Gross v. Watts

• Decision Date: 29 June 1907
• Citation: 104 S.W. 30,206 Mo. 373
• Parties: GROSS v. WATTS et al.
• Court: Missouri Supreme Court

104 S.W. 30

206 Mo. 373

GROSS v. WATTS et al.

Supreme Court of Missouri, Division No. 1.

June 29, 1907.

1. TRIAL — BY COURT — RECEPTION OF EVIDENCE.

Where a cause was taken under advisement by the judge and continued from one term to the next, the court had jurisdiction at the second term to receive further evidence.

2. APPEAL — REVIEW — DISCRETION OF TRIAL COURT — REOPENING CASE.

The introduction of evidence after the close of a case is no ground for a reversal, unless it appears to have been an abuse of discretion resulting in injury to the complaining party.

3. EXECUTORS AND ADMINISTRATORS — ACTION — PLEADING.

In a suit by an administrator, a general denial does not put him to proof of his appointment.

4. ACKNOWLEDGMENT — DEEDS.

Rev. St. 1899, § 913 [Ann. St. 1906, p. 841], provides that a certificate of acknowledgment shall state the "act of acknowledgment," and that a certain form shall be used, which form contains a recital that the grantor executed the instrument as his free act and deed. Held, that a certificate was not insufficient because it did not state that the instrument was the free act and deed of the grantor.

5. VENDOR AND PURCHASER — NOTICE — RECORDS.

A purchaser is bound with constructive notice of all recorded instruments and the recitals therein lying within his chain of title, but a deed or instrument lying outside of the purchaser's chain of title imports no notice to him.

6. SAME.

Actual notice to a purchaser of land of a claim against his grantor's title dispenses with any defect in such respect in the constructive notice of the records.

7. SAME.

Where one forged a deed to himself and placed it on record, and then conveyed to a third party, without notice of the forgery, it did not convey a good title merely because the record showed title in the forger.

8. LIMITATION OF ACTIONS — EFFECT OF STATUTE.

Gen. St. Kan. 1889, § 4095, providing that actions on contracts may be brought within specified times after the cause of action shall have accrued, bars the remedy, but does not extinguish the cause of action.

9. SAME — WHAT LAW GOVERNS.

A note executed and made payable in another state is not governed by a statute of limitations of that state in an action thereon in Missouri, where the statute merely bars the remedy, and does not extinguish the cause of action.

10. SAME — WRITTEN CONTRACTS FOR PAYMENT OF MONEY.

By Rev. St. 1899, § 4271 [Ann. St. 1906, p. 2345], actions upon promissory notes and other written instruments for the payment of money, whether sealed or unsealed, are not barred by the statutes of limitation before the expiration of 10 years after their execution.

Appeal from Circuit Court, Macon County; Nat. M. Shelton, Judge.

Action by John W. Gross, as public administrator, against William J. Watts and others, From a judgment in favor of plaintiff, defendants appeal. Affirmed.

This case originated in the circuit court of Macon county, and was instituted by plaintiff, administrator, against the defendants, having for its purpose (the first count) the foreclosure of a mortgage, executed and recorded, from William J. Watts and wife to Janet McQuacker, deceased, conveying the land described in the petition, and located in the county of Macon, state of Missouri, to secure their promissory note for the sum of $500, due in five years from date, and five coupons attached thereto for $35 each, which represent the annual interest on said note. The note and coupons after maturity bear interest at the rate of 10 per cent. per annum, and are payable at the First National Bank of Humboldt, Kan. The plaintiff was duly appointed administrator of the estate of Janet McQuacker by the probate court of Macon county, and he duly qualified, and he is now, and was at the time of the institution of this suit, acting as such. The other defendants are made parties to the suit because they claim some interests in the land, by mesne conveyances, through the defendant Watts, which will be more fully stated in the statement regarding the second count of the petition. The note and all the coupons were past due, and unpaid, at the time of the institution of this suit, except two or three of the coupons which had been paid prior to that date. The prayer of the first count was for judgment for the amount of the note and the unpaid coupons, against the makers, a foreclosure of the mortgage and a sale of the estate to satisfy the judgment, and for execution against the makers for the excess, if any, over and above the proceeds of the sale of the land under the foreclosure proceedings.

