Goff v. Roberts

• Decision Date: 31 October 1880
• Parties: GOFF v. ROBERTS, Appellant.
• Court: Missouri Supreme Court

72 Mo. 570

GOFF

v.ROBERTS, Appellant.

Supreme Court of Missouri.

October Term, 1880.

Appeal from Jasper Court of Common Pleas.--HON. E. O. BROWN, Judge.

REVERSED

Chas. A. Winslow for appellant.

Belch & Silver for respondents.

HENRY, J.

This is an action of ejectment for lot 41 in the town of Murphysburg, Jasper county, Missouri. The petition is in the ordinary form, and the answe was a general denial of all the allegations in the petition, and, in addition, several special defenses, among them, that plaintiff's claim is by purchase under a deed of trust executed by the defendant and his wife, Anna Roberts; that the title was vested in said Anna at the date of the deed, and that she did not execute it as the law directs; that the note was obtained through fraud. There was a reply, consisting of a general denial of the new matter alleged in the answer. Plaintiff obtained a judgment, from which defendant has appealed.

Plaintiff purchased under the deed of trust, at a sale by the trustee, and, on his part introduced in evidence the deed of trust, dated November 19th, 1874, the trustee's deed to him, dated July 31st, 1876, the monthly value of rents and profits, and rested. Defendant offered to prove that the said deed of trust and the note thereby secured, were executed in lieu of a note and deed of trust for the same debt, dated May 28th, 1873, and that the latter were to be delivered up and canceled, and the deed in question to be held by one Spencer, and not to be delivered to the beneficiaries, or the trustee, until the first note and deed were delivered up and canceled. He also offered to prove by said Anna Roberts, that she could not read English, that the deed of trust was not read or explained to her, and that her signature was procured by the fraudulent representations of Ira N. Malin, one of the beneficiaries in the deed. A deed from Wm. P. Davis and others, to said Anna, made before her intermarriage with defendant, for the land in controversy, without any words creating a separate estate, was excluded.

1. EJECTMENT: deed of trust: escrow.

The court erred in excluding the evidence offered to prove that the deed was delivered as an escrow, to be delivered to the trustee on the surrender and cancellation of the first note and mortgage. The deed had no effect until delivered to the trustee or beneficiary, and evidence tending to show that there had been no delivery, was admissible. “Where a deed is delivered as an escrow, it is of no force till the condition is performed; and although the party to whom it is made, should get it into his possession before the condition is performed, yet he can derive no benefit from it.” Greenleaf's Cruise, p. 30.

2. MARRIED WOMAN'S DEED: acknowledgment: fraud.

Mrs. Roberts was not a competent witness. She was neither a party to the suit, nor, in any sense, the agent of her husband in the transaction. There was, therefore, no competent evidence offered to prove that she did not execute the deed of trust in conformity to the statute, but other testimony than that of Mrs. Roberts was offered to show that the beneficiaries in the said deed procured her signature by fraud and misrepresentation, and the court committed an error in excluding such evidence, and also in excluding the deed from Davis to her. If she did not acknowledge the deed as required by law, or, if her signature to it was procured by fraud, it did not pass her title; and under section 14, Wagner's Statutes, 935, it was, therefore, ineffectual to convey her husband's interest. Clark v. National Bank, 47...