Cartwright v. Culver

• Decision Date: 31 October 1881
• Citation: 74 Mo. 179
• Parties: CARTWRIGHT v. CULVER, Appellant.
• Court: Missouri Supreme Court

74 Mo. 179

CARTWRIGHT

v.CULVER, Appellant.

Supreme Court of Missouri.

October Term, 1881.

Appeal from Buchanan Circuit Court.--HON. JOS. P. GRUBB, Judge.

AFFIRMED.

Allen H. Vories and James W. Boyd for appellant.

The discretion of the trial court as to granting or refusing the continuance, was unsoundly exercised, to the prejudice of the appellant. Carpenter v. Meyers, 32 Mo. 213; State v. Shreve, 39 Mo. 90; State v. Klinger, 43 Mo. 127; Frederick v. Rice, 46 Mo. 24. There was a failure of consideration for the notes. Appellant got neither title nor possession of the land for which they were given. Jones v. Shaver, 6 Mo. 642; Wellman v. Dismukes, 42 Mo. 101; Gamache v. Grimm, 23 Mo. 38; Morrison v. Edgar, 16 Mo. 411. The verdict of the jury is fatally defective in not finding on the two notes separately. Mooney v. Kennett, 19 Mo. 551; Clark v. H. & St. Jo. R. R. Co., 36 Mo. 202; Pitts v. Fugate, 41 Mo. 405; State v. Dulle, 45 Mo. 269; Brownell v. Pacific R. R. Co., 47 Mo. 239; Bigelow v. N. M. R. R. Co., 48 Mo. 510; Brady v. Connelly, 52 Mo. 19.

Doniphan & Reed for respondent.

The ownership of land cannot be proven by a mere verbal declaration. A defect of title, where the grantee of land is in possession under a warranty deed, cannot be set up as a defense to an action for the purchase price. Mitchell v. McMullen, 59 Mo. 252; Wheeler v. Standley, 50 Mo. 510; Key v. Jennings, 66 Mo. 356; Pershing v. Canfield, 70 Mo. 140. A separate assessment on each cause of action is required in order that the court may know how the issues were found and what amount was assessed on each count. Brownell v. Pacific R. R. Co., 47 Mo. 243; Mooney v. Kennett, 19 Mo. 554; State v. Dulle, 45 Mo. 269. The verdict in this case for the aggregate of both notes could have inflicted no possible injustice upon defendant. Sweet v. Maupin, 65 Mo. 69.

HENRY, J.

This suit originated before a justice of the peace on two notes executed by defendant and J. M. Shepherd, for $50 each, payable to plaintiff's intestate. They were given for the balance of the purchase money of a tract of land, and the defense relied upon was, that the vendor had no title, and induced Shepherd to purchase the land, by fraudulently and falsely representing that he had, and that plaintiff was insolvent, and Shepherd had not, nor ever had, possession of the land. From a judgment in favor of defendant, plaintiff appealed to the circuit court, in which a judgment was rendered for plaintiff in accordance with the verdict for the aggregate amount of the two notes and interest, from which defendant has appealed to this court.

An application for a continuance, made by defendant, at the term of the court at which the trial was had, was overruled, and defendant contends that it should have been granted. The deposition of one Callahan had been taken in defendant's behalf, which, on motion of plaintiff, was suppressed, and the continuance was asked on account of the suppression of the deposition, and the absence of witness, then a resident of the state of Kansas.

1. PRACTICE: continuance; witness cannot testify to a conclusion of law.

The testimony of said witness, contained in the suppressed deposition, was, that he knew the land in question, once owned it, and never made a deed conveying it to plaintiff's intestate; that witness owned the land four or five years ago. This evidence was inadmissible if witness had been present in court to testify. Parol evidence is admissible to prove a title to real estate in some cases--for instance a title acquired by adverse possession continued until the statute of limitations has barred the former legal owner, but in an affidavit for a continuance, if that is the kind of title the absent witness is to testify to, the facts which establish the title are to be proved by the witness, and he cannot testify to a conclusion of law. That he has or has not a title, in such a case, is a conclusion of law from the facts.

2. _____: ______: real property: want of title no defense to suit for purchase money, when.

There is another ground upon which we may sustain the refusal to grant the continuance. The jury found that no fraud was perpetrated by plaintiff's intestate to induce Shepherd to purchase the land, and that the purchaser was in possession of the land; and under the decisions of this court, it was wholly immaterial in such case whether the vendor has a title or not. A purchaser who takes a deed with covenants of warranty and is placed in the possession of the land, cannot, in the absence of fraud, retain possession of the land, and defend a suit on the notes for the purchase money, on the ground that his vendor had no title and is insolvent. If such a defense were permitted, he might defeat a recovery of the purchase money, and yet never be disturbed in his possession of the land. Mitchell v. McMullen, 59 Mo. 252; Wheeler v. Standley, 50 Mo. 511; Connor v. Eddy, 25 Mo. 75, and to the same effect cases will be found in 66 Mo. 356, and 70 Mo. 140. The question of the fraud of the vendor and the possession of the vendee, were submitted by instructions in conformity with the foregoing authorities. Nor did the court err in declaring that the burden of proving the alleged fraud rested upon def...