27 S.W. 440
HICKMAN et al.
GREEN et al.
Supreme Court of Missouri.
June 18, 1894.
BONA FIDE PURCHASERS — NOTICE — AGENTS — OBJECTIONS TO EVIDENCE — WAIVER.
1. Where no objections is made to a witness' competency to testify to a transaction with a decedent, though all the facts are known at the time, the testimony will not afterwards be stricken out on motion, because relative to a transaction between witness and deceased.
2. Where G. employed M. simply to effect an exchange of land with H. on specified terms, the agency is special, and, it not being within the scope of M.'s employment to examine and pass on the title of the land to be exchanged for, notice to M. of an unrecorded deed of the land
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would not be notice to G., especially where M. was also the agent of H. in the exchange, and as such obtained the information, and in addition had an interest in concealing the fact, his commissions depending on a consummation of the exchange. Sherwood, Brace, and Burgess, JJ., dissenting.
3. Though, at the time G. commenced negotiations with H. for the purchase from H. of land which G. knew H. was in possession of, the title stood of record in L., still, H. having asserted that she was the owner in fee, and having furnished an abstract showing title in L. and a quitclaim deed with special warranty from L. to H., executed after the commencement of the negotiations, and these having been submitted by G. to a lawyer, who advised G. that H. could convey a good title, G. will not be held to have had notice of an unrecorded deed from L. to H. giving H. only a life estate with remainder to her children. Sherwood, Brace, and Burgess, JJ., dissenting.
In banc. Appeal from circuit court, Audrain county; E. M. Hughes, Judge.
Suit by D. C. Hickman and others against Lucy J. Green and others. Judgment for defendants. Plaintiffs appeal. Affirmed.
This is a suit in equity to restore a destroyed deed from J. G. Lakenan and wife to Mrs. Frances D. Hickman for her life, remainder to the natural heirs of her body, conveying to them a parcel of land in the city of Mexico, Audrain county, Mo., 90 feet front by 270 feet deep, being the north part of and taken off of the north side of lot No. 35 of Mrs. Sparks' Southern addition to said city of Mexico. It was alleged in the amended petition, and sustained by the proofs, that in 1886 Lakenan and wife, by warranty deed, conveyed said land to Mrs. Hickman and her bodily heirs, and that said deed was never recorded. In May, 1889, Mrs. Hickman and her children were in the possession of this lot occupying it as a residence. At the same time Mrs. Green, the defendant, was the owner in fee of a small farm of 40 acres near Mexico, on which she was residing with her husband and codefendant herein. Mrs. Hickman was desirous of moving to the country, and Mrs. Green preferred a residence in the city, and, thereupon, each of them employed the real-estate firm of Moore & Nelson to effect the exchange of these two properties. Their contracts with Moore & Nelson were in writing. Mrs. Hickman's contract with them was executed May 14, 1889, and Mrs. Green's on May 16th. In Mrs. Green's contract the land was placed with Moore & Nelson to exchange for Mrs. Hickman's lot. Mrs. Green asserted that she was the owner in fee of the 40 acres, and she agreed to take Mrs. Hickman's lot therefor, and give possession November 1, 1889, the agency to continue for one month from its date. Moore & Nelson were "authorized to sell and contract under seal with purchaser for said premises according to the price and term of payment above written, or any price or term which we may agree to accept, other than the above." Their commission was fixed at $50 if the exchange was effected, whether by them or another. Mrs. Hickman's contract was in all respects, except dates, exactly like Mrs. Green's. She represented that she was the owner in fee of her lot, and authorized the agents to exchange it for Mrs. Green's 40 acres, and for the same commission and upon the same stipulation, and give possession at "any time." Each owner valued her property at the time at $2,000, and there is no evidence that one was not as valuable as the other. Mrs. Hickman caused an abstract of her title to the lot to be made, and as by the abstract the title would appear in Lakenan, whose deed to her she had not recorded, and which, if recorded, would show she only had a life estate, she obtained from Lakenan and wife another deed, — a quitclaim deed and special warranty, — on May 23, 1889, conveying the title in the lot to herself without the words of limitation to her bodily heirs. Mrs. Green's title to the 40 acres has not been disputed. Mrs. Hickman, through her agents, Messrs. Moore & Nelson, gave Mrs. Green the abstract to the lot, and Lakenan's quitclaim deed, and Mrs. Green submitted the abstract and deed to M. Y. Duncan, Esq., for his opinion on the title as shown by the abstract and deed. He advised her that Mrs. Hickman