The second count of the petition had for its object the reformation of a warranty deed, from W. W. Johnson and wife to defendant Wm. J. Watts, purporting to convey the land in question, dated August 14, 1889. The facts regarding the transactions involved in the second count are best stated in the language of the petition itself, and they are as follows: "That said mortgage [the one mentioned in the first count] was procured and negotiated by said defendant, E. A. Barber, to secure said loan to said Janet McQuacker. That the title of the said William J. Watts to the premises and lands described in said mortgage was a warranty deed duly executed and delivered to said William J. Watts, for a good and valuable consideration, by W. W. Johnson and his wife, Nellie C. Johnson, dated August 14, 1889, and duly acknowledged on said 14th day of August, 1889, before a notary public, in Allen county and state of Kansas. That said warranty deed to said William J. Watts was by said William J. Watts placed and left, with money sufficient for record thereof, in the hands of said E. A. Barber, to be sent to the recorder of deeds for Macon county, Mo., for record. That said E. A. Barber promised and agreed to send said warranty deed conveying said lands from said Johnson and wife to said William J. Watts, executed as aforesaid, to the recorder of deeds of Macon county, Mo., for record in said office of recorder of deeds, together with the money deposited with him to pay for said recording. That by the fraud and deceit of said defendant, E. A. Barber, said warranty deed and conveyance was never sent by him to the recorder of deeds of said county of Macon, and was by fraud and deceit of the said defendant, E. A. Barber, never placed of record upon the records in the office of recorder of deeds of said county of Macon. That the said defendant, E. A. Barber, intending to cheat and defraud the said Janet McQuacker, without right, without authority, and corruptly and fraudulently, altered, erased, and changed the grantee's name in the said warranty deed, conveying said premises from said W. W. Johnson and wife, Nellie C. Johnson, to said William J. Watts, by fraudulently erasing the name of the grantee, to wit, William J. Watts, and writing in place thereof as grantee in said deed his own name, to wit, E. A. Barber, which thereby became and was a forged instrument through which no subsequent party as grantee could acquire title. That the said E. A. Barber, further intending to cheat and defraud the said Janet McQuacker and the heirs of the estate of said Janet McQuacker, did on the 8th day of April, 1901, fraudulently and wrongfully procure and have said warranty deed altered and changed, as aforesaid, filed, and entered of record in the office of the recorder of deeds of Macon county, Mo., and the same is recorded in book 126, p. 582, in the said office of recorder of deeds for said county of Macon, changed and altered as aforesaid; that said defendant, E. A. Barber, further intending to cheat and defraud the said Janet McQuacker, and the heirs of the estate of Janet McQuacker, did, on the 9th day of April, 1901, pretend to sell and convey the said land and premises to defendants J. W. Bradigum, George F. Bradigum, and Albert Best for $1,800 by warranty deed, which was duly acknowledged on the 9th day of April, 1901, before a notary public of Greene county, Mo., and the same was duly filed for record and recorded on the 20th day of April, 1901, in the office of recorder of deeds for said county of Macon, in book 133, at page 118; the said defendant, E. A. Barber, warranting the said premises to be free and clear of all incumbrances, and that he had good title thereto, well knowing then and there that he had no title to said premises, and that plaintiff's said mortgage was a valid and subsisting lien on said premises. That the said defendants, J. W. Bradigum, George F. Bradigum, and Albert Best, well knowing, and by ordinary diligence being able to well know, the altered and changed condition of the deed filed and recorded as aforesaid in book 126, at page 582, in the office of recorder of deeds for Macon county, Mo., as also that plaintiff's said mortgage was a valid and subsisting lien on said premises, did pretend to purchase said premises from said defendant, E. A. Barber, and that said E. A. Barber never had any title to said premises. That afterward said defendants, J. W. Bradigum, George F. Bradigum, and Albert Best, well knowing the facts as aforesaid, as to the title to said premises, did, on the 16th day of April, 1901, by their certain deed of trust, pretend to grant, bargain, sell, convey, and confirm unto the defendant William R. Baird, as trustee for the defendant Norah Wyatt, the said land and premises to secure to said Norah Wyatt the payment of a note of $1,000 in said deed described, which deed of trust was recorded on the 20th day of April, 1901, in the office of recorder of deeds of said county of Macon, Mo., in book 129, at page 211; the said defendants, William T. Baird and Norah Wyatt, knowing well, or by reasonable diligence being able to know well at the time of receiving said deed of trust, all the facts above set out as to the state of title to said premises, and that said E. A. Barber never had any title to said premises, and that the said warranty deed of W. W. Johnson and wife as the same appears...