Brewer v. Blanton

Decision Date22 August 1977
Docket NumberNo. 10329,10329
Citation555 S.W.2d 381
PartiesHayward BREWER and Floretta Brewer, Plaintiffs-Appellants, v. David E. BLANTON, Executor of the Estate of Frances L. Stallcup, Deceased, Gertrude Berry, Executrix of the Estate of Edward H. Berry, Sr., Deceased, Wilson S. McMullin and Nora McMullin, Defendants-Respondents.
CourtMissouri Court of Appeals

Weber Gilmore, Gilmore & Gilmore, Sikeston, for plaintiffs-appellants.

David E. Blanton, Blanton, Blanton, Rice & Sickal, Kenneth L. Dement, Sikeston, for defendants-respondents.



This is an action to reform a warranty deed dated November 10, 1972, whereby Frances L. Stallcup, "acting by and through her attorney-in-fact Edward H. Berry," conveyed residential property in Sikeston, Missouri, to plaintiffs Hayward Brewer and Floretta Brewer, husband and wife. The petition alleged that through "a mutual mistake of fact" a tract of land, referred to in the record as "the tip," was omitted from the description in the deed and that the true intention of the parties was that the tip should have been included in that description. The land which was included is in the general form of a square and is known as lot 4 in a certain platted subdivision. The "tip" lies north of the northeast portion of lot 4 and is adjacent thereto.

On March 8, 1973, Mrs. Stallcup, acting through her attorney-in-fact Berry, by warranty deed conveyed the tip to Wilson S. McMullin and Nora McMullin, husband and wife.

The action was filed on August 30, 1973. The defendants named in the original petition were Mrs. Stallcup, Berry, and Mr. and Mrs. McMullin. On January 7, 1974, plaintiffs took the deposition of Berry. Thereafter both Berry and Mrs. Stallcup 1 died. The third amended petition, on which the action was tried, substituted the respective personal representatives of Mrs. Stallcup and Berry. Accordingly, there are four defendants: the executor of Mrs. Stallcup, the executrix of Berry, and Mr. and Mrs. McMullin.

The third amended petition was in two counts. In Count I plaintiffs prayed that the deed of November 10, 1972, be reformed so that its description would include the tip, and further requested that title to the tip be declared to be in plaintiffs and not in defendants. Count II of the petition alleged that the McMullins were in possession of the tip and had fenced it and cut trees on it, by reason of which plaintiffs prayed damages in the sum of $1,000.

The court, sitting without a jury, found the issues on both counts against the plaintiffs and in favor of the defendants. The judgment also declared that title to the tip was in the McMullins. Plaintiffs appeal.

Plaintiffs' first "point relied on" is: "The trial court erred in its application of § 491.010, RSMo 1969 V.A.M.S." The point then sets forth several reasons why, so plaintiffs contend, the court erred in sustaining an objection, made by counsel for Mrs. Stallcup's executor based on § 491.010, to an offer of proof made by plaintiffs dealing with an alleged conversation between Berry and plaintiff Hayward Brewer. According to the offer, during the negotiations which preceded the execution and delivery of the deed of November 10, 1972, Berry stated to Brewer that the tip was included in the land to be conveyed by that deed. Plaintiffs offered to prove this conversation through the testimony of plaintiff Hayward Brewer.

This opinion is limited to those issues presented and preserved in "points relied on," and they alone need be and are considered. Pruellage v. De Seaton Corp., 380 S.W.2d 403, 405(3) (Mo.1964); Ledbetter v. Ledbetter, 547 S.W.2d 214(1) (Mo.App.1977).

Section 491.010, the Dead Man's Statute, was discussed in Flanagan v. DeLapp, 533 S.W.2d 592 (Mo. banc 1976). There the court said at p. 597:

"(§ 491.010) has three functional parts. First, it qualifies as witnesses those individuals disqualified at common law because of their interest in the outcome of the case. Next, in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, the so-called transactions proviso of the statute makes a surviving party incompetent as a witness in his own favor or in favor of one claiming under him. Under this proviso the witness is incompetent only as to those matters about which decedent could have testified if he had lived. Finally, where one of the parties to a contract is deceased, and an executor or administrator is a party to a suit involving such contract, the portion of the statute referred to as the administration proviso makes the surviving party to the contract totally incompetent as a witness except as to matters occurring after probate of the will or appointment of an administrator." 2

In the instant action Mrs. Stallcup's executor was a defendant. The fact that Mrs. Stallcup was not present when the alleged Brewer-Berry conversation took place is of no moment. "When an (executor or) administrator is a party, the mouth of the adverse living party to the contract or cause of action on trial is closed as to all matters that occurred prior to the probate of the will or the appointment of the administrator, regardless of whether or not the other party, if living, could testify relative to the same matter." Davis v. Robb, 10 S.W.2d 680, 682(4) (Mo.App.1928), quoted with approval in Flanagan, supra, 533 S.W.2d at 598.

