Brown v. Patterson

• Decision Date: 23 December 1909
• Citation: 224 Mo. 639,124 S.W. 1
• Parties: BROWN v. PATTERSON.
• Court: Missouri Supreme Court

124 S.W. 1

224 Mo. 639

BROWN v. PATTERSON.

Supreme Court of Missouri. Division No. 1.

December 23, 1909.

1. WITNESSES (§ 144) — COMPETENCY — TRANSACTIONS WITH DECEASED PERSONS.

Under Rev. St. 1899, § 4652 (Ann. St. 1906, p. 2520), relating to the competency of witnesses, a party in ejectment claiming title through a deceased grantor may not testify as to declarations made by the grantor while in possession of the adjacent land subsequently sold to the adverse party as to the boundary line between the tracts.

2. EVIDENCE (§ 230) — ADMISSIONS BY GRANTOR — ADMISSIBILITY AS AGAINST GRANTEE.

Admissions made by one in possession of real estate as to his claims may be proved by third persons as against his subsequent purchaser.

3. ESTOPPEL (§ 98) — PERSONS AFFECTED — SUBSEQUENT PURCHASERS.

Where an owner conveying a part of his land knew the true boundary between the land conveyed and the land retained by the deed, and stated that a certain strip was included therein, and the grantee, with the knowledge of the grantor, took possession of such strip and made improvements thereon, a subsequent purchaser from the grantor of the part retained was estopped from denying that the strip was conveyed to the grantee.

4. TRIAL (§ 261) — INSTRUCTIONS — REQUESTS — SUFFICIENCY.

Where the court in its instructions ignored an issue, a requested charge on such issue, though erroneous, was sufficient to show that he was relying thereon.

5. WITNESSES (§ 160) — COMPETENCY — HUSBAND AND WIFE.

At common law and under Rev. St. 1899, § 4656 (Ann. St. 1906, p. 2536), authorizing a married woman to testify in enumerated cases, the widow in a suit between strangers may testify as to conversations between the deceased husband and a third person under whom a party to the suit claims, had in her presence, and as to things which she knew of her own knowledge and without conversation with her deceased husband.

6. WITNESSES (§ 53) — COMPETENCY — HUSBAND AND WIFE — STATUTE.

The proviso in Rev. St. 1899, § 4656 (Ann. St. 1906, p. 2536), that nothing in the section shall be construed to authorize any married woman while the relation exists or subsequently to testify to any conversations of her husband, applies only to the cases enumerated in the section in which the wife may testify, and does not disqualify the wife to testify in cases not so enumerated.

7. STATUTES (§ 228) — CONSTRUCTION — "PROVISOS."

The office of a proviso is to restrict or explain the general terms of the act of which it forms a part, and not to add to the body of the substantive law nor to take anything therefrom. Quoting 6 Words and Phrases, title "Proviso."

Appeal from Circuit Court, Pettis County; Louis Hoffman, Judge.

Action by William R. Brown against H. S. Patterson. From a judgment for plaintiff, defendant appeals. Reversed and remanded.

Sangree & Bohling, for appellant. Barnett & Barnett, for respondent.

GRAVES, J.

Action in ejectment for 2½ acres of land in Pettis county. Petition in usual form placing ouster as of April 1, 1903, and alleging damages in the sum of $100. The answer pleaded (1) general denial, (2) estoppel, and (3) the ten-year statute of limitations. Reply was general denial. A trial before a jury resulted in a verdict for plaintiff for possession together with damages in the sum of one dollar.

"Whereupon it is ordered, adjudged and decreed by the court that the plaintiff have and recover of the defendant the possession of the real estate described in the petition as follows, to wit: two and one-half (2½) acres off of the north side of the northwest quarter of the southwest quarter of section 19, township 48, range 20, being a strip of land of uniform width, and its length east and west being the distance across said quarter of said quarter section in Pettis county, Missouri. And that plaintiff have and recover of the defendant the sum of one dollar for his damages together with the costs of this suit. It is ordered and adjudged that the plaintiff have a writ of possession commanding the sheriff to deliver to plaintiff the possession of said premises, and commanding him to levy and collect the said damages and costs from defendant." From such judgment the defendant, after unsuccessful motion for new trial in due form, appealed to this court.

