Carter v. Davis

• Decision Date: 30 April 1884
• Citation: 81 Mo. 668
• Parties: CARTER v. DAVIS et al., Appellants.
• Court: Missouri Supreme Court

81 Mo. 668

CARTER

v.DAVIS et al., Appellants.

Supreme Court of Missouri.

April Term, 1884.

Appeal from Jasper Circuit Court.--HON. JOSEPH CRAVENS, Judge.

REVERSED.

C. A. Winslow and L. P. Cunningham for appellant.

The court committed error in permitting, against defendant's objection, the copy of the deposition of Corn to be read in evidence. The original had not been returned or filed in the cause, and secondary evidence of its contents was inadmissible. Mincke v. Skinner, 44 Mo. 92; Finney v. St. Charles College, 15 Mo. 266; R. S., § 2157.

E. J. Montague for respondent, cited Rhodes v. Outcalt, 48 Mo. 367.

RAY, J.

This suit was commenced in the circuit court of Newton county, Missouri, February, 1877, but the venue thereof was afterwards changed, by consent, to the circuit court of Jasper county, where the cause was tried. The controversy is about a certain forty acres of land, situated in said Newton county, described as the southeast quarter of the northwest quarter of section 20, township 27, range 32, otherwise known as the “Johnson forty.” The defendants are in possession thereof, claiming it adversely to the plaintiff.

Samuel B. Corn, is the common source of title. Said Corn, on July, 20th, 1874, mortgaged the land in question with other lands, to plaintiff, with a power of sale in the mortgagee to secure his note of that date to plaintiff for the sum of $2,500. This mortgage was filed for record in Jasper county August 1st, 1874, but was not filed for record in Newton county where the “Johnson forty” (the land in question) is situated, until September 11th, 1875. Plaintiff, Carter, as such mortgagee, duly advertised the land for sale and at the sale thereof, on June 17th, 1876, E. J. Montague became the purchaser thereof, and received from plaintiff a deed therefor, dated June 27th, 1876. Said Montague and wife, about that time, conveyed said land, by quit-claim deed, back to the plaintiff. Said Montague was acting as attorney for plaintiff, in and about the matter, and testifies that no money was in fact paid by either himself or the plaintiff.

June 11th, 1875, Corn and wife executed a deed of trust on the land, with a large lot of other lands, to Edmund T. Allen, to secure some seventy-two notes, aggregating about $8,000 in value, due some nine different business firms in St. Louis, Chicago and New York. The following clause was interlined in said deed of trust. “The above property, being subject to several incumbrances, duly recorded”--but the evidence showed that the clause was inserted prior to the execution of said deed. This deed of trust was recorded in Newton county, July 9th, 1875, or two months prior to the recording of the plaintiff's mortgage. The defendant, Davis, purchased at a sale of said land by said trustee, under said deed of trust to Allen, on May 26th, 1876, and obtained a deed therefor. Said Corn and wife, on September 7th, 1875, also, conveyed the land, by quit-claim deed, to the defendant, Cassil, who paid therefor, as he testifies, a small or nominal consideration. Defendant, Cassil, conveyed the land to defendant, Davis, by quit-claim deed, dated April 1st, 1876. The evidence did not disclose what interest defendant, Cahn, had in the land, but the answer admitted a conveyance by defendant, Davis, of an interest therein to his co-defendants. The petition charges that the trustee and beneficiaries in the deed of trust to Allen and the defendants, all acquired their interest in the land in suit, subject to the plaintiff's said mortgage from Corn and wife, and with actual notice thereof. The relief sought by this action is to postpone the lien of the Allen deed of trust on the forty acres in controversy, to the lien thereon of the mortgage to the plaintiff; to set aside the deed of the trustee to defendant, Davis, for said forty acres, and to divest the defendants of all title thereto, and to vest the same in the plaintiff. The other averments thereof we deem it unnecessary to set out.

The answer, so far as we deem it material to notice, denies all allegations in the petition of any notice by defendants of plaintiff's said mortgage, and sets up that they are innocent purchasers for value, having first recorded the deed under which they claim, and paid the purchase money, without notice of plaintiff's claim. The circuit court found the issues for the plaintiff, and the defendants have appealed to this court from the judgment decreeing the relief prayed for. As the Allen deed of trust, under which the defendants claim, was first of record, it is prima facie superior to the mortgage of the plaintiff, and the main question in the case is, as to the actual knowledge of those claiming under said Allen deed of trust.

Upon the trial the court permitted the plaintiff to read, against the objection of defendant, a copy of the deposition of said S. B. Corn, under the following circumstances, as shown by the bill of exceptions:

“Plaintiff by his attorney, Judge Montague, then proposed to read, what he stated to be an abstract of the deposition of Samuel B. Corn, taken by defendants, having previously served notice on defendants, requiring them to produce said deposition upon the trial, when defendants' attorney presented a copy of said deposition, which was read in evidence by plaintiff's attorney as plaintiff's testimony. Defendants objected because the original deposition had never been filed in the cause, and never was a part of the record in the cause, and the original deposition was the best and only evidence of its contents. All these objections were overruled by the court, to which defendants duly excepted at the time. It was admitted that the original deposition was never filed in the cause, nor among the papers in the cause, but the last known of it was when the same was completed by the notary public in Pennsylvania, who took it on the 31st of July, 1877.”

The action of the court, in this behalf, is pressed upon us as error for which the judgment should be reserved. Out statute, Revision 1879, chapter 26, page 352, provides, that any party to a suit, pending in any court in this State, may obtain the deposition of any witness to be used in such suit, conditionally. § 2130. If the witness, as in this case, resides out of the State, the party desiring his testimony, may sue out of the court in which the suit is pending, or out of the office of the clerk thereof, a commission to take the deposition of the witness. § 2131. The statute specifies the officers, by and before whom such deposition may be taken. § 2133. The commission authorizes and empowers the officer to cause to come before him, such person or persons as shall be named to him, by the parties suing for the same, and commands such officer to examine such person, touching his knowledge of anything relating to the matter in controversy, and to reduce such examination to writing and return the same, annexed to the commission, to the court wherein, or the justice before whom the action is pending, with all convenient speed. § 2135. Section 2138 requires notice in writing of the time and place of taking such deposition to be given to the adverse party. By section 2151, it is required that to every deposition or examination, taken by virtue of this law, shall be appended the certificate of the...