Davis v. Wood

• Decision Date: 12 March 1901
• Citation: 61 S.W. 695,161 Mo. 17
• Parties: DAVIS et al. v. WOOD et al.
• Court: Missouri Supreme Court

61 S.W. 695

161 Mo. 17

DAVIS et al. v. WOOD et al.

Supreme Court of Missouri, Division No. 1.

March 12, 1901.

EJECTMENT — ANCIENT DEED — GENUINENESS — WITNESSES — COMPETENCY — ADVERSE POSSESSION — ESTOPPEL.

1. Under Rev. St. 1889, § 8918, providing that, in actions where one of the original parties to the contract or cause of action in issue is dead, the other party shall not be admitted to testify in favor of any party to the action claiming under him, the widow of a deceased grantor is not a competent witness against the genuineness of an alleged deed from herself and husband, under which defendants claim title in an ejectment suit brought by the grantees in a later deed from herself.

2. In ejectment, an ancient deed, under which defendants claimed, having the appearance of genuineness, was found in possession of defendants' grantor; and the only signature susceptible of proof — that of a witness — was proven with reasonable certainty. Possession had been held by those claiming under it for over 30 years, with the knowledge and acquiescence of the grantor and his heirs; the grantor himself being present at a sheriff's partition sale, where the land was sold by the heirs of his grantee in the deed. The widow and other heirs of the grantor in the deed lived in the immediate neighborhood of the land, and made no claim to it until immediately before this action, when the widow made a deed to the plaintiff. Held sufficient evidence to establish the fact that the deed was genuine, and that the defendants were entitled to possession thereunder.

3. In ejectment, where both parties claimed under G., — the plaintiff by descent, and the defendant by an ancient deed, which had all the appearance of genuineness, and also by adverse possession, — an instruction that the plaintiff was entitled to judgment if it were shown that he and his grantors were the legal heirs of G., thus entirely ignoring the defendant's claims, was erroneous.

Appeal from circuit court, Stoddard county; John G. Wear, Judge.

Action by J. O. Davis and others against Dempsey Wood and others. From a judgment in favor of plaintiffs, defendants appeal. Reversed.

