Gerhardt v. Tucker

• Decision Date: 28 February 1905
• Citation: 187 Mo. 46,85 S.W. 552
• Parties: GERHARDT v. TUCKER.
• Court: Missouri Supreme Court

85 S.W. 552

187 Mo. 46

GERHARDT v. TUCKER.

Supreme Court of Missouri.

February 28, 1905.

MORTGAGES — CONSTRUCTION OF INSTRUMENTS — EVIDENCE — SUFFICIENCY — WITNESSES — COMPETENCY — WAIVER OF OBJECTIONS — PRIVILEGED COMMUNICATIONS — APPEAL — HARMLESS ERROR.

1. On an issue as to whether a transaction constituted an absolute conveyance on a mortgage, plaintiff could not complain of the exclusion, as privileged, of testimony of communications made to the attorney who drew the instruments, where such exclusion only applied to communications made to the attorney after his employment as such, and he was permitted to testify to the whole transaction up to the drawing of the deed, and there was no claim that anything affecting the issue occurred after that time.

2. Communications by defendant's intestate to plaintiff's attorney which the former requested the latter to convey to plaintiff are not privileged.

3. The incompetency of a party's agent as a witness, under Rev. St. 1899, § 4652, on the ground of the death of the other party to the transaction, is waived where the only objection to his testimony is on the ground that it constitutes a disclosure of a privileged communication.

4. In order to show that a deed absolute in form was intended as a mortgage, the evidence must be satisfactory as to its credibility, unequivocal as to its terms and meaning, and clear and convincing beyond a reasonable doubt.

5. One cannot maintain a suit to have a deed absolute on its face decreed to be a mortgage unless he shows a willingness and an ability to redeem the land from the mortgage.

6. Evidence that plaintiff's agent proposed to defendant's intestate that the latter should assume notes executed by plaintiff, and accept a deed of trust from plaintiff, which the intestate refused to do, but consented to assume the notes on the execution of an absolute deed to the property, which he agreed to reconvey on being repaid for his outlay, was not, in view of the character of the agreement, the intestate's death, and the proof of the agreement by the uncorroborated testimony of plaintiff's agent alone, sufficient to show that the deed was intended merely as a mortgage.

In Banc. Appeal from Circuit Court, Callaway County; John A. Hockaday, Judge.

Suit by Charles Gerhardt against Daniel M. Tucker, heir at law and administrator of the estate of W. B. Tucker. From a judgment for defendant, plaintiff appeals. Affirmed.

A. Finley and N. D. Thurmond, for appellant. David H. Harris and Geo. Robertson, for respondent.

VALLIANT, J.

This is a suit in equity in which plaintiff seeks to have a deed absolute on its face decreed to be a mortgage. The contract in question was made between the plaintiff and one W. B. Tucker, since deceased. The suit is against Daniel M. Tucker, brother and only heir at law of decedent, and administrator of his estate. The petition states: That prior to the execution of the deed in question, the date of which was August 1, 1898, the plaintiff was indebted to one Barton in the sum of $7,000, secured by a deed of trust on the land, and also to the Callaway County Bank in the sum of $2,000, to the Home Savings Bank $500, and to W. B. Tucker $450, which, with interest, made his indebtedness $10,000. Tucker was surety on the notes held by the banks. That it was agreed between plaintiff and Tucker that in consideration that Tucker would assume the payment of the Barton notes, and the notes to the banks, and the $450 due himself, "the plaintiff would execute to the said W. B. Tucker a mortgage on said real estate to indemnify him (the said W. B. Tucker) against loss for so assuming and paying said $10,000 so owing by plaintiff; that upon the repayment to said W. B. Tucker by plaintiff of all the amounts so paid by him for plaintiff, together with the accrued interest thereon, he, the said W. B. Tucker, would release said real estate from said mortgage, and reconvey the same to plaintiff. That plaintiff did on the 1st day of August, 1898, in pursuance of said agreement, execute to said W. B. Tucker a warranty deed to said real estate; it being agreed and intended at the time between plaintiff and the said W. B. Tucker that said warranty deed should be held and considered as a mortgage upon said real estate to secure the said W. B. Tucker the indebtedness aforesaid upon the terms and conditions aforesaid." The prayer of the petition is that an account be taken, showing the amount of plaintiff's indebtedness, crediting him with rents, etc., and a balance struck, "which said balance so found due as aforesaid the plaintiff prays that he may be allowed to pay to defendants"; that upon such payment the defendant be required to reconvey the property to plaintiff, or it be decreed to vest in him, "and, if the plaintiff is not able to pay said balance so found against him, that the same be declared a lien against said real estate," and it be sold, and the proceeds paid to defendant to the amount of his debt, and the balance to the plaintiff. W. B. Tucker died in June, 1899.

