Chapman v. Dougherty

• Decision Date: 31 October 1885
• Citation: 87 Mo. 617
• Parties: CHAPMAN et al., Appellants, v. DOUGHERTY.
• Court: Missouri Supreme Court

87 Mo. 617

CHAPMAN et al., Appellants,

v.DOUGHERTY.

Supreme Court of Missouri.

October Term, 1885.

Appeal from Chariton Circuit Court.--HON. G. D. BURGESS, Judge.

REVERSED.

A. H. Waller and Kinley & Wallace for appellants.

(1) In a suit in ejectment on petition and general denial, every deed in the chain of title not agreed to is a matter of controversy and litigation, and in this case plaintiffs' title being claimed to be from defendant to plaintiffs' testator, Lucy A. Horsley, the only question in issue was whether the deed of Dougherty to Lucy A. Horsley was a valid contract of conveyance, and the evidence and instructions in the case, on both sides, were alone directed to that point. (2) The statute prohibited defendant, Dougherty, from testifying concerning the deed to Lucy A. Horsley, she being dead, and plaintiff being her legal representative. R. S., sec. 4010. The statute is an exact copy of the Vermont statute, and the interpretation thereof by the Supreme Court of that state is understood to be adopted by the legislature in copying it, and the court will follow the Supreme Court of Vermont in construing the section here. Skouten v. Wood, 57 Mo. 380; Hollister's Adm'r v. Young, 41 Vt. 156. (3) The evidence of defendant, Dougherty, in regard to the deed by him to Mrs. Lucy A. Horsley, deceased, concerning his intentions in making and delivering the same to James R. Horsley for her, the consideration therefor, and the conditions he imposed on Mrs. Horsley thereby, should have been excluded, the evidence showing both James R. Horsley and Mrs. Lucy A. Horsley to be dead. Looker v. Davis, 47 Mo. 140; Poe v. Domic et al., 54 Mo. 119; Martin v. Jones et al., 59 Mo. 181; Annette v. Montague, 63 Mo. 201; Angell v. Hester, 64 Mo. 142; Sitton v. Shipp, 65 Mo. 297; Ring v. Jamison, 66 Mo. 424; Hughes v. Israel et al., 73 Mo. 538; Butt's Adm'r v. Phelps, 79 Mo. 302; Wilcox v. Jackson, 51 Ia. 208; Hollister's Adm'r v. Young, 41 Vt. 156; Ins. Co. v. Wells, 53 Vt. 14.A. W. Mullins for respondent.

The “cause of action in issue and on trial” was the alleged unlawful withholding, by the defendant, of the possession of the undivided one-half of block forty-seven in the town of Keytesville, Missouri. Both parties to this controversy were and are living. The two plaintiffs, husband and wife, did testify on the trial in their own favor, and the defendant did the same for himself. The case does not come within the proviso to the first section of the witness act. 1 R. S. 1879, sec. 4010, pp. 687-8. And hence it follows that the defendant was a competent witness in his own behalf, and no error was committed by the court in admitting his evidence. Bradley v. West, 68 Mo. 69, 72, 73; Granger v. Bassett, 98 Mass. 462, 468; Manufacturer's Bank v. Schofield, 39 Vt. 590, 594.

SHERWOOD, J.

This is an action in ejectment for the undivided one-half of block forty-seven in the town of Keytesville, Chariton county; a piece of ground devised to Emma Chapman, wife of her co-plaintiff, by her mother, Lucy Ann Horsley, the grantee in a deed executed by Dougherty, the defendant. On the trial defendant admitted the existence of this deed, which was for the property in suit; that it was last in his possession, and was lost. Other testimony offered on behalf of plaintiffs showed a prima facie title in Mrs. Horsley to the premises in controversy. The controlling question in this cause, then, is whether Dougherty was a competent witness in regard to the deed just mentioned; i. e., as to the delivery or non-delivery thereof.