This is a suit in ejectment for 80 acres in Stoddard county. Both parties claimed under Thomas Galloway, who, it is conceded, acquired title by patent from Stoddard county dated April 21, 1860. Galloway died May 15, 1876. Plaintiff J. O. Davis claims in right of his wife, who was one of the children of Galloway, and also by deed from Galloway's widow and his other children, dated July 21, 1894. The other plaintiffs claim under their co-plaintiff Davis by deed to undivided half of the land, dated August 27, 1894. Defendants claim under a paper purporting to be a deed from Thomas Galloway and wife to Samuel Holmes, dated March 24, 1860, the execution of which is disputed. The other deeds in defendants' chain were: A sheriff's deed in partition conveying the title of the heirs of Samuel Holmes to Henry H. Bedford, dated December 19, 1874, recorded August 27, 1875; warranty deed from Bedford and wife to Thomas J. Davis, dated December 28, 1888, recorded same day; warranty deed from Thomas J. Davis and wife to Elizabeth Sissler, November 9, 1889, duly recorded; warranty deed from Elizabeth Sissler and husband to John R. Connor, to part of the land, November 14, 1890, recorded same day; and warranty deed from Connor to J. A. Sissler, for same part, February 6, 1892, recorded same day. Defendant Wood is the tenant of the Sisslers, and they were made parties defendants on their own motion. Besides their paper title, the defendants claim title by adverse possession for more than 10 years. They also plead certain acts as estoppel, which will be noticed later, when we come to discuss them. The cause was tried by the court, jury being waived. The plaintiffs' evidence consisted of their deeds above mentioned, and evidence as to who were the heirs and widow of Thomas Galloway, and the rental value of the land. Defendants offered their paper purporting to be a deed as above mentioned from Thomas Galloway to Samuel Holmes. This was, in form, a warranty deed from Galloway and wife, purporting to bear their signatures and seals, and to have been executed in the presence of Henry Kennedy, justice of the peace; but there was no certificate of acknowledgment, and it was not recorded until 24th April, 1894. The document, the original of which, by agreement of the parties, has been filed in this court, has all the appearance of a deed 30 years or more old. When this was offered in evidence the plaintiffs objected, and in support of their objection offered evidence tending to show that it was not what it purported to be. The evidence consisted of the deposition of Alsyria F. Galloway, widow of Thomas Galloway, and the testimony of two witnesses, — John E. Liles and W. S. Phelan. When the deposition of Mrs. Galloway was offered, defendants objected on the ground that no notice had been given for taking it, and that the witness was incompetent, because she was a party to the deed, and the other party was dead. The court overruled the objection, and the defendants excepted. Her deposition on this point was to the effect that she knew Samuel Holmes in his lifetime; that he died during the war, in 1863 or 1864; that her husband died in 1876; that her husband was unable to write his name, and usually made his mark to papers that he was to sign. "Q. I will get you to state if you on or about March 24, 1860, or at any time, signed your name to a warranty deed conveying land to Samuel Holmes. A. No, sir; I never signed any deed to Samuel Holmes. Q. State whether or not you can write your name. A. Yes, sir; I can write my name. Q. I will get you to state if you have frequently signed your name to instruments of writing, and, if so, did you always write your own name? A. Yes, sir; I have signed several instruments, and have always wrote my own name." The testimony of Liles and Phelan was to the effect that they knew Galloway, and that he could not write his name, but signed papers by making his mark. The last witness, who was the clerk of the court, was asked, on cross-examination, to compare the signatures to the deposition with that purporting to be the signature of Mrs. Galloway to the deed, and say if, in his opinion, they were the same writing, to which he replied: "The handwriting is similar." W. H. Miller and Linus Sanford, lawyers, were called by defendants, and asked to make the same comparison, and they testified that the handwritings of the two were similar. The court sustained the plaintiffs' objection, and excluded the deed from evidence, and defendants excepted. Defendants then proceeded with their evidence, introducing, among other witnesses, Henry H. Bedford, the purchaser at the sheriff's partition sale. He testified: That Galloway was present at that sale, and that two other men, whom he named, bid on the property. That after the sale there was some question about the record not showing title in Samuel Holmes, and witness, with some other gentlemen, went to see Galloway about it, and on that occasion Galloway told them that he and his wife had sold the land to Holmes, and acknowledged a deed before Henry Kennedy, a justice of the peace. That at the time of the sheriff's sale there was a small house on the land, and about eight acres were cleared. That witness immediately took possession, and, through various tenants, held possession and paid taxes until he sold to Thomas J. Davis in 1888. "There never was a time after I purchased this at partition sale that I was not in possession, until I sold to Davis." That after his purchase at sheriff's sale, in 1873 or 1874, he sold to certain parties timber on the land, and, not knowing the exact location of the lines, asked Thomas Galloway to point them out to him, telling Galloway his purpose. That Galloway went with witness and the timber purchasers, and pointed out the lines. Witness also testified that he knew Henry Kennedy in his lifetime; that he was a justice of the peace in that neighborhood, and died during the war; that witness, as a lawyer, had practiced his profession before the justice, and was acquainted with his signature; and that the signature of that name on the deed in controversy was the genuine signature of Henry Kennedy. Upon cross-examination, witness testified: That he never had the Galloway-Holmes deed in his possession until a short while before, and his impression was that it was given to him by Thomas J. Davis. Did not know who placed it on record. That Davis resides at Maldin, and was not present at the trial. That witness had not seen Henry Kennedy's writing since 1860. "Q. Will you be certain that this is Henry Kennedy's signature? A. I am morally certain of that fact, but, of course, I could not say beyond controversy that it is. I would have no hesitation in saying that it is his signature. I would say that it is, because I have frequently seen him writing when I appeared before him." Cross-examined on the point of his possession, he was able to give the names of some of his tenants, but could not remember them all, nor the course of their succession. Admitted that sometimes there was a period of several months between the going of one tenant and the coming of another, and that at one time the house and fence burned down, and it was about 18 months before he rebuilt, but that he did rebuild "either in 1878 or 1879, somewhere along there, or in 1880," and it was occupied from that time on. R. W. Thompson testified: That he was brother to the administrator of Galloway's estate, and attended to winding it up. That it consisted of personal property only. He never heard of any real estate as belonging to it, and none was inventoried. He knew Mrs. Galloway, the widow. Saw her often. She lived in the neighborhood of this land. Witness remembered Henry Kennedy, and that he was a justice of the peace, but could not give the date. It...