At the trial the plaintiff introduced but one witness to prove the contract as alleged. That witness testified that at the request of the plaintiff he called on Mr. Tucker, and made the proposal which finally resulted in the execution of this deed. Before going into the matter further, he was asked questions designed to ascertain in what capacity he was acting, and for whom. In answer to such questions, it came out that, after the terms had been agreed upon orally, Mr. Tucker asked the witness to prepare the deed in accordance therewith, and that the witness did so, and afterwards rendered a bill against the estate for $10 for that service, and it was paid. Then the defendant objected to the competency of the witness on the ground that, as he was Mr. Tucker's attorney in the matter, all that he might have learned from what his client said was confidential, and could not be disclosed on the witness stand. After considerable discussion of the point, and the questions designed to bring out testimony as to the agreement were put in various forms, and met with the same objection, then this question was asked: "What did Mr. Tucker instruct you with regard to what he did tell you; that is, with regard to you telling it to Mr. Gerhardt?" At this point the abstract says (page 21): "To this question the defendant at the time objected for the reason that the question is with reference to a conversation with regard to this matter that was being transacted by the attorney for the plaintiff, and that makes it in the nature of a confidential communication. * * * The court ruled that this witness was not excluded by reason of his being agent for Mr. Gerhardt in this transaction; but, as the attorney for Mr. Tucker, the ruling is that he is still incompetent." After that the witness was asked: "In what capacity were you acting, with regard to Mr. Gerhardt, in the transaction of this business?" Defendant objected on the ground that it asked for a conclusion. The objection was overruled, and exception taken. The witness answered: "Mr. Gerhardt came to me and employed me, or asked me, as his agent, to go to see Mr. W. B. Tucker — that he wanted to prefer him in this debt that he was being sued — Q. Tell just what Mr. Gerhardt said to you, and what you did. Tell the whole thing?" Defendant objected on the ground that it called for a self-serving statement. The objection was overruled, and exception taken. Then this question by plaintiff: "Go ahead and state the whole transaction?" In answer to which, without further objection, he said substantially as follows: "Mr. Gerhardt told me to see Mr. Tucker, and tell him that he was being sued by the Callaway County Bank, and that he owed some other debts, and that, as Mr. Tucker had befriended him in the past, and he thought he would in the future, when he got on his feet and in position to start in business again, therefore he wanted to secure Mr. Tucker, and give him a deed of trust, to make him a preferred creditor. Mr. Tucker said: `I am sorry Charley is in debt, but, of course, if I can save him any money, I want to do it.'" Witness reported the result of the conversation to Gerhardt, and made about three trips, carrying to each what the other said. Finally Mr. Tucker agreed that he would assume the Barton notes, $7,000, which, with the notes held by the banks on which he was already surety, and the amount of plaintiff's debt to him, made $10,000, for which amount Gerhardt was to give Tucker a deed of trust. When they came to preparing the deed of trust, Tucker said he did not want a deed of trust, did not want the publicity of advertisement in a newspaper, and did not want to have to foreclose; "and I told him that I would get Mr. Gerhardt to make a square deed to him for the property until he was able to pay it off and get the property back, and that, when he was, then Mr. Tucker could make the property back to him." In conformity to that proposition, the deed in question was executed. When it came to making the deed, Gerhardt wanted it to include also a vacant lot on which was a mortgage of $2,000. Tucker at first objected because he said...