Fugate v. Pierce

• Decision Date: 29 February 1872
• Parties: JAMES FUGATE, MARTHA J. HUGHES, et al., Defendants in Error, v. HUDSON PIERCE, Plaintiff in Error.
• Court: Missouri Supreme Court

49 Mo. 441

JAMES FUGATE, MARTHA J. HUGHES, et al., Defendants in Error,

v.HUDSON PIERCE, Plaintiff in Error.

Supreme Court of Missouri.

February Term, 1872.

Error to Caldwell Circuit Court.

J. D. S. Cook, for plaintiff in error.

I. Thomas J. Hughes was an incompetent witness. (1 Phil. Ev. 76, 82; 1 Cow. & Hill's Notes, note 151; 1 Greenl. Ev., §§ 334-5, 341, and cases cited.) The statute provides for and removes the objection which would arise from his being a party, but says nothing to relieve his disability as her husband. (Gen. Stat. 1865, p. 586, § 1; id. 587, § 5.)

II. The title of James Fugate and that of his heirs was limited to the property to which he had color of title, and actually occupied by him, to-wit: the “mill-site” and nothing else. His possession was under a deed to the “mill-site,” and his actual occupation was on the “mill-site” only. (See 34 Mo. 194; De Graw v. Taylor, 37 Mo. 310; Johnson v. Prewitt, 32 Mo. 553, 557; Ang. Lim. 416-21, ch. 31, § 15; id. 423-5, §§ 16, 17; id. 428, § 21; Barr v. Gratz, 4 Wheat. 213.)

III. When a prior possession has been abandoned, as in this case, it cannot be afterward used to found an action of ejectment. (Smith v. Lorillard, 10 Johns. 338; 16 Johns. 314; Ang. Lim. 399.)

Johnson, Dixon & Hoskinson, for defendants in error.

Thomas J. Hughes was a competent witness. Sections 5 and 8, and the provisions in section 1 of the statute concerning witnesses, specify who are incompetent. All others are competent. The wife is only admitted in exceptional cases, but the husband is nowhere classed among those incompetent. So far as he is concerned, the law attaches no such consequence to the marital relation. (Thomas et al. v. Babb et al., 45 Mo. 384.)

Their possession of part, with their claim of owning and possessing all, and their exercise of the ordinary act of ownership over all, was good against all but the holder of the legal title. The defendant invades their possession, and then says they ought to recover only the parts of which they held actual possession. The presumptions which he invokes to maintain his possession are only indulged in favor of the real owner, and are not available in favor of a trespasser and intruder.

BLISS, Judge, delivered the opinion of the court.

The plaintiffs are heirs of James Fugate, deceased, and sought to recover possession of two eighty-acre tracts of land near Far West, in Caldwell county, of which they claim their ancestor died seized. They showed no title in him, but relied upon his possession under color and claim of title. The defendants denied possession except of a small portion, and claim that that was abandoned, and that the interest of one of the plaintiffs had been sold under execution. The plaintiffs recovered judgment, and defendant charges the following errors:

1. The court refused a continuance asked to enable him to obtain the testimony of one Lillard, the sheriff who sold and conveyed the interest of one of the plaintiffs to his grantor. The application fails to show due diligence. The summons was served in May, 1868, and the trial was had in February, 1870. At the August term, 1869, the cause was continued on the application of defendant, and no effort had been made to obtain the testimony of Lillard, who resided within the State until shortly before the term at which the case was tried. The motion shows that notice was then given and sent to the witness, with directions to go before an officer and give his deposition, but defendant never received his testimony. Why this delay? It will never do, after continuances already had, and especially where there are only two terms a year, to encourage a delay of preparation until the close of vacation, with the expectation of a new continuance. It does not appear why Lillard's deposition was not forwarded. Perhaps no fees were sent; perhaps the witness declined to volunteer his testimony, or perhaps he had none to give. No legal and proper effort was made to obtain it, and the court did right in overruling the motion.

2. Thomas J. Hughes and wife are among the plaintiffs, and claim an interest in the property through Mrs. Hughes, a daughter of James Fugate, deceased. Hughes was sworn as a witness and his testimony was objected to.