The provisions of the statute in relation to cases like the present are contained in these words: “Provided, that in actions where one of the original parties to the contract, or cause of action, in issue and on trial, is dead, or is shown to the court to be insane, the other party shall not be admitted to testify in his own favor.” R. S., sec. 4010. What is meant by the expression “contract or cause of action?” Judge Bliss says: “The cause of action, then, is the wrong. * * * The latter phrase * * * includes the former, for there can be no cause of action aside from the facts which constitute it; the facts show a wrong committed or threatened, and unless they do so there is no cause of action. * * * The wrong may be done by a denial of a right, or by the refusal to respond to an obligation; * * * An instance of the first is an adverse claim to the property, or the denial of an obligation.” Code Plead., sec. 113.

In our statutory ejectment all the constituent elements of title are involved: possession, right of possession, and right of property. Now, “title may be defined generally, to be the evidence of right which a person has to the possession of property.” 2 Abbott's Law Dict. 566. “Title is when a man hath lawful cause of entry into lands whereof another is seized; and it signifies also the means whereby a man comes to lands or tenements, as by feoffment, last will and testament,” etc. Jacob., p. 245. And it is elsewhere defined as “the means whereby an owner possesses his property justly, or the evidence of ownership.” Whart. Law Lex. 824. And in an action which brings the title in question, something more is involved than the actual occupation, or mere pedis possessio. It is one which also involves the justa causa possidendi. Gregory v. Kanouse, 2 N. J. L. 62. These definitions and remarks effectually dispose of the contention of defendant's counsel that the “ cause of action in issue and on trial was the alleged unlawful withholding by the defendant of the possession, ” etc. The “cause of action in issue and on trial” was of a much broader scope, since it was the title to the premises in controversy which was in issue and on trial, and, under the authorities cited, the word title includes and signifies all the means and documents which evidence and establish the right of plaintiffs to recover in the action which they brought.

All these things were put in issue and necessarily involved therein; and the defendant was one of the original parties to the contract or deed which evidenced the title whereon plaintiffs relied, without which their title could not be established or maintained, and the other party to that contract was dead; that contract or deed was thus necessarily in issue, constituting as it did the highest evidence of ownership, and consequently the most material fact which went to make up plaintiffs' cause of action; that cause of action was in issue and on trial, and without proof of the validity of that deed in consequence of a delivery thereof, plaintiffs had no standing in court. The importance of the defendant's testimony, denying, as it did, the validity of the deed by reason of the fact, to which he testified, that it had never been delivered, is, therefore, most obvious; since that testimony struck at the very foundation of plaintiffs' cause of action. Was his testimony admissible? “The reason of the statutory prohibition is the prevention of one person testifying where death has sealed the lips of his adversary.” Fulkerson v. Thornton, 68 Mo. 468. Wharton, when speaking of similar statutory prohibitions, says: “The reason of this exception is, that when there is no mutuality there should not be admissibility; i. e., when the lips of one party to a contract are closed by death, then the other party should not be heard as a witness. * * * Much, however, as the statutes may differ in words, they are the same in purpose. That purpose is to provide that when one of the parties to a litigated obligation is silenced by death, the others shall be silenced by law.” 1 Whart on Evid., sec. 466.

And this view has been reiterated by this court in various forms. Thus, Wagner, Judge, says: “The object and purpose of the statute was undoubtedly to put the two parties to a suit upon terms of substantial equality in regard to the opportunity of giving testimony. The proposition may be taken as a general one, therefore, that where parties have contracted with each other, each may be supposed to have an equal knowledge of the transaction, and both, if living and sane, are allowed to testify. But if one is precluded by death or insanity, the other is not entitled to the undue advantage of being a witness in his own case.” Looker v. Davis, 47 Mo. 140. And in Stanton v. Ryan, 41 Mo. 510, where surviving partners brought an action upon a quantum meruit, and the defendant set up as a defence a special contract with the deceased partner, the remaining partners were permitted to testify touching the facts constituting their cause of action, and so also was the defendant; but he was not permitted to testify respecting the special contract, which, if enforced, would, it seems, have defeated the action of the plaintiffs; and this ruling was affirmed by this court, Wagner, Judge, remarking: “The suit was not instituted on the contract, it was denied that any contract existed; the...