and the law is correctly declared. Imp. Co. v. Ritchie, 143 Mo. 587. (3) Marriage at common law is only a contract which may be entered into by the parties alone without the presence or consent of a minister or officer of the law and without the accompaniment of any ceremony, and a marriage thus contracted between parties capable of contracting marriage can not be annulled by the subsequent acts of either or both of the parties thereto. And the existence of such a contract may be inferred from the acts of the parties thereto. Dyer v. Brannock, 66 Mo. 396; Cargile v. Wood, 63 Mo. 501; State v. Bittick, 103 Mo. 191; 2 Greenleaf on Ev., p. 513; 1 Bishop on Marriage and Divorce, sec. 283. (4) If plaintiff's mother and Payne were husband and wife at and prior to November 10, 1846, then the marriage contract is absolutely void, and could vest no power in Payne to make any disposition of her lands for a longer term than during the existence of the marriage or during the term of his own life, because a married woman could not convey or encumber her land under the statute or common law then in force, except by a deed joined with her husband, duly executed by her on private examination of the officer taking her acknowledgment or by a will, unless where the land was part of a separate estate, which was not so in this case. Secs. 669, 670, 680, 681, R. S. 1879; Shaffer v. Kugler, 107 Mo. 62; Bartlett v. O'Donoghone, 72 Mo. 564; Hoskinson v. Adkins, 77 Mo. 537; Goff v. Roberts, 72 Mo. 570; Miller v. Miller, 78 Ia. 117; Mueller v. Kaessmann, 84 Mo. 329. (5) The contract if taken as a deed is clearly void for want of proper acknowledgment. Wannell v. Kem, 57 Mo. 478; McCollum v. Boughton, 132 Mo. 622; R. S. 1879, secs. 669, 670, 680, 681. (6) A void deed may create color of title to enable one holding thereunder for more than ten years to set up adverse possession. But in the case of co-tenants, where one tenant is not in possession, the holding of the other co-tenants in possession will not start the statute of limitations to run, unless notice be actually brought home to the absent tenant that his co-tenants in possession are holding or claiming to hold the land under color of title adversely to him. McQuiddy v. Ware, 67 Mo. 74; Zeller's Lessee v. Eckert, 4 How. 289 (U. S.); McClusky v. Barr, 47 F. 154. Besides the question of adverse possession, where the evidence is conflicting, is a fact to be determined by the jury under proper instructions, which has been done. Wilson v. Taylor, 119 Mo. 632.

BRACE, J. Gantt, C. J., Robinson, Marshall and Valliant, JJ., concur in the opinion, except that Marshall, J., is of the opinion that the judgment should be reversed without remanding, upon the ground that there is no substantial evidence upon which a judgment for the plaintiff could be sustained; Sherwood, J., concurs in reversing the judgment and remanding the cause for error in the instructions; Burgess, J., concurs in the first paragraph, and dissents as to the second.

OPINION

In Banc

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 maintained 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's 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., and 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 circumstances 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...