Although at common law the husband and wife cannot be witnesses for or against each other, yet the husband should not be excluded in this case for two reasons: First, James C. Fugate has an interest, and has a right to the testimony of Hughes. Hughes himself has an interest, and is seeking possession jointly with Fugate. Though his claim is in right of his wife, it is really his own claim. Second, the statute makes him a witness. The common law excluded the testimony of husband and wife for each other on the ground of interest. The other ground--that of public policy--applies when one is called to testify against the other. Phillips says: “They cannot be witnesses for each other, because their interests are absolutely the same; they cannot be witnesses against each other, because this is inconsistent with the relation of marriage.” (1 Phil. Ev. 78.) Gilbert (Gilb. Ev. 252), Taylor (p. 878) and Blackstone (p. 1443) give the same reasons for the exclusion. They were not permitted to testify in support of the claims of each other, because parties and all others interested were excluded and could not be called upon against each other, because it might endanger the peace, unity and mutual confidence so necessary in the marriage relation. This last consideration is analogous to that which forbids the disclosure of confidential professional communications. But the reason for excluding them in the first case no longer exists, for the statute now provides that no person shall be disqualified as a witness in a suit “by reason of his interest in the event of the same as a party or otherwise.” (Gen. Stat. 1865, ch. 144, § 1; Wagn. Stat. 1372.) It would seem from this language that the husband and wife might in all cases testify for each other whether parties or not, and such has been the holding of the Supreme Court of Connecticut, where the statute is almost identical with ours. In Merriman v. H. & N. H. R.R Co., 20 Conn. 354, the wife, though not a party, was admitted as a witness in favor of the husband; the court, by Stoves, J., holding that the statute removed the disability; and in Lucas v. The State, 23 Conn. 18, it is held that the husband and wife may be witnesses for each other. The Supreme Court of New York holds that the husband and wife are competent witnesses in their own behalf when co-plaintiffs or co-defendants (Marsh v. Patton, 30 Barb. 506; Hooper v. Hooper, 43 Barb. 292), though I do not find that the Court of Appeals has passed upon the question, and the language of the New York statute differs somewhat from that of Missouri. The general question has not come directly before this court, though cases have arisen where the common-law doctrine has been greatly modified.

In Tingley et al. v. Cowgill, 48 Mo. 291, the wife, with the husband, was a party to the proceeding to set aside the will of her ancestor. In that case she was held to be a competent witness, but chiefly because she, and not the husband, was the real party in interest. The reasoning of the judge delivering the opinion may not quite meet the case at bar, where the husband seeks the possession, and the wife seeks the recognition of her title; but the facts are very similar, and the case can hardly be distinguished in principle. I think a fair construction of the statute should admit the testimony of necessary parties to the record in their own favor and that of other parties, notwithstanding their interest, as parties or otherwise, as in case of husband and wife.

It may be said that inasmuch as section 5 of the Witness Act expressly permits a married woman to testify in certain cases when her husband is a party, whether joined or not, by fair inference it should be held to recognize her exclusion in other cases. (Hardy v. Matthews, 42 Mo. 406.) There is force in this view, yet, as we have seen, it is held not to have this effect when she is the chief party in interest; and by its terms the section can have no force against the husband, only as recognizing the fact that the common law upon the subject is not wholly superseded. In view of this recognition we may not, perhaps, go as far as the Connecticut courts have gone, yet it would be contrary to the spirit of the statute to exclude a substantial party, because the wife or husband is also a party and has rights to be protected.

3. Exceptions were taken to the instructions given, and to the refusal to give others, upon the question of possession and its effect. A saw-mill was located upon the land, and the plaintiff's ancestor, James Fugate, held from one Havens some kind of a deed, now lost, for about twenty acres, embracing the mill-site. It cannot be now shown whether this last deed was a perfect instrument so as to convey title if held by Havens, but it is not denied that it was sufficient to give color. It is in evidence that decedent claimed the whole of the two eighty-acre lots sued for, and that the quarter-section lines dividing them ran through the improvements, which were all on the mill-site property; that he claimed to hold the remainder by some tax sale, though whether he had a tax deed does not appear; that he offered to sell...