could make her a good title, and accordingly Mrs. Hickman made Mrs. Green a warranty deed to the lot in town, and Mrs. Green and husband made Mrs. Hickman a warranty deed to the 40 acres, conveying a life estate to Mrs. Hickman, remainder in fee to her bodily heirs. Soon after the deeds were exchanged, Mrs. Hickman, with her children, the plaintiffs, moved out of her town house and took possession of the 40 acres, and lived on it until she died, and Mrs. Green took possession of and moved into the house in town. After the deeds were exchanged, Mrs. Hickman, her adult son, Thomas Hickman, J. G. Lakenan, and Nelson, of the firm of Moore & Nelson, met in the office of Moore & Nelson, in Mexico, and Nelson, in their presence, and at Mrs. Hickman's request, destroyed the unrecorded warranty deed from Lakenan and wife to Mrs. Hickman and her bodily heirs. The plaintiffs in this cause are D. C. Hickman, Mary L. Hickman, and Mariah Hickman, adult children and heirs of Mrs. Frances Hickman, who died April 2, 1890, and prior to the institution of this suit. The defendants are Mrs. Green and her husband, Lakenan and wife, and J. T. Hickman and James L. Hickman, adult sons of Mrs. Hickman, who refused to become plaintiffs, and Mrs. Josie Hickman, the widow of a deceased son, William T. Hickman, and his two minor children, William T. and Sadie Hickman. At the request of plaintiff, the circuit court made its finding of facts, upon certain points in the case, as follows: "I find that the witness Nelson was the agent of both Mrs. Hickman and Mrs. Green at the time and before the transfer of the deeds was made between Mrs. Hickman and Mrs. Green; that he was agent only for the purpose
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of effecting an exchange of the lands between the parties, and was not authorized by Mrs. Green to judge of the goodness of the title she was getting from Mrs. Hickman, nor did he presume to act for her in that capacity; that Mrs. Green had in her employ an attorney, M. Y. Duncan, Esq., for the purpose of passing upon the title to the land she was getting; that Duncan, before the trade, did pass upon the title of Mrs. Hickman to the land traded Mrs. Green, and pronounced it good. I further find that Lakenan and Nelson destroyed the deed from Lakenan and wife to Mrs. Hickman [the deed that provided for a life estate in Mrs. Hickman, and remainder to her children]; that this was done after the delivery of the quitclaim deed; that Nelson, before the consummation of the trade, knew, or had an opportunity of knowing, the contents of the destroyed deed. I further find Mrs. Green, before the trade, knew that Mrs. Hickman, deceased, was living on, and had possession of, the 90×270 feet lot traded Mrs. Green, and also knew that Mrs. Hickman claimed to be the owner of it, and, further, that the destroyed deed was never on record; that Mrs. Green, upon inquiry as to the title of Mrs. Hickman to the lot mentioned, had delivered to her by Mrs. Hickman [was furnished] an abstract of the title to said lot, taken from the records in the recorder's office of Audrain county, together with the quitclaim deed from Lakenan and wife to Mrs. Hickman, which showed an absolute estate in Mrs. Hickman to the said lot, which abstract and quitclaim deed Mrs. Green caused to be examined by a competent attorney, Duncan, who pronounced the title good. These are the only facts the plaintiffs desire me to find in writing, and the conclusion of law I draw from the facts as above found, together with others, is, Mrs. Green, being without notice of the existence, contents, or destruction of the first unrecorded deed from Lakenan and wife to Mrs. Hickman, and having exercised proper care and diligence in the examination of the title to said lot, is not affected by its fraudulent destruction, but takes a good title to said lot." To this finding plaintiffs duly excepted. The circuit court thereupon found the issues for defendants, and rendered judgment accordingly. A motion for new trial was made and overruled, and plaintiffs have appealed to this court. The errors assigned in this court are, briefly, that the circuit court erred in excluding the evidence of Frank R. Jesse, Esq., offered by plaintiffs, and in admitting the evidence of Mrs. Green herself, and in its finding of facts.
John M. Baker and George S. Grover, for appellants. George Roberton, for respondents.
GANTT, J. (after stating the facts.)
1. No objection was made as to the competency of Mrs. Green when she was sworn. She was examined in her own behalf by her counsel, and cross-examined by plaintiffs' counsel at length, without a suggestion that she was incompetent to testify because of Mrs. Hickman's death. After all the evidence was closed, the plaintiffs moved the court to strike out or disregard all the evidence of Mrs. Green, because the other party to the trade was dead, which motion the court overruled. It is apparent at a glance that, if Mrs. Green was incompetent for the reason...