Elsea v. Smith

• Decision Date: 16 February 1918
• Docket Number: No. 18647.,18647.
• Parties: ELSEA et al. v. SMITH et al.
• Court: Missouri Supreme Court

202 S.W. 1071

273 Mo. 396

ELSEA et al. v. SMITH et al.

No. 18647.

Supreme Court of Missouri. Division No. 2.

February 16, 1918.

Rehearing Denied April 9, 1918.

Appeal from Circuit Court, Saline County; Samuel Davis, Judge.

Suit to quiet title by George W. Elsea and others against Abram J. Smith and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

Duggins & Duggins and Virgil V. Huff, all of Marshall, for appellants. Roy D. Williams, of Boonville, and A. B. Hoy, of Marshall, for respondent American Bible Soc. A. R. James and It. M. Reynolds, both of Marshall, for respondents Henry S. Colvert, executor, and George W. Elsea.

WALKER, P. J.

This is a suit brought by the respondents against the appellants to quiet title to 240 acres of land in Saline county. Upon a trial before the court a judgment was rendered for the respondents, from' which appellants have prosecuted this appeal.

The respondents claim as devisees under a will of Earle N. Elsea; the appellants as the heirs of Paschal E. Smith, who is the common source of title.

In March, 1883, Paschal E. Smith made a deed to the land in controversy to his daughter Lou E., intermarried with one George W. Elsea. Soon thereafter the grantor built a dwelling on the property, as he stated to his neighbors, "for his daughter Lou," to whom he said he had deeded the land. She and her husband took possession of the premises, and improved, occupied, and used the same as their own until her death, in September, 1885. Two weeks prior thereto she gave birth to a son, who is the Earle N. Elsea mentioned herein. The day after her death the deed from her father to the land was found in her trunk. It had not been acknowledged, and the evidence is indefinite as to whether it had been signed by the wife of Paschal E. Smith. Several months after the death of Mrs. Elsea, her husband, George W. Elsea, took the deed to Paschal E. Smith, and it was by him and his wife acknowledged and returned to George W. Elsea as originally drawn, with the exception of the insertion in the body of same of these words: "The taxes to be paid by the guardee of the child of Lou Elsea yearly."

The granting clause of this deed is as follows:

"Unto the said Lou E. Elsea, and to the heirs of her body begotten."

Between the description of the land and the habendum clause appear the following provisos:

"Provided, however, if the said Lou E. Elsea should die without heirs of her body, said lands shall revert to and become the property of Paschal E. Smith, and in case of his (said Paschal E. Smith's) death the same shall descend to his heirs: Provided, further, if the said Lou E. Elsea shall die, leaving surviving heirs of her body begotten, and the said heir or heirs shall die without issue, then the said lands shall revert to and become the property of the said Paschal E. Smith, and in case he be then deceased, the same shall descend to his heirs."

The habendum clause is:

"Unto the said Lou E. Elsea and to her heirs as above set forth and not otherwise forever."

Earle N. Elsea, named herein, is admitted to have been the only heir of the body of Lou E. Elsea. He lived to manhood, and used and occupied the land as his own until March, 1912, when at 27 years of age he died without issue. He left a will devising a life estate in the land to his father, George W. Elsea, and directing upon the death of the latter that the land be sold by a trustee named, and the proceeds turned over to the American Bible Society.

The specific nature of the respective claims of the respondents to the land is therefore as follows: George W. Elsea as life tenant; the American Bible Society as residuary legatee; and Henry S. Colvert as trustee and executor named in the will. The property is,. and has been since the death of Earle N. Elsea, in the possession of the life tenant.

The record is indefinite as to the date of the death of Paschal E. Smith. It is sufficient, however, for us to know, which fact does definitely appear that he was not living at the time of the institution of this suit, and that he died before Earle N. Elsea. Appellants, as heirs at law of Paschal E. Smith claim title to the land upon the assumption. that there was no sufficient proof of the delivery of the deed from him to Lou E. Elsea, and, as a consequence, that the execution and delivery of same to her former husband, George W. Elsea, after her death, created in Earle N. Elsea, as the "only her begotten of the body of Lou E. Elsea," a defensible estate in fee, determinable upon the death of the latter without issue; that upon his death without issue the fee, under the terms of the deed, vested absolutely in appellants as heirs of Paschal E. Smith. They also claim alternatively that, if the delivery of' the deed in the lifetime of Lou E. Elsea be conceded, her life estate thereby created did not, in view of the death of Earle N. Elsea without issue, destroy their alleged resultant fee in the land, which vested upon the delivery of the deed.

