Edmonds v. Scharff

Decision Date05 July 1919
Docket NumberNo. 20245.,20245.
Citation279 Mo. 78,213 S.W. 823
PartiesEDMONDS v. SCHARFF et al.
CourtMissouri Supreme Court

Appeal from Circuit Court, Iron County; E. M. Dearing, Judge.

Action by W. E. Edmonds against Adolph Scharff and others. From the judgment, both parties appeal. Affirmed in part, and in part reversed and remanded with directions.

J. L. Fort, of Dexter, for plaintiff appellant.

Wilson Cramer, of Jackson, for defendants respondents.

WHITE, C.

The petition in this suit was filed in 1910 in four counts, each of which seeks to affect the title to lots 10, 11, and 12 of block 16, in the town of Bernie, in Stoddard county, Mo. There was a judgment for defendants on counts 1, 2, and 3, and a judgment for plaintiff on count 4. The parties on both sides appealed.

It is admitted that George L. Edwards was the common source of title; he died in 1895. On December 26, 1892, he conveyed the property to his wife, M. A. Edwards, by direct deed. In the description in that deed lots 10, 11, and 12 were mentioned, but the block number was omitted. The consideration was recited to be $1. After her husband's death in 1897, Mrs. M. A. Edwards conveyed the property to James L. Fort and James B. Buck, and her title then passed by mesne conveyances to William McGaugh, who acquired it August 15, 1899. William Mc-Gaugh passed the title on by' mesne conveyances to the plaintiff W. E. Edmonds, who acquired a one half interest in 1900 and the remaining half interest in 1902.

In December, 1892, at the time that G. L. Edwards conveyed the property to his wife. he was indebted to the firm of L. & A. Scharff in the sum Of $162.40, for whisky which he bought September 30, 1892. Suit was brought on this claim before a justice of the peace and judgment for $162.40 obtained January 19, 1893. A transcript of the judgment and proceeding before the justice was filed in the office of the clerk of the circuit court; execution issued, by virtue of which the sheriff of Stoddard county levied upon and sold the property by correct description and the same was purchased by L. & A. Scharff for the sum of $120, and conveyance made by the sheriff to them. The Scharffs then brought suit in ejectment against William McGaugh while he was in possession of the land; the petition was in the usual form, and the answer was a general denial. Judgment of the circuit court was rendered in favor of the plaintiffs in that case for possession of the premises. The case was appealed to this court, where the judgment was affirmed. The Scharffs were put in possession in 1907, under a writ of restitution in that case.

Prior to the filing of the suit in ejectment and before the death of G. L. Edwards, L. & A. Scharff had brought suit against Lee Edwards (meaning G. L. Edwards) and M. A. Edwards, the purpose of which was to obtain equitable relief, that is, to set aside the conveyance made by G. L. Edwards to his wife. The suit was subsequently dismissed and costs assessed against the plaintiffs L. & A. Scharff. Execution was issued upon that judgment for costs, the property sold by the sheriff, and conveyance made to the plaintiff here, W. E. Edmonds.

The petition in this case is in four counts, as stated. The first count sets out the conveyance by G. L. Edwards to his wife, with mistake in the description, the subsequent conveyance whereby the plaintiff acquired her title and prays to have the misdescription corrected and for possession of the premises against the Scharffs, with an accounting for the rents and profits during the time of their incumbency. The second count of the petition sets up the title under which the plaintiff claims, the sheriff's deed under which L. & A. Scharff acquired their interest, and the fact that they were in possession; and prayed for a cancellation of the sheriff's deed as a cloud upon the title, and an accounting of the rents and profits. The third count of the petition states a cause of action to determine the title under the statute (section 2535). The fourth count alleges the title of G. L. Edwards, his death, the right to dower of his widow in the property, and her conveyance of the same to the plaintiff.

The answer of the defendant alleges the title by which they acquired their claim in the property under the sheriff's deed in September, 1893, and sets up the statute of limitations in bar of the action for dower as alleged in the fourth count of the petition.

The circuit court held the sheriff's deed to the Scharffs was good, denied plaintiff's right to relief as prayed in the first, second, and third counts, but adjudged that he had a right to the dower of the widow, M. A. Edwards, in the property. Other facts pertinent to the different issues raised in the case will be considered as the questions which they affect arise.

