Avery v. Fitzgerald

• Decision Date: 20 February 1888
• Citation: 94 Mo. 207,7 S.W. 6
• Parties: AVERY v. FITZGERALD et al.
• Court: Missouri Supreme Court

7 S.W. 6

94 Mo. 207

AVERY v. FITZGERALD et al.

Supreme Court of Missouri.

February 20, 1888.

1. EJECTMENT — DEFENSES — FORMER JUDGMENT.

In Missouri a judgment in ejectment is no bar to a second action for the same property, between the same parties, whether titles and defenses in both actions be the same or not.

2. SAME — EVIDENCE — RELEVANCY.

In an action in ejectment, where defendant claimed as purchaser under deed of trust, executed by plaintiff, the issue being the execution or non-execution of said deed, which was duly certified to by a notary, and the plaintiff failed and refused to deny in his testimony, when the deed was shown to him, that he executed it, but alleged that it was procured by fraudulent representations, of which defendant had no notice, there is no evidence to support a verdict for plaintiff.

3. SAME — HARMLESS ERROR.

In ejectment, where the issue presented is the execution or non-execution of a certain deed of trust under which defendant claims, the admission in evidence of tax receipts to show that plaintiff had paid the taxes is harmless error, as they could have had no effect on the verdict.

4. WITNESS — EXAMINATION — INTRODUCTORY TESTIMONY.

Plaintiff in ejectment was allowed, as introductory to his testimony, to state that "he lived in Mississippi before the war; was a slave." Held that, as it is proper for the jury to know who the witness is, where from, and such personal matters as will enable them to appreciate his character, and estimate the value of testimony he is about to give, the admission of such statement was not error.

Appeal from St. Louis circuit court; SHEPARD BARCLAY, Judge.

Ejectment by Oliver Avery against Patrick Fitzgerald et al. Judgment for plaintiff. Defendants appeal.

Walker & Walker, for appellants. Leonard J. Smith, for respondent.

BRACE, J.

This is an action of ejectment to recover possession of lots 4 and 5 in James C. Edwards' addition to Prairie Place, in the city of St. Louis. The answer was a general denial. Plaintiff, to show title in himself, introduced a deed from James C. Edwards and wife, dated October 23, 1866, to him, and defendants admitted that said deed vested in plaintiff, at the time of its execution, a good and legal title to the premises, and claimed to have acquired that title through a deed of trust executed by plaintiff, dated June 10, 1878, whereby the plaintiff conveyed said premises to one Joseph Truitt, trustee, to secure the payment of a note of even date therewith, payable to the order of M. W. Watson, for $150, one year after date. In accordance with the provisions of this deed of trust, the premises were sold by the trustee, and one Burchard Voigt became the purchaser thereof, and received a deed therefor dated July 28, 1879; and said Voigt, by his warranty deed dated June 30, 1883, conveyed the premises to this defendant, Patrick Fitzgerald, who, it was admitted, was in possession, by his tenant Glenny, his co-defendant herein. All the foregoing conveyances were admitted in evidence, and no question was raised on any of them except the deed of trust. The issue submitted to the jury on that deed appears by the following instructions given by the court: (1) "If the jury believe from the evidence that the plaintiff, Oliver Avery, did not sign by a mark, or authorize some one else to sign for him, or acknowledge, the deed read in evidence, and purporting to be a deed from Oliver Avery, plaintiff, to Mills W. Watson's trustee, then the jury should find for the plaintiff, Oliver Avery." (2) "The jury are instructed that the only question for them to determine is whether the plaintiff, Oliver Avery, did or did not execute the deed of trust offered in evidence, made by said plaintiff to Mills W. Watson's trustee; and, if they are satisfied that the plaintiff did execute said deed of trust, they will return a verdict for defendant." No exceptions were taken to these instructions, and they are recited simply to show the issue submitted to and tried by the jury. The jury found for the plaintiff, and defendants appeal, and urge for reversal that the court admitted evidence offered by the defendants, and that the verdict is against the evidence. The evidence is preserved in the bill of exceptions in narrative form.

There is nothing in the objection to the introductory statement of the plaintiff in his evidence that "he lived in Mississippi before the war; was a slave." It is highly proper that the jury, before hearing the evidence of a witness, should know who he is, where he is from, and such other matters personal to him as will enable them to appreciate the character of the witness they have before them, and to form a just estimate of the value of the testimony he is about to deliver.

The tax receipts offered in evidence, and admitted by the court, showing payment by plaintiff of the taxes on the premises assessed for the years 1883 and 1884, had no bearing whatever on the issues, and should have been rejected; but, as it is impossible to conceive any effect their admission could have had on the verdict, the case ought not to be reversed for this error.

There was no error in the refusal of the court to admit in evidence the record of a former suit in ejectment between defendant's grantor, Voigt, and the plaintiff, and of the judgment rendered therein in favor of Voigt against plaintiff for the same premises, under the same chain of title as in this suit. That a judgment in ejectment is no bar to a second action for the same property, between the same parties, whether the titles and defenses in both actions be the same or not, has been so long established in this state as to have become a universally recognized rule in the tenure of real property, and will not be departed from by this court. Foster v. Evans, 51 Mo. 39; Kimmel v. Benna, 70 Mo. 52; Ekey v. Inge, 87 Mo. 493.

The only remaining point to be considered is whether there is any evidence in the case to support the verdict, for, if there is, the verdict must stand; it being the well-settled practice in this court in law actions not to weigh the evidence, nor interfere with a verdict if there is any evidence to support it. If there is any such evidence, it must be found in the testimony delivered by the plaintiff in his own behalf. In order to understand that evidence, however, it will be necessary to set out the evidence of the defendants bearing directly upon the only issue submitted to the jury, — whether the plaintiff did or did not execute the deed of trust read in evidence. Three witnesses testified for the defendants, and so much of their evidence as bears directly upon the execution of the instrument is as follows:

Mills W. Watson testified: "I wrote out the deed of trust, taking the description of the property from Edwards' deed to Avery; and, after writing the deed of trust, I carefully read it to him, in the presence of George W. Clark, and fully explained its meaning to him. At the same time, I made out a promissory negotiable note, payable to my order one year from date for $150, and interest at 10 per cent. per annum. I also read the note, and explained it to him. He said he understood what was done, and was satisfied. John F. Wielandy, who was absent when I wrote the deed, and read it to the plaintiff, Avery, came in soon after, and, he being a notary public, I asked him to take his acknowledgment of the deed. Avery being present, Mr. Wielandy took the note and deed of trust, and read both to plaintiff, and explained to him the meaning of both, and asked him if he wished to sign the note and acknowledge the deed of trust. He said he did. Mr. Wielandy then, in the presence of George W. Clark, myself, and Avery, wrote the name `OLIVER AVERY' on the deed of trust at the proper place, and asked him to make his mark with the pen. Avery did so, and acknowledged it to be his signature, and that he executed the deed for the purposes therein mentioned. Mr. Wielandy also wrote his (Avery's) name, at his request, on the note; Avery making his mark, as he did on the deed of trust, and requested George W. Clark to write his name as a witness on the note and deed, which he did, in the presence of Mr. Wielandy and myself. [Here witness was asked to examine the deed of trust and a negotiable promissory note, and asked to state if he had seen them before. Witness answered.] I recognize both the note and deed;

                                                                           his
                the body of both being in my handwriting. The words `OLIVER X AVERY,'
                                                                           mark
                

are on both note and deed in the handwriting of John F. Wielandy. The mark or cross was made by Oliver Avery, plaintiff in this case. The name `GEORGE W. CLARK' was written by George W. Clark in my presence, and are the same note and...