Johnston v. Ragan

• Decision Date: 29 June 1915
• Docket Number: No. 16216.,16216.
• Parties: JOHNSTON v. RAGAN et al.
• Court: Missouri Supreme Court

178 S.W. 159

265 Mo. 420

JOHNSTON v. RAGAN et al.

No. 16216.

Supreme Court of Missouri.

June 29, 1915.

In Banc. Appeal from Circuit Court, Jackson County; R. B. Middlebrook and W. A. Powell, Judges.

Action by Magdaline C. Johnston against Josephine G. Ragan and others. From a judgment for plaintiff, defendants appeal. Affirmed.

William C. Forsee,, of Kansas City, for appellants. R. H. Field, of Kansas City, for respondent.

WALKER, J.

This is an action brought in the circuit court of Jackson county, at Independence, in October, 1909, under section 2535, R. S. 1909, to ascertain and determine the title to certain land in said county described in the petition. Upon a trial before the court, judgment was rendered for the plaintiff, from which the defendants appeal.

Stephen C. Ragan, who died in October, 1908, was the common source of title. The plaintiff was his sister. In 1887 and 1888 she loaned him and another $7,200, evidenced by four promissory notes in different amounts and due at different times; the last maturing May 15, 1890. These notes were payable and delivered to plaintiff and were signed by Stephen C. Ragan and his comaker. To secure their payment, Stephen C. Ragan and his wife, Josephine G., one of the defendants here, on May 10, 1895, made and delivered to plaintiff a deed of trust on the land in question, naming therein Thomas A. Witten as trustee. In `August, 1909, default having been made in the payment of said notes, the trustee sold the land therein described to satisfy the debt, and the plaintiff became the purchaser for the sum of $2,000. The trustee thereupon executed and delivered a deed to the property to the plaintiff, and it is under this conveyance she claims title.

The defendants, who are contesting this proceeding, are Josephine G. Ragan, the widow of Stephen C., and Greenberry Ragan, one of his sons, and William C. Forsee, counsel for defendants. Several other defendants named in the petition made default. Josephine G. claims title by devise; her husband having bequeathed to her all of his real estate. Greenberry Ragan and William C. Forsee claim title by mesne conveyances from others than Stephen C. Ragan.

There is no controversy concerning the pleadings as such, but it will become necessary to discuss the replication in determining whether error was committed in the admission of certain evidence to avoid the bar of the statute of limitations. The petition is in the usual form. The answers of the defendant Josephine G. Ragan, who pleads separately, and Greenberry Ragan and William C. Forsee, who plead jointly, are substantially the same, except as later noted. They deny plaintiff's claim of title, assert ownership in fee, and plead that the notes described in the deed of trust under the foreclosure, of which plaintiff claims title, were barred by the statute of limitations, and that the trustee Witten's deed to plaintiff under said foreclosure and sale was void and conveyed no title; and that S. C. Ragan did not at any time execute or deliver to plaintiff any of said notes or a deed of trust conveying said lot to Witten, as trustee, to secure to plaintiff, her heirs or assigns, the payment of any of said alleged notes, and that no sale of said lot was made by said Witten or other trustee under such deed of trust. In addition, the defendants Greenberry Ragan and William C. Forsee claim title under a judgment and sale of said land in partition made in 1886; that all persons under whom plaintiff and these defendants severally claim title to the lot here in controversy were parties to said partition action; that, in and by the decree rendered in said cause, said land was partitioned in kind, and the lot here in controversy was allotted to and the title thereto confirmed in those under whom these defendants claim, and from whom, by proper, mesne conveyances, they derived title; that these defendants by such conveyances acquired and yet hold and own, as such tenants in common, the title in fee to said lot, said Greenberry Ragan being the owner of an undivided two-thirds thereof, and said Forsee of an undivided one-third thereof.

Plaintiff's replies denied each of the allegations of the answers, except that she alleged she had acquired and held title to the land in question under the deed made to her by the trustee Witten by reason of the foreclosure of the deed of trust and the sale of said land to satisfy the notes made to her by S. C. Ragan.

