Davis v. Green

• Citation: 102 Mo. 170,14 S.W. 876
• Court: United States State Supreme Court of Missouri
• Decision Date: 15 December 1890
• Parties: DAVIS v. GREEN <I>et al.</I>

14 S.W. 876

102 Mo. 170

DAVIS v. GREEN et al.

Supreme Court of Missouri.

December 15, 1890.

DOWER — EVIDENCE IN EJECTMENT — ADMISSIONS.

1. Rev. St. Mo. 1879, § 2186, provides that every widow shall be endowed of a third part of all the lands whereof "her husband, or any other person to his use," was seised of an estate of inheritance, during marriage, to which she has not relinquished her right of dower. Section 2197 provides that no act of the husband, without the assent of the wife, evidenced by her acknowledgment, and no judgment against him, shall prejudice her dower. Sections 2730 and 2731 make judgments and decrees of a court of record a lien on the lands of the judgment debtor, including after-acquired lands. A married man purchased land at a partition sale, part cash, balance on time. Judgment was rendered against him, and execution levied before the price was wholly collected. Before execution sale, the price was paid, but the partition deed was not executed and delivered until after execution sale. The purchaser at execution sale received a sheriff's deed, and took possession. The husband died without ever having actual possession. Held that, on the full payment of the price, the parties to the partition suit became seised of the legal title in trust for said purchaser, and the widow was entitled to dower.

2. In an action by the widow for her dower interest in said land, evidence that an ejectment suit having been commenced against the purchaser at the execution sale, said widow's husband, being a prospective witness therein for defendant, told said defendant's attorney that he purchased said land at the partition sale for the joint use and benefit of himself and said defendant, and the deferred payments were made by said defendant, is mere hearsay, and incompetent.

3. Even if the evidence of the admissions of the deceased husband was competent, it would not of itself be sufficient to overcome the force of the record in the partition suit, and the sheriff's deed thereunder.

Appeal from circuit court, Audrain county: E. M. HUGHES, Judge.

W. W. Fry, for appellant. Duncan & Jesse, for respondents.

RAY, C. J.

