Foster & Foster v. Nowlin

• Decision Date: 31 May 1835
• Citation: 4 Mo. 18
• Parties: FOSTER & FOSTER v. NOWLIN.
• Court: Missouri Supreme Court

4 Mo. 18

FOSTER & FOSTER

v.NOWLIN.

Supreme Court of Missouri.

May Term, 1835.

MCGIRK, J.^a1

Nowlin brought an action of debt against Josiah Foster and and George S. Foster, as executors of Charles C. Simmons, deceased. The defendants pleaded. 1st. Non est factum by Simmons. 2d. That they are not executors of Simmons; on both the pleas issues of fact were made. 3d. That Simmons died intestate; that after his death, and before the commencement of the suit, one R. Wash was appointed and yet is, administrator of the goods, &c., of C. Simmons in this State. Replication, that before the granting said letters, and after the death of Simmons, the defendants took into their possession certain effects of Simmons and converted them to their use, and that the effects were of great value, &c. Rejoinder, denying the matter of the replication. 4th. That Simmons died intestate in the State of Tennessee, and after his death and before the bringing this suit, letters of administration of his effects were granted to some person in said State and by the authority of the same. Replication, that after the death of Simmons and before the grant of letters, the defendants took certain property into their hands whereby they became executors of their own wrong. Rejoinder, denying the matters of the replication. 5th. This plea denies that any assets came to their hands. Replication affirming assets. 6th. This plea sets up several judgments as privileged debts and alleges no assets ultra. 7th. This plea alleges, the defendants fully administered, &c Issue on this plea affirming assets. The jury found a general verdict for the plaintiff in these words: “We the jury find the issues for the plaintiff.”

When the evidence was closed the plaintiff asked the court to give the jury several instructions; some of which were given and others were not given. But as no objections are made to these instructions in the argument, we will pass them by.

The plaintiff gave a bond purporting to have been made by C. Simmons, deceased, to him, in evidence for the amount of his debt; he then gave evidence tending to prove that many years past, C. Simmons married the daughter of G. S. Foster; that on that marriage Foster sent home with Simmons and wife soon after the marriage certain slaves; that they remained with them till Simmons' death in or about the year 1824. That Simmons had besides these slaves several other slaves which he also kept and used as his own for several years before his death, and up to his death--that Simmons lived in Missouri till about the year 1823, when he left the country and settled in Tennessee; and took with him the slaves in question and that he soon after died; that during his residence in Missouri he became indebted to Nowlin the plaintiff, and without paying the debt due Nowlin, removed to Tennessee--that while he lived in Missouri G. S. Foster the father-in-law, and J. Foster the other defendant, a brother-in-law, and himself, all lived in Howard county and quite near each other. There was also evidence to show Simmons was largely indebted when he left the country, and that his departure was rather secret. It also appears that the defendants on the death of Simmons, went to Tennessee and took possession of the slaves and brought them to Missouri, claiming them as their own property, and that they yet keep and possess them. It was also proved that after the defendants brought the slaves away from Tennessee, and before the present suit was brought against them, letters of administration were granted in Tennessee on the effects of Simmons. It also appears by the record that before the bringing of this suit, letters of administration were granted of Simmons' effects in Missouri to R. Wash. This is the substance of the plaintiff's cause in chief.

The defendants then gave evidence to show that the slaves which Foster, the father-in-law, let Simmons have on the marriage were only lent to him. They then gave in evidence a bill of sale for the other slaves to both the Fosters, which bill of sale purported to be on valuable consideration. This bill of sale bore date prior to Simmons' removal from the State.

The plaintiff then gave evidence to show that at and before the bill of sale was made, Simmons was largely indebted and in insolvent circumstances. The defendants on this point introduced rebutting testimony, and then asked several instructions of the court, some of which the court refused. The jury as was before stated gave a verdict for the plaintiff, and he had judgment for his debt and damages. In the progress of the trial several points were made by the defendants, arising out of the introduction of testimony which will be noticed in the order in which they arose in the argument of Foster's counsel. We will only attend to the points relied on by the counsel for the defendants.