Sufficiency of Abstract of Record. Motions filed by plaintiff attack the integrity of the abstract of record. These demand disposition before considering the exceptions submitted by the appeal. The grounds of these motions will be discussed in the order in which they have been pleaded.

The first contention is that the abstract does not show that plaintiff or her attorneys agreed to the bill as true, or that the judges who signed same, or either of them, found the bill to be true. This contention is, of course, based upon what is shown by the abstract of the record, which alone is proper matter for our consideration on account of the manner in which the proceedings are brought to this court for review. The statute upon which this contention is based is as follows:

"In any case where the judge who heard the cause shall go out of office before signing the bill of exceptions, such bill, if agreed to be true by the parties to the action, or their attorneys, or shown to the judge to be correct, shall be signed by the succeeding or acting judge of the court where the case was heard." Section 2032, R. S. 1909.

The order entered of record of the filing of the bill of exceptions, as shown by the abstract, is as follows:

"Now at this day come defendants [naming them] in open court before Hon. Walter A. Powell, regular judge of this court at Independence, and Hon. R. B. Middlebrook, successor in office to Hon. John G. Park, late judge of Division 1 of this court at Kansas City, before whom this case was tried at Independence, said judges sitting together, and tendered to said judges their bill of exceptions herein, which bill of exceptions is by said judges signed, allowed, and ordered to be filed, and the same is filed and made a part of the record herein."

The statute above quoted, which authorized the signing of this bill by the succeeding judge, is in the disjunctive, and whether or not it be necessary to the validity of the action of the judge who signs the bill that such bill be "agreed to be true" by the parties to the action or their attorneys, or that it be shown to him to be correct, we must presume, in the absence of anything to the contrary of sufficient force to impeach a record, that, before the bill was signed by these judges, they satisfied themselves as to its correctness, because the record they have here made was within the limit of their judicial power and imports verity, for not only does it appear in the abstract filed by defendants, but in the additional abstract filed by plaintiff, that the bill "was tendered in open court and was by said judges signed and ordered to be made a part of the record therein." This is all, under any reasonable construction of the statute, that can be required. It is true that, so far as the requirements of the statute are concerned, it is not necessary that this bill should have been signed by Judge Middlebrook, but his signature can in no wise affect the validity of that of Judge Powell, who, it clearly appears from the record, "was the succeeding judge of the court where the cause was heard." More especially is the rule true in this case that the record under discussion imports absolute verity because it is not sought to be over-come, except by the unsupported motions of the plaintiff.

In State v. Taylor, 171 Mo. loc. cit. 475, 71 S. W. 1007, affidavits of witnesses were tendered in support of a motion to impeach a record, and the court, in disposing of the matter, said:

"Upon this question, the record, which imports absolute verity, is sought to be overcome, and shown to be false, by the affidavits of witnesses, in regard to which there can be no difference of opinion. If the record entries of a court of record can be overcome in this way, then the truism that such records import absolute verity is a deception and a snare."

It is next contended that the exhibits introduced in evidence and set out in the abstract of the record should be stricken out because same were not deposited with the clerk of the trial court but were simply called for in the original bill of exceptions and subsequently incorporated at length in defendants' abstract. The" portion of the statute relied upon to sustain this contention is as follows:

"But it shall not be necessary for the review of the action of any lower court on appeal or writ of error that any pleading, motion, instruction or record entry in the case, or any written or printed matter offered in evidence upon the trial and properly identified and deposited with the clerk, to remain in his custody until after the determination of the cause in the appellate court, shall be copied or set forth in the bill of exceptions filed in the lower court: Provided, the bill of exceptions so filed contains a direction to the clerk to copy the same and the same are so copied into the record sent up to the appellate court." Section 2083, R. S. 1909.

This statute was rendered more comprehensive under the amendment made thereto in 1903 (L. 1903, p. 105), in adding to the instruments or documents, not theretofore required to be set out at length in the original bill of exceptions, others therein named, provided same were deposited with the clerk of the trial court, when, without more than a general call therefor, they were authorized to be included in the bill. This amendment, however, is not to be so construed as to render the abstract of the record or the full transcript filed in the appellate court subject to attack for insufficiency here on account of a...