Atkinson v. Hardy

• Decision Date: 27 January 1908
• Citation: 107 S.W. 466,128 Mo. App. 349
• Parties: ATKINSON et al. v. HARDY.
• Court: Missouri Court of Appeals

107 S.W. 466

128 Mo. App. 349

ATKINSON et al. v. HARDY.

Kansas City Court of Appeals, Missouri.

January 27, 1908.

1. CONTRACTS — PARTIES — AGREEMENT FOR BENEFIT OF THIRD PERSON.

Where plaintiffs' parents executed a note secured by deed of trust on their homestead to plaintiffs' grandfather, who, on the death of plaintiffs' father, agreed that, if their mother would convey to plaintiffs her interest in the land, he would transfer the note to plaintiffs, and the mother so conveyed the land to plaintiffs, they were entitled to enforce the contract against the grandfather or his representative.

2. WITNESSES — SURVIVING PARTY TO CONTRACT.

Rev. St. 1899, § 4652 [Ann. St. 1906, p. 2520], provides that, when one of the original parties to a contract or cause of action is dead, the other party cannot testify in his own favor or in favor of any party to the action claiming under him, and that, when an executor or administrator is a party, the other party cannot testify in his own favor. Held, that where plaintiffs' parents executed a note secured by deed of trust on their homestead to plaintiffs' grandfather, who, on the death of plaintiffs' father, agreed that, if their mother would convey to plaintiffs her interest in the land, he would transfer the note to plaintiffs, and the mother conveyed the land to plaintiffs, she was a competent witness in an action by plaintiffs against the grandfather's administrator to recover the note and deed of trust, having no longer any interest in the controversy.

3. SAME.

Rev. St. 1899, § 4652 [Ann. St. 1906, p. 2520], provides that, when one of the original parties to a contract or cause of action is dead, the other party to such contract or cause of action shall not be permitted to testify in his own favor, or in favor of any party to the action claiming under him, and that, when an executor or administrator is a party, the other party cannot testify in his own favor. Held, that the word "party" in the latter clause means "party to such contract or cause of action," as written in the first clause; and hence, where plaintiffs' parents executed a note secured by deed of trust on their homestead to plaintiffs' grandfather, who on the death of plaintiffs' father agreed that, if their mother would convey to plaintiffs her interest in the land, he would transfer the note to plaintiffs, and the mother conveyed the land to plaintiffs, testimony of plaintiffs as to what the grandfather said to them, and as to what he said in their presence concerning the contract, was inadmissible in an action against his administrator to recover the note, since, though the contract was not made with plaintiffs, it was for their benefit, and was accepted by them.

Appeal from Circuit Court, Moniteau County; Wm. H. Martin, Judge.

Action by Sarah Atkinson and others against H. B. Hardy, administrator. Judgment for defendant, and plaintiffs appeal. Reversed.

Edmund Burke, for appellants. Moore & Williams, for respondent.

ELLISON, J.

Plaintiffs are the grand-children of James T. Atkinson, deceased, and the defendant is the administrator of his estate. This action is to compel the defendant to turn over to plaintiffs a promissory note for $500 and deed of trust, both in his possession, claimed by them to be their property. The judgment in the trial court was for the defendant. It appears that William Atkinson, who was the son of James, the deceased, executed the note in controversy to James and also a deed of trust on his homestead to secure the same, and that his wife, Sarah, the mother of these plaintiffs, joined him in executing such deed. Afterwards William died, leaving Sarah, his widow, and these plaintiffs, his children. There was evidence tending to show that, after the death of William, James proposed to and agreed with Sarah that, if she would convey to these plaintiffs her interest in the real estate, he would transfer to them the note he so held against William, their father. The evidence further tended to show that Sarah carried out her part of the agreement by making a deed to the property to plaintiffs and delivering it to them; that, when James was informed of this, he said he would immediately perform his part of the agreement by transferring the note and deed of trust to plaintiffs; and that he went to an attorney for that purpose. He left the note and deed of trust with the attorney without making the assignment. Afterwards the attorney gave the note to one Halford, a son-in-law of James, the deceased, but retained the deed of trust until after the death of James, when he gave it to the probate judge. The foregoing is not the evidence in detail, but it is the substance of what it tended to prove directly, or by proper...