George Harryman was the admitted common source of title. The strip in dispute is fully shown by the following plat introduced in evidence:

NOTE: OPINION CONTAINING TABLE OR OTHER DATA THAT IS NOT VIEWABLE

In other words, the land in dispute is about 2½ acres off of the north side of the northwest quarter of the southwest quarter of section 19, township 48, range 20, in Pettis county, Mo.

In 1884 George S. Harryman was the owner of both tracts of land. That is to say he owned the tract marked on the plat as belonging to the plaintiff as well as the tract marked on the plat as belonging to the defendant, both in said section 19, aforesaid. It will be noticed from the plat there is a jog in the lines of the land lying respectively east and west of the range line. This jog is 76 feet. In 1884 one Lewis Brummett owned the land indicated as being in his name on the plat above. On May 2, 1884, Brummett bought from Harryman the land now claimed by Patterson. Brummett's land was in the one range, and the land to be bought in the other was the jog of 76 feet. It is alleged and attempted to be proven that, when Brummett bought the land now claimed by Patterson, it was agreed that the south line thereof should be an extension toward the east of the south line of the land owned by Brummett in range 21, which of course was 76 feet south of the real line of the land in range 20. However the deed from Harryman and wife described the southwest quarter of the northwest quarter of section 19, township 48, range 20. Brummett immediately took possession not only of the part described in the deed but the strip in dispute as well. It also appears that under this oral agreement Brummett was to give 15 feet off of the south side of the strip for a road, and Harryman, his grantor, was to give a like strip off of the remaining portion of his land to the south thereof. This agreement seems to have been executed, for it appears that at least partial fences were erected for this road and the same was used as a road. Brummett's title passed to defendant Patterson, and Harryman's title through mesne conveyances passed to the plaintiff Brown in 1901. It also appears that none of the mesne conveyancers actually claimed the strip in dispute, although by deed they conveyed it. The questions now urged involve the admissibility of certain excluded evidence and the giving and refusing of certain instructions, which can be better noticed in the course of the opinion.

1. Whilst Harryman was yet in the possession of the 40 acres now owned by Brown, it is alleged he had a conversation with Patterson, the defendant, in which he stated to Patterson where the south boundary line of the 40 now owned by Patterson was, and this declaration of the party in possession was excluded by the court in so far as the witness Patterson is concerned. Admissions made by Harryman to other witnesses, and also a letter from Harryman, indicating the line was where defendant now claims it to be, and that such line had been previously agreed upon and the strip of two and one-half acres sold to Brummett, at date of deed, was admitted. It is not disputed by the learned counsel for plaintiff that the admissions of a party in possession can be proved in so far as such admissions tend to show his claims or disclaims, or in other words, in so far as they go to the extent and character of the title under which he holds possession. Neither do they deny that such admissions, if made to third persons, may not be used as against the subsequent purchasers of the property claimed under the person making such admissions. The defendant by proper questions tried to prove these admissions by the defendant himself, over and above certain admissions proved by third parties. This proof the court excluded.

We are of opinion that the court was correct in excluding the testimony of Patterson upon this point, it being shown that Harryman was dead at date of trial. This construction given to section 4652, Rev. St. 1899 (Ann. St. 1906, p. 2520) by the court bears out the judgment of the court below. Patterson was a subsequent grantee from Brummett. Brummett and Harryman were the contract makers. Patterson was a party to the suit and was holding under the alleged agreement previously had with Harryman and Brummett. Section 4652, supra, closed his lips upon the death of Harryman. Patterson was not a stranger to the alleged contract with Brummett. He was Brummett's subsequent grantee and assignee of Brummett's claim against Harryman, which claim of Brummett was the question at issue and on trial, although then held by Patterson.

The statute mentioned disqualified Patterson, and as the trial court admitted other admissions of Harryman, whilst he was in possession, from witnesses who were third persons, in this regard the court could not have been expected to go further. In other words whilst the third parties were competent to testify to the admissions of Harryman, whilst in possession of the land south of that now owned by defendant, it does not follow that a privy to such contract, or the beneficiary of such contract or admission can testify when it is shown that the opposing party is dead. The cases cited by defendant are easily distinguished upon principle. The statute itself is too familiar to the bar of the state to require reproduction here. This contention of the defendant will be ruled against him.

2. Defendant claims that there is flagrant error in the first instruction given in behalf of the plaintiff. The instruction reads: "The court instructs the jury that, under the undisputed evidence in this case, the plaintiff is the owner of the strip of land in controversy,...