The plaintiff, who is the widow of Silas W. Davis, deceased, brought this action, in 1887, to have dower admeasured and set off to her in the lands described in the petition, being N. E. ¼ of S. W. ¼ of section 12, township 50, range 9 W. On April 26, 1860, Silas Davis, then being the husband of plaintiff, purchased the land in dispute with others, at a partition sale, in a suit by the heirs of William Sims entitled "Evans et al. vs. Sims et al.," for the sum of $800, one-fifth cash, and balance in one and two years, with interest at 10 per cent. from date of sale. The sheriff's report of sale, showing collection of purchase money and interest, was filed April 29, 1863, the sheriff's deed was executed and delivered to said Davis May 2, 1863, and was put on record May 19, 1863. Said Davis died in July, 1886, without ever being, at any time, in the actual possession of the land, or any part thereof. April 29, 1862, judgment was recovered in the circuit court of Audrain county against said Silas Davis and C. C. Ricketts, in favor of one Hubble. Execution issued thereon in January, 1863, and levied on the land, March 6, 1863, and at a sale of the land had under said execution, May 1, 1863, Henry Williams became the purchaser, and obtained a sheriff's deed therefor, dated May 4, 1863. Williams took possession, (date of possession not given,) under his said purchase, and defendants claim under him by a regular chain of title. Mr. Duncan, attorney for defendants herein, was called as a witness for defendants, and stated that, as attorney for one Crump, he recovered a judgment against said Davis in 1867, and had the land sold under execution to Crump, and that, afterwards, in 1868 or 1869, he instituted a suit in ejectment for said Crump against one Hutchens, who was, at that time, in possession of this land, and that said Henry Williams was, upon his own motion, made a party defendant in the Crump suit, and that, in 1869, said defendants, Hutchens and Williams, filed their joint answer therein. Here the witness was asked what, if any, conversation he had with S. W. Davis, about whose money paid for this land in dispute, in the purchase of the same at the Sims partition sale in 1859. To this question, and the evidence called for, plaintiff objected, and to all evidence in regard to the Crump case, and to testimony of witnesses, as to any conversation with Davis in 1868, as called for, because plaintiff was not bound by any statement of Davis therein; that neither plaintiff nor her husband were parties to said suit, and plaintiff was not bound by said suit, or any statement of Davis in regard to it; that the oral testimony offered was not admissible against the record in the partition suit and the sheriff's deed to Davis, especially after the lapse of nearly 20 years; that the evidence called for was hearsay, incompetent, irrelevant, and immaterial. The court overruled plaintiff's objection, and admitted the evidence, and plaintiff excepted. The witness Duncan, continuing, said: "After the answer was filed I called on S. W. Davis to know about it, as I expected to use him as a witness in the Crump case. This was in 1868. I read the answer to Davis, and he said the facts recited in it were true." Witness was asked what, if anything, Davis said as to the purchase of the land at he partition sale, and for whose benefit the purchase was made, who paid the purchase money, and all Davis said. Plaintiff objected on the ground that the declaration and admission of the husband were not binding on her, and incompetent. The objections were overruled, and plaintiff excepted. Said witness then continued his testimony, as follows: "Davis told me that when the lands were sold in April, 1860, in the partition suit, he, Davis, and Henry Williams were, by agreement, to buy the lands jointly, and that he attended the sale, and bid in the land for eight hundred dollars, one-fifth cash, and the remainder in one and two years. He and Williams each paid one-half of the cash payment, and gave their joint notes for the deferred payments, and the sheriff made him, Davis, a deed to the lands, May 2, 1863; that he was unable to meet his part of the deferred payments, and Williams paid off the notes in July, 1863." On cross-examination, witness said: "I am attorney for the defendants in this case. I cannot give the exact language used in the conversation between Davis and myself, it has been so long ago. In fact, I had forgotten all about it, until, as attorney for defendants, in investigating this case, I found the papers. I run across this answer, in the Crump case, and, after reading that, I recollected of having this conversation with Davis. I do not remember when that conversation was. Davis died in 1886." Defendant then offered to read, in evidence, the answer of Williams in the Crump ejectment suit, to which the plaintiff objected, on the ground that it was irrelevant, incompetent, and immaterial, and that neither Davis nor plaintiff were parties to this suit, or bound by it. The objections were overruled, and plaintiff excepted. The answer read was filed July, 1868, entitled "James Crump, Plaintiff, vs. Warner Hutchens and Henry Williams, Defendants." The answer is, first, a general denial, then a specific answer, to the effect that, in 1860, said land was to be sold in the partition case of Evans et al. vs. Martin J. Adams et al.; that Henry Williams agreed with S. W. Davis that Davis should attend said sale, to bid in the land offered for sale, "for the joint use and benefit of themselves, and as joint owners;" that Davis attended said sale, and purchased said lands for $800, for the use and benefit of said Williams and Davis; that the terms of said sale were one-fifth cash, which was paid at the time, one-half by Davis, the other half by Williams, and the balance to be paid in one and two years, with interest; that Davis and Williams gave their joint notes for the deferred payments; that, in July, 1863, Williams paid said deferred payments; that, in 1863, the sheriff, under the partition sale, executed and delivered a deed for said lands to Davis as the highest and best bidder, of which Crump had notice. There is evidence in the present case to show that the various grantees, under Williams, took possession, and that Williams, and those holding under him, including defendants, have been in possession since. This being the substance of the evidence, so far as material, the court refused the single instruction asked in plaintiff's behalf, and which we deem it unnecessary to set out, as the one instruction given in the cause at the defendant's instance shows the theory upon which the court tried and determined the controversy. The instruction so given, and under which the finding was had, is as follows: "If the court sitting as a jury believe from the evidence in the case that, at the sale by the sheriff in partition, S. W. Davis bought the land in controversy, with other lands, for himself and Henry Williams, and each paid one-half of the cash payment, namely, eighty dollars, and gave their joint notes for the balance of the purchase price, payable in one and two years thereafter, and that Williams paid said notes himself, and Davis paid no part thereof, then the deed from the sheriff to Williams, read in evidence, transferred to Williams all the right in equity Davis had in the land by virtue of his purchase from the sheriff, and if said Davis never afterwards refunded to Williams his part of the money so paid, and was not in possession of the lands at his death, the plaintiff's inchoate right of dower was defeated, and the finding must be for the defendant." The foregoing instruction was given upon the theory that the admissions and declarations of Davis in connection with the answer in the Crump suit, as...