I. The plaintiff's claim of title, as asserted in the first and second counts of his petition, is based on an assertion of the validity of the deed from G. L. Edwards to his wife, made in 1892, and his right to have that deed reformed so as correctly to describe the land. The plaintiff proceeds in equity, and the question is whether the deed under which he claims gave him such a right as he might enforce against the defendants in a court of equity.

Many of the questions affecting the regularity of the transaction whereby the defendants acquired their title, and some of the questions affecting the `validity of the deed of Edwards to his wife, were settled in this court in the case of Scharff v. McGaugh, 205 Mo. 344, 103 S. W. 550. It was held by this court in that case that the judgment and all other proceedings by which the Scharffs acquired title were regular. It is true, judgment being in ejectment is not res judicata here as to any issue determined there, but the doctrine announced in that case upon the facts presented is an authoritative statement of the law as applied to such facts.

The court there held, in the first place, that the deed from G. L. Edwards to his wife showed on its face that it was a voluntary conveyance; it recites a consideration of $1; that a voluntary conveyance by a husband to his wife is void as to existing creditors. The debt to the Scharffs had been incurred and was in existence at the time the conveyance was made. It was also held that McGaugh, who claimed under Mrs. Edwards, might show there was in fact a valuable consideration for the deed which passed from her husband to her at the time. However, there was a failure of such showing in that case, and the finding by the trial court that the deed was voluntary and void as to creditors was sustained. That finding is not res judicata here. This being an equity case, it becomes necessary to examine the facts to see whether the recited consideration is refuted by a showing that in this case there was a valuable consideration.

Mrs. Edwards, who had married again and appeared under the name of M. A. Ashworth, swore that her mother, a Mrs. Summers, loaned her husband a considerable sum of money, for which her mother held his notes, and surrendered these notes to G. L. Edwards on execution of the deed to his wife. Mrs. Summers testified that she bought the land from G. L. Edwards; paid him $300 for it; that he owed her some notes and she gave him the notes for the lots, and had the deed made to her daughter. This same evidence was offered in the case of Scharff v. Mc-Gaugh, and was considered as part of the case, for the reason that there was no ruling by the trial court as to whether it was competent or incompetent.

It is claimed here that the evidence is incompetent. The plaintiff admits the testimony of the widow, Mrs. Ashworth, formerly Mrs. Edwards, is incompetent because she was a party to the transaction; that is, a party to the conveyance which is immediately the subject of the action here; her husband, the other party to the transaction, being dead. But the competency of Mrs. Summers is asserted by the plaintiff, who claims that she was the agent of her daughter in procuring the property from the daughter's husband. Plaintiff cites in support of this position the case of Clark v. Thias, 173 Mo. 628, 73 S. W. 616, where it is held that the agent who transacts the business with a party since dead is competent to testify as to the transaction. The propriety of that ruling has been seriously questioned in later cases. Griffin v. Nicholas, 224 Mo. 275, loc. cit. 326, 327, 123 S. W. 1063; Bone v. Friday, 180 Mo. App. 577, 167 S. W. 599; Taylor v. George, 176 Mo. App. 215, 161 S. W. 1187; Green v. Ditsch, 143 Mo. loc. cit. 8, 44 S. W. 799; Chas. Green Real Estate Co. v. Building Co., 196 Mo. 358, loc. cit. 370, 93 S. W. 1111.

However, the question of whether an agent conducting a transaction may afterwards testify, when the other party to the transaction is dead, hardly enters in this case. Mrs. Summers was not the agent of her daughter; according to her own testimony, as she gives it, she was, herself the original party to the contract. Speaking of G. L. Edwards, she testified:

"I bought some lots in Bernie from him and paid him about $300 for them. He owed me some notes which I had been trying to collect for a long time and he gave me the lots for the notes. I had the deed made to my daughter M. A. Edwards. * * * The notes I turned over to G. L. Edwards for these lots, and they were canceled at the time and I gave him a receipt for the account he owed me."

The effect of the transaction as she describes it is precisely the same as if she had purchased the lots and had the conveyance made to herself and subsequently had conveyed to her daughter. She is a party to the original contract or cause of action. The wording of the statute completely covers her case. Section 6354, It. S. 1909. The provision is this:

"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 to such contract or...

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