Brown v. Patterson

• Decision Date: 23 December 1909
• Parties: WILLIAM R. BROWN v. H. S. PATTERSON, Appellant
• Court: Missouri Supreme Court

124 S.W. 1

224 Mo. 639

WILLIAM R. BROWN v. H. S. PATTERSON, Appellant

Supreme Court of Missouri, First Division

December 23, 1909

Appeal from Pettis Circuit Court. -- Hon. Louis Hoffman, Judge.

Reversed and remanded.

Sangree & Bohling and Wm. D. Steele for appellant.

(1) The court erred in excluding legal evidence offered by the defendant. 1st. The declarations of Harryman, while still in the possession of the plaintiff's forty, to the defendant, as to the boundary line between the two tracts were admissible. Declarations of those in possession of land in respect to the boundary lines or the extent of their occupation are admissible in evidence as part of the res gestae. Brewer v. Brewer, 19 Ala. 481; Norton v Pettibone, 7 Conn. 319; Davis v. Campbell, 1 Ired. (N. C.) 428; Abeel v. Van Gelder, 36 N.Y. 513; Wynn v. Corey, 48 Mo. 346; Babb v. Ellis, 76 Mo. 459; Long v. McDow, 87 Mo. 197; Bank v Ragsdale, 171 Mo. 168; Whitaker v. Whitaker, 157 Mo. 342. Our statute concerning witnesses has no application to admission of the deceased person against interest, made to witnesses who are strangers to the contract and otherwise competent to testify. Klofer v. Levi, 33 Mo.App. 322; Martin v. Jones, 59 Mo. 181; Looker v. Davis, 47 Mo. 140; Eyermann v. Piron, 151 Mo. 107. 2nd. The court erred in excluding the deposition of Mrs. Hocker. Smith v. Potter, 27 Vt. 304; Hough v. Blythe, 20 Ind. 24; Elswick v. Com., 13 Bush (Ky.) 155; Ryan v. Follansbee, 47 N.H. 100; Connell v. Vanartsdalen, 4 Pa. St. 364; Powell v. Powell, 114 Ill. 329; Spalding v. Albin, 66 Vt. 148; Scroggin v. Holland, 16 Mo. 422; Funk v. Dillon, 21 Mo. 294; Lynn v. Hockaday, 162 Mo. 111; Shanklin v. McCracken, 140 Mo. 348; Stober v. McCarter, 4 Ohio St. 513; White v. Perry, 14 W.Va. 66; Spivey v. Platon, 29 Ark. 603; Litchfield v. Merritt, 102 Mass. 520; Pratt v. Delavan, 17 Iowa 307; Stuhmuller v. Ewing, 39 Miss. 447; Griffin v. Smith, 45 Ind. 366; Floyd v. Miller, 61 Ind. 224; French v. Ware, 65 Vt. 338. (2) The court erred in giving erroneous instructions on behalf of the plaintiff. 1st. The first instruction eliminated the defense of an agreed line, and estoppel raised in the answer, from the consideration of the jury. Barnes v. Allison, 166 Mo. 103; Seiberling v. Tipton, 113 Mo. 381; Bartlett v. Brown, 121 Mo. 353; Blair v. Smith, 16 Mo. 273; Golterman v. Shiermeyer, 111 Mo. 404; Turner v. Baker, 64 Mo. 218; Lindell v. McLaughlin, 30 Mo. 28; Dolde v. Vodicka, 49 Mo. 98; Rutherford v. Tracy, 48 Mo. 325; Shaffer v. Detie, 191 Mo. 392. 2nd. The court erred in refusing the defendant's two last instructions.

Barnett & Barnett for respondent.

(1) The court did not err in excluding the conversations between Harryman and the defendant Patterson, as to an alleged agreement fixing the boundary line between said parties, being the boundary line in dispute. It is attempted to bind the plaintiff by some verbal agreement made with Harryman, he being the plaintiff's grantor and the party under whom the plaintiff claims. The defendant is not a competent witness to prove such an agreement for the reason that Harryman, the other party to the transaction is dead, and the living party therefore is incompetent to testify as to such transaction. It is not a question, as appellant's attorneys seem to think, as to whether the declarations of Harryman are admissible, but the question is, is the defendant, being the opposite party to said contract, permitted to testify as to these declarations when Harryman is dead? The statute clearly excludes him. Sec. 4652, R. S. 1899. The provisions of this section extend to every occasion in which such contract or cause of action may be involved. Baker v. Reed, 162 Mo. 341; Warfield v. Hume, 91 Mo.App. 541; Hughes v. Israel, 73 Mo. 538; Chapman v. Dougherty, 87 Mo. 617; Rice v. Shipley, 159 Mo. 399; In re Imboden's Estate, 111 Mo.App. 220; Green Real Estate Co. v. St. Louis Mutual House Building Co., 196 Mo. 358; Miller v. Slupsky, 158 Mo. 643; Johnson v. Johnson, 173 Mo. 91. (a) The authorities cited by appellant do not support or tend to support his contention; such authorities only establish the general doctrine that Harryman's declarations are admissible and are not mere hearsay, but do not tend to support the proposition that defendant Patterson is a competent witness to prove such declarations. On the contrary, such authorities hold, that such declarations may be proved by strangers to the contract, but not by the party to the contract or by a party to the suit who claims under such contract. (2) The court did not err in excluding the deposition of Mrs. Hocker who was the wife of Louis Brummett, one of the parties to the alleged contract about which Mrs. Hocker testifies in her deposition and the party under whom the defendant Patterson claims. This witness is in the same position as though Mr. Brummett was defendant instead of Mr. Patterson, his grantee, and his wife is not a competent witness. The proviso to Sec. 4656, R. S. 1899, was intended to apply to admissions and conversations in all cases, whether the husband was a party or not, and clearly excludes Mrs. Hocker, who was the wife of Brummett. The conversation to which she testifies related to the alleged contract between her husband and Harryman, in which she claims to have been present with her husband. Moore v. Wingate, 53 Mo. 398; Holman v. Bachus, 73 Mo. 49; Waddle v. McWilliams, 21 Mo.App. 298; Johnson v. Quarles, 46 Mo. 423; Johnson v. Burkes, 103 Mo.App. 227. (3) The court did not err in giving instruction 1 on behalf of the plaintiff. There was not one particle of evidence in the case supporting the defense pleaded to the effect that the said boundary line had been established by an agreement. If such evidence had been admitted, still the instruction would have been proper because there is no question of a disputed boundary in this case. It is admitted that plaintiff has the paper title to the strip in question and that the boundary line is where we claim it to be, independent of any agreement. Reynolds v. Hood, 209 Mo. 619; Turner v. Baker, 64 Mo. 240; Acton v. Dooley, 74 Mo. 68; Barnes v. Allison, 166 Mo. 105.

GRAVES, J. Valliant, J., concurs; Woodson, J., concurs in result and in the opinion, except he expresses no opinion on the Holman and Wingate cases discussed in this opinion; Lamm, P. J., does not sit.

OPINION

GRAVES, J.

Action in ejectment for two and one-half acres of land in Pettis county. Petition in usual form, placing ouster as of April 1st, 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 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:

[SEE ILLUSTRATION IN ORIGINAL]

In other words, the land in dispute is about two and one-half acres off of the north side of the northwest quarter of the southwest quarter of section 19, township 48, range 20, in Pettis county, Missouri.

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 seventy-six 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 seventy-six 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 seventy-six 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 nineteen, 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 fifteen 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...