"( T)he death of the contracting agent does exclude the surviving party who contracted with him. Williams v. Edwards, 94 Mo. 447, 7 S.W. 429; Leach v. McFadden, 110 Mo. 584, 19 S.W. 947; Hollmann v. Lange, 143 Mo. 100, 44 S.W. 752; Wendover v. Baker, 121 Mo. 273, 25 S.W. 918; Sidway v. Missouri Land & Live Stock Co., 163 Mo. 342, 63 S.W. 705; Central Bank v. Thayer, 184 Mo. 61, 82 S.W. 142; Charles Green Real Estate Co. v. Building Co., 196 Mo. 358, 93 S.W. 1111." Freeman v. Berberich, 332 Mo. 831, 60 S.W.2d 393, 400 (1933). See also State v. Jacobs, 281 S.W.2d 597, 598(1) (Mo.App.1955). If Berry's deposition had not been taken, the fact that Berry was dead would have entitled Mrs. Stallcup, under the foregoing principle, to invoke § 491.010 and thus bar Hayward Brewer from testifying to the Brewer-Berry conversation, and that would be true even if Mrs. Stallcup were still living.

Plaintiffs say that "the trial court erred in its application of § 491.010 because Berry's deposition had been taken and that plaintiff Brewer should have been allowed to testify to matters covered by Berry in his deposition."

The following factors should be noted:

1. The deposition of Berry was taken by plaintiffs and not by defendants, although there is some indication in the record that some of the defendants may have been represented by counsel at the taking of that deposition. 3

2. When the Berry deposition was taken Mrs. Stallcup was still alive. 4

3. Berry, the deponent, was Mrs. Stallcup's attorney-in-fact and was not, so far as Mrs. Stallcup was concerned, the "other party." 5

4. There was no proof that the deposition of Berry contained any testimony showing the contents of the alleged conversation between Berry and plaintiff Hayward Brewer or even showing that there was such a conversation.

Whether factor 1, factor 2, or factor 3 would be sufficient to uphold the ruling of the trial court need not be considered for the reason that factor 4 supports that ruling. When the attorney for Mrs. Stallcup's executor interposed the objection based on the Dead Man's Statute, the trial court properly prohibited Hayward Brewer, with respect to that defendant, from testifying to matters not mentioned in the testimony contained in the deposition of Berry. Allen v. Chouteau, 102 Mo. 309, 14 S.W. 869 (1890); Drummond Realty & Inv. Co. v. W. H. Thompson Trust Co., 178 S.W. 479, 482(5) (Mo.1915); Ferry v. Woody, 210 Mo.App. 98, 241 S.W. 78, 80(2) (1922); Vigeant v. Fidelity Nat. Bank & Trust Co., 239 Mo.App. 46, 188 S.W.2d 533, 537(7) (1945).

Further, under their first "point relied on," plaintiffs say that the trial court "misapplied the statute (§ 491.010) by refusing to admit testimony of Darrell Alcorn regarding whether or not it is conceded that Mr. Alcorn was an agent for (plaintiffs) in connection with the purchase of the Stallcup property. First of all, Edward H. Berry's testimony had been preserved by deposition; therefore, Mr. Alcorn should have been allowed to testify to the matters covered by the deposition."

By Rule 84.13(b) this court may not reverse any judgment "unless it finds that error was committed by the trial court against the appellant, materially affecting the merits of the action."

The "statement of facts" portion of plaintiffs' appellate brief makes no mention of Alcorn. The foregoing quotation appears in the "argument" portion of the brief. The brief contains no other reference to Alcorn or the contents of his rejected testimony.

There is nothing in plaintiffs' brief to show that Alcorn's rejected testimony, whatever it was, had anything to do with the issue of whether the tip should have been included in the description contained in the deed of November 10, 1972. Plaintiffs' brief does say that Alcorn should have been allowed to testify to the matters covered by Berry's deposition. Whether that statement is right or wrong need not be considered but Berry's deposition, at least that portion of it appearing in the transcript, although mentioning Alcorn, contains no reference to the tip or whether or not it should have been included in the description.

Plaintiffs' first point has no merit.

Plaintiffs' second "point relied on" is that the trial court erred in refusing to admit the testimony of Jesse Lewis as to a statement made to him by Mrs. Stallcup. The excluded testimony, contained in an offer of proof, was to the effect that "in the fall of 1972" Mrs. Stallcup told Lewis that she had sold "all her property and the house" to plaintiffs.

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