O'Bryan v. Allen

• Decision Date: 07 May 1888
• Citation: 95 Mo. 68,8 S.W. 225
• Court: Missouri Supreme Court
• Parties: O'BRYAN et al. v. ALLEN et al.

8 S.W. 225

95 Mo. 68

O'BRYAN et al. v. ALLEN et al.

Supreme Court of Missouri.

May 7, 1888.

1. DOWER — ACTION FOR — DECREE IN FAVOR OF HEIRS.

In an action for the assignment of dower, plaintiff's children, the heirs of her deceased husband, were made defendants, but did not appear. The other defendants appeared and answered. Held, that a decree investing title in the heirs of plaintiff's deceased husband, as against their co-defendants, was erroneous, they not having claimed such relief.

2. WITNESS — CONTRACT WITH DECEDENT — COMPETENCY OF WIDOW TO TESTIFY.

Plaintiff, with her present husband, brought an action for dower, and for specific performance of an alleged oral gift of land to her former husband from his father. Both the father and son were dead. Held that, the widow being the real party in interest in the suit, and not a party to the original contract, was a competent witness, under Rev. St. Mo. § 4010, providing that, in an action where one of the original parties to the contract is dead, the other party shall not testify in his own favor.

3. SAME — COMPETENCY — PARTY TO SUIT.

In an action for dower and specific performance of an alleged oral gift of land to plaintiff's husband from his father, where the heirs of the deceased father and son are defendants, the husband of plaintiff's daughter, an heir to an undivided interest in the land either under her father or grandfather, is a competent witness for plaintiff, being an interested party to the suit, under Rev. St. Mo. § 4012, providing that a party may compel an adverse party to testify in his behalf.

4. SAME — COMPETENCY — FAILURE TO WITHDRAW FROM COURT-ROOM.

Evidence will not be excluded because a witness remained in the court-room after an order of court directing all witnesses to withdraw until called, where it appears that such an act of the witness was not the fault of the party calling him.

Appeal from circuit court, Cooper county; E. I. EDWARDS, Judge.

Action by Harriet G. O'Bryan and her present husband for an assignment of dower and specific performance of an alleged oral gift of land to her former husband by his father. Rev. St. Mo. § 4010, provides that, in an action where one of the original parties to the contract in issue is dead, the other party shall not testify in his own favor. Rev. St. Mo. § 4012, provides that any party to an action may compel the adverse party, or any person, for whose adverse benefit such action is instituted or defended, to testify as a witness in his behalf, subject to cross-examination by the opposite party.

John R. Walker and Douglas & Scudder, for appellants. Cosgrove & Johnston, for respondents.

BLACK, J.

This was a suit by Harriet G. O'Bryan and her present husband to have dower assigned in 200 acres of land. The claim is that Henry Bell made a verbal gift of the land to his son Noah D. Bell, the former husband of the plaintiff Harriet. The three children of Noah D. Bell and the said Harriet are made defendants, but they do not make answer. The other defendants are the other heirs of Henry Bell, he being also dead when this suit was commenced. The court made a decree divesting the defendants, other than the three children of Noah D. Bell, of all title, and invested the same in these three children, and then caused dower to be assigned.

1. So far as the decree invests the title in these three children, it is erroneous. They ask and claim no such relief. Indeed, the evidence offered, but excluded, shows that they are entitled to no such relief. This portion of the prayer of the petition should be disregarded. If the plaintiff should be entitled to dower, it is not essential that title should be decreed in the heirs of Noah D. Bell. She can have her dower assigned without any such a decree, and let the defendants settle the title between themselves, as they see fit, as they seem do be doing by an amicable partition suit.

2. The objection made by the defendant that the plaintiff Mrs. O'Bryan was incompetent to testify in her own behalf was properly overruled. She was not one of the original parties to the contract or cause of action on trial. The original parties to that contract were Henry Bell and his son Noah D. Bell, both of whom are dead. Though she is a married woman, and her husband is a party to this suit, still she is the real party in interest, and may testify. Owen v. Brockschmidt, 54 Mo. 288. It is not claimed that she can testify as to conversations of her former husband made to herself or third parties. Such conversations and admissions are to be excluded, if offered.

3. Objection was also made, by the defendants who filed answer, to the evidence of Henry M. Thomson, one of the defendants, when called as a witness by the plaintiffs, on the ground that he was the husband of his co-defendant Clara. Mrs. Clara Thomson is a daughter of Noah D. Bell; and, if this property belonged to her father, she inherited one-third, and, if not, then she inherited one-ninth, interest in this and other property from her grandfather; so that, in...