1st. The first point made in argument by Mr. Leonard, counsel for the appellants is: That the court erred in admitting certain evidence of the execution of the bond, sued on as the bond of the intestate. The defendants put in the plea of non est factum, but did not support the same by an affidavit.

The plaintiff's counsel, Messrs. Hayden & Clark, insist that the proof offered to prove the bond was competent evidence., But they insist that admitting the proof was not competent evidence, yet the bond was proved without this evidence, and if so, then it could not be error to receive the proof, though it were incompetent.

The act of the General Assembly (see Rev. Code, 627) says when any declaration or pleading or notice of set off, shall be founded on any instrument in writing purporting to be executed by the other party, whether under seal or not, profert thereof shall be made, oyer thereof given if demanded, and the same shall be received in evidence unless the party charged to have executed the same, shall deny the execution thereof by a plea supported by his affidavit, accompanying the plea, &c.^(a)

In this case there was no affidavit; of consequence the bond was entitled to be read to the jury without any further proof: the fact that other proof was given when none was required, though that proof was not legal, cannot in any way injure the defendants.

But it is insisted by the defendants' counsel that the provisions of the above act do not apply to executors and administrators; because the executor cannot in general know whether his testator did or did not execute the instrument sued on and to require him to swear, would be unreasonable. They farther insists that the very words of the act shew an executor, &c., was not intended to be embraced. The argument is, that the act says the paper shall be received in evidence unless the party charged to have executed the same shall deny the same by oath. Now here the testator is the party charged to have executed the bond; as he is dead, the law cannot mean that he shall deny under oath, as he cannot do it, it follows the executor is not bound to make the oath, for he is not the party charged to have made the bond.

Our opinion of this statute is this, that no one shall be bound to prove the note or bond sued on till the party who is defending shall swear he knows or believes the name is a forgery. This statute is a useful statute and has been round so in practice. If we give this statute a strict construction, according to the letter, it would in all cases require the party who is charged to have made the instrument to make the affidavit. Now if he is dead and therefore cannot make the affidavit, then the paper most go in evidence, for the words are, that unless the party charged to have executed the instrument, shall make the affidavit, the paper shall go in evidence. We cannot think this is what the legislature meant. This would prevent the executor from making the affidavit; though he might be willing to do so.

Our opinion is that if the party charged to have made the instrument is a party to the pleading he shall make the affidavit, and if he is not a party, then the executor, &c., may do it. Two decisions of this court heretofore made are in accordance with this opinion We are therefore of opinion there is no error on this point.

2d. The second point made and argued is, that the court erred in admitting the declaration made to Warren, a witness in relation to the ownership of the slaves in question.

The defendant offered Warren to prove that while Simmons had the possession and use of the property, he declared the same was not his but belonged to the defendants, the plaintiff objected to the introduction of this evidence, but the same was admitted. The plaintiff then offered to prove by the same witness that he heard Simmons at another time and in another conversation declare the property was his, this evidence was objected to by the defendants' counsel but was admitted by the court.^(b)

We are of opinion that this testimony was correctly admitted, not as hearsay testimony, but being made while the property was in Simmons' possession is good evidence to show the nature of that possession. On this there is no diversity of opinion.

I am also of opinion that it is legal as rebutting evidence. It seems to me that the evidence of Simmons' declaration that the property was not his was good evidence as going to show the nature of the possession he had; the fact he affirmed was, that the property was not his, but was the property of the defendants. The inquiry to be made by the jury was, whether the fact was true as stated by him: if at a subsequent time he stated the property was his and not Foster's, then the credit of his former assertion is impeached. In this point of view, I have no doubt the testimony was properly received. This point is adjudged for the appellee.

3d. The third point is, that one Thomas Simmons who gave evidence, should have been rejected as a witness. The record shows that Thomas Simmons was the brother of C. Simmons, deceased that C. Simmons died intestate and without issue. The defendants...