Eyermann v. Piron

• Decision Date: 26 June 1899
• Citation: 151 Mo. 107,52 S.W. 229
• Parties: EYERMANN v. PIRON.
• Court: Missouri Supreme Court

52 S.W. 229

151 Mo. 107

EYERMANN v. PIRON.

Supreme Court of Missouri, Division No. 2.

June 26, 1899.

WITNESSES — MORTGAGES — FORECLOSURE BY ACTION — LIMITATIONS — ADVERSE POSSESSION.

1. Rev. St. 1889, § 8918, which provides that, where one of the parties to a contract or cause of action in issue is dead, the party claiming under the other party thereto cannot testify in regard thereto, does not exclude testimony by plaintiff to show that, as administrator of the estate of the payee of a note, he indorsed the same, and that it was distributed to him as an heir of the payee's estate where both the maker of the note and the payee are dead, as such testimony does not purport to relate to any transaction with defendant's predecessor in interest.

2. In an action to foreclose a mortgage, evidence that the mortgage and note were found in the possession of plaintiff's intestate, duly indorsed, by the payee, supports a finding that the deceased was the owner thereof, and that it was indorsed to him before maturity.

3. An action to foreclose a mortgage may be maintained even though the statute of limitations has run against the obligation secured by the mortgage, unless the possession of the mortgagor, or that of those claiming under him, has been adverse long enough to ripen into a title.

4. Mere possession by a mortgagor for 10 years will not create an adverse possession, as the possession of the mortgagor is permissive in its inception, and the presumption is that it continues so until the mortgagor by his acts or declarations repudiates the mortgage, of which, to constitute adverse possession, the mortgagee must have knowledge, or such notice as would put a reasonably prudent man on inquiry as to whether such holding was hostile.

5. In an action to foreclose a mortgage made in 1879, evidence that the mortgagor conveyed to defendant subject to the mortgage in 1883, that in 1890 defendant asked plaintiff to pay a special tax on the premises to protect his mortgage, and that in 1895, and after the commencement of the action in 1893, she sent an insurance agent to plaintiff to collect an insurance premium on the mortgaged premises, will justify a finding that defendant had not shown an adverse possession, though she was in possession from the time of the conveyance to her.

6. Admissions by an indorser, made after the transfer of a note, are inadmissible against his transferee.

7. The grantee of an equity of redemption is not competent to testify to matters occurring prior to the death of an assignee of the mortgage in relation thereto, under Rev. St. 1889, § 8918, which provides that no one whose right of action or defense is derived to him from one who is a party to a contract or cause of action can testify in regard thereto after the death of such other party.

Appeal from St. Louis circuit court; John M. Wood, Judge.

Bill by Gottlieb Eyermann, Jr., against Barbara Piron, to foreclose a mortgage. From a decree in favor of plaintiff, defendant appealed. Affirmed.

This is a suit to foreclose the defendant's equity of redemption in certain St. Louis real estate, and was commenced February 18, 1893. Mrs. Margaretha Schaefer, the mother of the defendant, Mrs. Piron, acquired the property by deed in 1878. On August 4, 1879, Mrs. Schaefer executed her negotiable promissory note of that date for $800, payable to August Eyermann three years after date, with interest from maturity, and at the same time executed her deed of trust of that date, conveying said property to said Eyermann's trustee to secure the payment of said note. Said deed of trust also recited: "In trust, however, for the following purposes, to wit: Whereas, the party of the first part, being indebted to the party of the third part, has executed and delivered to said party of the third part her promissory note, of even date herewith, for the sum of $800.00, payable three years after date, with interest after maturity at the rate of 6 per cent. per annum: Now, therefore, if said party of the first part shall well and truly pay said note, together with interest to accrue thereon, when the same ought to be paid, then this deed to be null and void; otherwise, to remain in full force and effect. It is, however, distinctly agreed and covenanted by and between the party of the first part and the party of the third part that at the expiration of said three years, the said party of the third part, or his assigns or legal representatives, will, at the request of the party of the first part, renew said principal note from year to year for the space of five years thereafter, by adding the yearly interest thereto. This renewal, however, to be made only at the request of said party of the first part, and the covenant therefor not to extend to her heirs, assigns, or legal representatives." The deed of trust was properly acknowledged before J. J. Laughlin, a notary public, and was duly recorded. The note bears the indorsement of said August Eyermann; also of Gottlieb Eyermann, Jr., as administrator of Gottlieb Eyermann, Sr., deceased; and the note and deed of trust were filed by the plaintiff with his petition. On August 9, 1883, Mrs. Schaefer conveyed the property to the defendant, her daughter, by deed of that date, duly recorded, subject to the deed of trust aforesaid, and the book and page of the record of the deed of trust are expressly referred to in the deed to the defendant. The defendant, in her third amended answer, denied generally the allegations of the petition, and pleaded affirmatively that the note and present action were barred by the statute of limitations; that the defendant is and was in adverse possession of the property for more than 10 years before the institution of the suit, and that the note and deed of trust were given without consideration. At the time of the institution of the suit, both Gottlieb Eyermann, Sr., and Margaretha Schaefer were dead. The note and deed of trust and other deeds above referred to were read in evidence. Peter J. Doerr, cashier of the Lafayette Bank, who was familiar with the signatures of the indorsers, testified that the indorsements of August Eyermann and of Gottlieb Eyermann, Jr., administrator, were genuine. Arnold P. Roetter also identified August Eyermann's indorsement. August Eyermann, the original payee, was offered as a witness, but, owing to the death of Mrs. Schaefer, his testimony was excluded, upon an objection of the defendant. Gottlieb Eyermann, Jr., the plaintiff, testified that he had indorsed the note as administrator, and that he received this note upon the distribution of the assets of his father's estate. Defendant objected to this testimony on the ground that the witness was incompetent, which objection was overruled by the court, and defendant excepted. John Eyermann, George Eyermann, Pauline Redwick, and Margaretha Goebel, the only other distributees of the estate of Gottlieb Eyermann, Sr., deceased, also offered to testify that they made no claim to the note, but their testimony was excluded. John Markwitz, an insurance agent, testified that in March, 1895, the defendant, in a conversation with him, while he was soliciting her insurance, acknowledged that plaintiff claimed the property. A. O. Engleman testified that in 1890, when he demanded payment of a special tax bill, Mrs. Schaefer and the defendant, Mrs. Piron, requested him to see Mr. Eyermann and collect from him, because he holds a deed of trust upon the property. The defendant introduced a number of witnesses, — her daughter Lena Piron, Mrs. Christman, Mrs. Krenzer, Mrs. Grasick, and Mrs. Gazell, — who testified that Mrs. Schaefer said that Mrs. Piron was the owner of the premises, that Mrs. Piron lived there for 13 years, and that she made the necessary repairs from time to time. Lena Piron also stated that Gottlieb Eyermann, Sr., called at the house only once, — in 1883, — when Mrs. Schaefer executed the deed to the defendant. Eyermann always paid the taxes. Mrs. Gazell testified that she was housekeeper for Gottlieb Eyermann, Sr., from 1877 to 1887, and Mrs. Piron was also in his employ. During that time Eyermann paid the taxes against the property in controversy. This witness, and Valle and J. S. Robbins and G. F. Keller, experts on handwriting, testified that in their opinion the indorsement of August Eyermann had been written by Gottlieb Eyermann, Sr. None of them, however, had ever seen any signature or handwriting of August Eyermann. The defendant, Mrs. Piron, testified that she lived in the premises since December, 1879. She was then asked: "Q. I will ask you under what circumstances you came to move there where you now live." This was excluded, on...