The rulings of the trial court assigned as error are: The admission of the testimony of George W. Elsea in behalf of his coplaintiff, American Bible Society; that the deed was delivered prior to the date of its acknowledgment; that the limitation over to Paschal E. Smith and his heirs, after the vesting of the estate of Earle N. Elsea, violated the rule as to perpetuities; that sections 2872 and 2874, R. S. 1909, which abolished entails and out of a life estate created a fee, also struck down the reversionary interest claimed by appellants to have been created in them as a defeasance or executory interest upon the death of Earle N. Elsea without issue; and generally, as a consequence of the foregoing rulings, that the court erred in finding for the respondents, and its converse in not finding for appellants. These in their order:

I. The portion of section 6354, R. S. 1909, invoked by appellants in the contention that error was committed in the admission of the testimony of George W. Elsea, is as follows:

"In actions where one of the original parties to the contract or cause of action in issue and on trial is dead, * * * the other party to such contract * * * shall not be admitted to testify either in his own favor or in favor of any party to the action claiming under him. * * *"

A somewhat technical, but at the same time a sufficient, reason for overruling this contention lies in the condition of the record as to the nature and extent of the objections interposed by appellants to the introduction of this testimony. Counsel for appellants urged these general reasons as to the incompetency of the witness:

"Well, we think, your honor, he cannot testify in the case. He is claiming by and through a deed made by his son, who is deceased, and also under a title that Earle claimed through his mother, and he was the husband of this woman Lou Elsea, and therefore is incompetent to testify in the case."

The objection was overruled, exceptions saved, and the witness was permitted to testify in the separate behalf of his coplaintiff. The reason for the overruling of the objection and the consequent admission of the testimony involves a distinction without a difference, because under the express terms of the statute the incompetency extends, when applied with reason, not only to the testimony proffered in the witnesses' own favor, but as well to that in favor of any party to the action claiming under him. While the objection urged is based generally upon the statutory ground of exclusion, viz. the death of one of the original parties to the contract, it was untimely, too sweeping, when made, and was therefore properly overruled.

It is a well-worn maxim that "the reason of the law is the life of the law." The purpose of this statute, it is true, is to silence the voice of one of the parties to a litigated proceeding, where death has hushed into eternal stillness that of the other; but it must be construed in a reasonable manner, and one compatible with the purpose of its enactment. Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088. This statute was not intended to render incompetent as a witness for all purposes the surviving party to the proceeding, but only to the extent that his testimony might be subject to question by the other party if living. In other words, the disqualification is not general, but is limited to transactions between the witness and the party then dead. Eaton v. Cates, 175 S. W. 953; Mann v. Balfour, 187 Mo. 290, 304, 86 S. W. 103; Burns v. Polar Wave, etc., 187 S. W. 147. Ruled otherwise, the reason for the statute ceases to exist.

When, therefore, the surviving party to a proceeding is placed on the witness stand, as in this case, a general objection to the admission of his testimony, based on the death of the other party, should be overruled,. unless the examination discloses a purpose to. violate the reason of the rule. In short, the portion of the statute under review is not one of absolute exclusion, but of limitation. Until the limit has been reached, such a witness' testimony is as competent, except for the inhibited purposes, as that of any other.

The objection urged, therefore, to George W. Elsea's testimony, while it correctly stated the reason why same might be incompetent, was ineffectual to preserve reviewable error unless, upon an attempt being made to introduce evidence of the character intended to be excluded by the statute, timely objection bad been made to its admission, and exceptions saved to an adverse ruling in regard thereto. Otherwise the presumption might well be indulged that the objector had contented himself with a statement of a reason why the witnesses' testimony might be held incompetent but did not care to avail himself of his right to demand its exclusion, when offered.

This does not involve a case where a proper objection was made at the threshold of the admission of a class of evidence; the objection was not to the evidence,...