Gibbs v. Haughowout

• Decision Date: 27 November 1907
• Citation: 105 S.W. 1067,207 Mo. 384
• Parties: GIBBS et al. v. HAUGHOWOUT et al.
• Court: Missouri Supreme Court

105 S.W. 1067

207 Mo. 384

GIBBS et al. v. HAUGHOWOUT et al.

Supreme Court of Missouri, Division No. 1.

November 27, 1907.

1. MORTGAGE — ABSOLUTE DEED — RECONVEYANCE.

Where a person conveys land by a deed absolute in form, though intended as a mortgage to indemnify a security on his appearance bond and he has kept and performed all the conditions of the bond, he is then entitled to a reconveyance of the property.

2. SAME—SUFFICIENCY OF EVIDENCE.

In an action for the cancellation of a deed alleged to have been intended as a mortgage, evidence examined, and held to show that the deed was given solely to indemnify the grantee and his co-sureties against loss for having signed the grantor's appearance bond as security for the grantee's fees in defending the grantor.

3. WITNESSES—TRANSACTIONS WITH DECEDENT.

Rev. St. 1899, § 4652 [Ann. St. 1906, p. 2520], provides that, where one of the original parties to the contract in issue is dead, the other party shall not be permitted to testify, and so, in an action for the cancellation of a warranty deed, the grantee being dead, it was error to permit the grantor to testify as to the nature of the deed and the purpose for which it was given.

4. APPEAL—DETERMINATION—REVERSAL.

On appeal in equity cases, the Supreme Court will consider evidence improperly excluded by the trial court or reject evidence improperly admitted, when preserved in the bill of exceptions, without reversing the judgment for that reason.

5. SAME.

On appeal in equity cases, the Supreme Court will proceed de novo to hear and determine the cause, deferring somewhat to the findings of the trial court; but, if its findings and judgment are not sustained by the evidence and law, the Supreme Court will proceed to make its own findings, and enter judgment as equity and justice may require.

6. SAME—HARMLESS ERROR—ADMISSIBILITY OF EVIDENCE.

Where a grantor recovered judgment in an action for the cancellation of a warranty deed, the court's error in permitting him to testify as to the nature of the deed and the purpose for which it was given, the grantee being dead, is harmless, where, without the grantor's evidence, his contentions were supported by the uncontradicted testimony of two other competent witnesses.

Appeal from Circuit Court, Christian County; Asbury Burkhead, Judge.

Action by William Gibbs and others against Maud Haughowout and others. From a judgment for plaintiffs, defendants appeal. Affirmed.

The plaintiffs instituted this suit against the defendants in the circuit court of Christian county, having for its purpose the cancellation of a certain warranty deed alleged to have been intended by the parties thereto as a mortgage, dated October 24, 1901, duly executed by plaintiffs to T. B. Haughowout, now deceased, conveying to him and his heirs the N. ½ of the S. W. ¼ of section 34, township 26 N., of range 21 W., of the fifth P. M., containing 80 acres; all in Christian county, Mo. There was a trial had before the court, and the findings and decree were in favor of plaintiffs. After an unsuccessful motion for a new trial had been disposed of, defendants appealed the cause to this court. The evidence on the part of the plaintiff tended to prove substantially the following facts: That on or just prior to the date of the deed William Gibbs, one of the plaintiffs, had been charged with grand larceny in Jasper county, and had been arrested and placed in jail; that T. B. Haughowout was at that time a practicing lawyer at the Jasper county bar; that said Gibbs employed said Haughowout to defend him against said charge, and agreed to pay him $25 for his services, which was to be paid in 30 days, and evidenced by a promissory note and secured by a chattel mortgage on some horses and a wagon; that he was confined in jail, and had no money with which to pay said fees, and at the time the contract of employment was entered into it was agreed between them that Haughowout was to furnish him bail in the sum of $300, in order that he might get out of jail and go to work and earn the money with which to pay the attorney fees; and that, in order to indemnify Haughowout against loss for signing said bail, said Gibbs agreed to and did execute the warranty deed mentioned, conveying to him the land described; that Haughowout accepted said deed under said agreement and had it recorded, and furnished the $300 bond for said Gibbs, and he was released from jail, and in due time he paid off the $25 note, which was by Haughowout marked "Paid," and he surrendered the note and mortgage to Gibbs; that Gibbs appeared in court according to the conditions of the bond, from time to time, until finally the case against him was dismissed, and that by said dismissal he and his bondsmen were discharged from all liability upon the $300 bond, and that, when Haughowout and the other securities were all released from all liability on the bond by the dismissal of the cause, it became the duty of said Haughowout under the agreement with Gibbs to reconvey the land back to the plaintiff Gibbs. Plaintiffs also introduced evidence showing that T. B. Haughowout was dead at the time of the institution of this suit, and that the defendants are his administrator and heirs at law, and...