Conrey v. Pratt

• Decision Date: 28 February 1913
• Citation: 154 S.W. 749,248 Mo. 576
• Parties: CONREY v. PRATT et al.
• Court: Missouri Supreme Court

154 S.W. 749

248 Mo. 576

CONREY v. PRATT et al.

Supreme Court of Missouri, Division No. 1.

February 28, 1913.

Rehearing Denied March 15, 1913.

1. COURTS (§ 231) — SUPREME COURT — ACTIONS INVOLVING TITLE TO LAND.

Where the cancellation of a deed of trust is sought on the ground of fraud, the title to land is directly in issue, and the jurisdiction of an appeal vested exclusively by the Constitution in the Supreme Court.

2. JURY (§ 13) — RIGHT TO TRIAL BY JURY — EQUITABLE ACTIONS.

Where a suit to foreclose a deed of trust was defended on the ground of fraud and a cancellation of the deed of trust asked, the action was converted into an equitable one, which the court might have tried without a jury.

3. ESTOPPEL (§ 45) — BY DEED — AFTER-ACQUIRED TITLE.

Under Rev. St. 1899, § 901, which was in force in 1904, providing that no covenant expressed or implied in a deed by a husband and wife should bind the wife or her heirs except so far as might be necessary effectually to convey from her and her heirs all right, title, and interest expressed to be conveyed therein, a deed of trust executed in 1904 passed, as against the wife, only the estate or interest then vested in her, and where she had no interest, but subsequently purchased the land, the after-acquired title did not pass under the covenant of warranty, notwithstanding Rev. St. 1909, § 2871, providing that where a grantor by the terms of the deed undertakes to convey an indefeasible estate in fee simple absolute, and shall not have the legal title, but shall afterward acquire it, the subsequently acquired estate shall pass to the grantee, since that section is limited to deeds strictly within its terms.

4. WITNESSES (§ 181) — COMPETENCY — TRANSACTION WITH DECEDENT.

The statute disabling a witness to testify under certain circumstances where the other party to the cause of action or contract is dead excludes such persons as witnesses only in their own behalf or in behalf of those in privity with them against the objection of the adverse party; and, if not objected to or called by the other side, the witness may testify.

Appeal from Circuit Court, Lawrence County; F. C. Johnston, Judge.

Action by John E. Conrey against Mary B. Pratt and others. From a judgment for plaintiff, defendants appeal. Reversed and remanded.

The petition filed to the March term, 1909, of the circuit court of Lawrence county alleges: That on May 12, 1904, the defendant Mary B. Pratt, with her husband, C. N. Pratt, then living, but dead at the time of the filing of this suit, executed the following promissory note: "$63.70. Monett, Mo. May 12th, 1904. Thirty-five days after date we promise to pay to the order of John E. Conrey Sixty-three and 70-100 Dollars at the rate of 8 per cent per annum from date. Value received. C. N. Pratt. Mary B. Pratt." That, to secure the payment thereof, she joined her husband in a deed of trust of the same date on 2 acres of land, except 16 feet reserved on the west side for a public road. That the debt and interest evidenced by said note thus secured are wholly unpaid. That defendant Mary B. Pratt is the actual tenant and occupier of said real estate described in the trust deed. Defendant then prays judgment for the amount due, and for the sale of the real estate to satisfy such judgment, and that all equity of redemption in the defendant be foreclosed, and for general relief. The answer of defendant Mary B. Pratt admits that her husband, C. N. Pratt, now deceased, signed a certain promissory note, as in plaintiff's petition alleged, and states that she signed the same as surety; that she was moved by the fraudulent misrepresentation of plaintiff as to its contents to join her husband in a deed of trust to secure said note; that the false statement on which she relied was that the deed of trust did not involve the land, but was only a chattel mortgage for some improvements located on said land; that plaintiff well knew that neither defendant nor her husband had any title to the land described in his petition; that the title to said land then and for a long time prior was vested in one H. S. Zenor, who lived in St. Louis county, Mo.; that on the 1st day of June, 1907, her husband, C. N. Pratt, died without any title to said land; that after the death of defendant's husband, and about four years after the said deed of trust and note had been given, she received from a fraternal insurance organization the sum of $2,000; that with part of said money she bought the premises described in plaintiff's petition, and received a warranty deed therefor on the 3d day of July, 1907, and never had any title to it prior to that date; that the note given by her husband to plaintiff and signed by herself, as above stated, was without consideration, wherefore she prayed the note and deed of trust be set aside and for naught held. The reply admitted that the defendant Mary B. Pratt did not have the legal title to the land when she became a party to the note of her husband to plaintiff, and that she did acquire the land as stated in her answer, denied that she was the surety of her husband on the note given to the plaintiff, and denied that she was misled or deceived in the matter of executing the deed of trust, and prayed for judgment as in the petition. To support the affirmative defense set up in her answer, the defendant gave evidence that herself and husband were parties to a former note and deed of trust given to plaintiff, which was drawn up and prepared for their signatures by plaintiff's attorney (one Maher), who was also a notary public; that at the time of the execution of that instrument defendant Mary B. Pratt observed that it embraced land, and refused to sign it on that account. She states that the said Maher "took particular pains to explain to me that it did not involve land in any way whatever, it was to only cover the building on it." She was then asked the following questions: "* * * Q. That is when you signed this? A. Yes, sir. Q. This deed of trust? A. Yes, sir. Q. The explanation you have given there was the inducement to you to sign it? A. Yes, sir." These answers were stricken out by the court over defendant's objection and exception at the time. She thereupon called the plaintiff to testify, who admitted that Maher was his brother-in-law, and had been employed by him to draw up the instrument executed by defendant and her husband, and also a former chattel mortgage; but stated he had never given Maher any authority to make representations in his behalf, and that he (plaintiff) was present when both instruments were drawn up.

On the request of plaintiff's attorney, and over the objection and exception of the defendant, the court struck out the testimony of plaintiff, although the record shows the plaintiff admitted he had employed Maher to draw the former chattel mortgage and deed of trust, and that he was present at the time when he (Maher) procured the signature of defendant to both instruments. Defendant sought to prove by the plaintiff that at the time he took the deed of trust described in his petition he knew the defendant had no interest in the land. This the court refused, but permitted him to testify that he was present when the deed of trust was executed, and that the deed of trust in suit was taken in lieu of a note secured by a former deed of trust and acknowledged before Maher. The court, however, seems (the record is not clear) to have stricken out this testimony over the objection and exception of defendant.

At the conclusion of the evidence, the trial court over the objection and exception at the time of defendant, gave a peremptory instruction requiring the jury to find the issues in favor of pl...