Layson v. Cooper

• Court: Missouri Supreme Court
• Writing for the Court: Valliant
• Citation: Layson v. Cooper, 174 Mo. 211, 73 S.W. 472, 97 Am. St. Rep. 545 (Mo. 1903)
• Decision Date: 01 April 1903
• Parties: LAYSON v. COOPER.

73 S.W. 472

174 Mo. 211

LAYSON v. COOPER.

Supreme Court of Missouri, Division No. 1.

April 1, 1903.

CHATTEL MORTGAGES—EXECUTION—FRAUD— OWNERSHIP OF PROPERTY—DENIAL—ESTOPPEL — EVIDENCE — WITNESSES—COMPETENCY OF WIFE.

1. In an action to recover corn alleged to have been mortgaged to plaintiff, a plea by defendant that he was illiterate, and unable to read the mortgage, and that plaintiff misread the same to him, and concealed the fact that it covered the corn in question, and induced defendant to believe that it related only to other property, presented a valid legal defense.

2. Where, in an action to recover corn under a chattel mortgage, defendant alleged that he had been deceived by plaintiff in signing the mortgage under the belief that it did not cover the corn, and also that the property mortgaged did not belong to him, a requested instruction that the defendant was estopped to deny that the corn belonged to him, which ignored the question as to whether defendant was deceived, was properly refused.

3. In an action to recover property under a chattel mortgage, the mortgagor is estopped to plead that the property mortgaged did not belong to him.

4. Where, in an action to recover corn under a chattel mortgage, defendant pleaded that he was illiterate, and that the mortgage, as read to him by plaintiff, did not cover the corn which belonged to defendant's wife, who was not a party to the suit, defendant was entitled to show that the corn did not belong to him as a circumstance bearing on the issue that the mortgage had been obtained from him by fraud.

5. Rev. St. 1899, § 4652, authorizes a wife to testify in actions to which she is a party, and section 4656 prescribes the conditions under which she may testify in a suit in which her husband is a party, whether she is joined as a party or not, not including, however, the fact of her interest in the property in controversy, where such interest is collateral only. Held, that where a wife was not a party to a suit against her husband, and her interest in the subject of the action was merely collateral, she was not a competent witness in her husband's behalf.

Appeal from Circuit Court, Harrison County; P. C. Stepp, Judge.

Action by John C. Layson against Isaac E. Cooper. From a judgment in favor of defendant, plaintiff appeals. Reversed.

This is an action of replevin for 178 bushels of corn. The corn was taken under the writ and delivered to plaintiff. The suit was begun in a justice's court, carried by appeal to the circuit court, where there was a judgment for defendant, from which the plaintiff appealed to the Kansas City Court of Appeals, where the judgment of the circuit court was affirmed, but, one of the judges of the Kansas City Court of Appeals being of the opinion that that decision was in conflict with the decision of the St. Louis Court of Appeals in Brinsmade v. Groll, 14 Mo. App. 444, the cause was certified to this court. The plaintiff's evidence tended to prove the following: Plaintiff was the owner of a farm, which he rented for the year 1897 to one Oliver, reserving a rent of $25 to be paid him for the use of the pasture, and two-fifths of the crops. The lease recited that Oliver owed the plaintiff $65 on a note, and that Oliver's three-fifths of the crops to be raised were to stand good for the payment to plaintiff of the $25 rent for pasture and the $65 note. It also recited the plaintiff sold to Oliver two mares on the farm, but the title was to remain in plaintiff until he was paid for the same. In June of that year plaintiff sold the farm, including his two-fifths interest in the growing crop, to Eliza K. Cooper, wife of the defendant. Soon after the purchase, Cooper and wife bought out the tenant's interest, and moved on the farm. Plaintiff's evidence is not clear as to whether it was Cooper or his wife that bought the tenant's interest, but he testified that both of them knew what his contract with Oliver was. His testimony was that Mrs. Cooper told him that "they" (meaning herself and husband) had bought the growing crop and the mares of Oliver. Shortly after defendant, Cooper, and his wife moved on the farm, he executed the paper writing under which the plaintiff claims, by which the three-fifths of the crop bought from Oliver and one of the mares (the other having died), and a horse of Cooper's are, in effect, mortgaged to plaintiff to secure a note of Cooper's for $102.32, which sum is made up of the $25 rent, the $65 note of Oliver to plaintiff, and another small item of debt of Oliver to plaintiff assumed by Cooper. The $102.32 note was not paid at maturity, and this suit is to gain possession of the mortgaged property.

On the part of the defendant the testimony tended to show that he did not purchase the corn from Oliver, but that it was purchased by his wife, and paid for with her money, and that he never made any claim to it; that he purchased the horses from Oliver, and assumed to pay Oliver's debt to the plaintiff; that he signed the paper under which the plaintiff claims, but did not know at the time he signed it that it contained anything in relation to corn. He understood that it covered only the horses. He testified that he could read very little, and that the mortgage was written by the plaintiff, who pretended to read it to him, but in doing so omitted all that there is in it in reference to the corn. He trusted to the plaintiff's reading it correctly, and signed it without reading it himself. (Plaintiff testified that he did not read the contract to defendant at all; that defendant read it himself, and then signed it.) Oliver, as a witness for defendant, testified that he sold his share of the crop to Mrs. Cooper. The agreement was she was to pay his debt to the plaintiff and give him $100. Her husband handed him the money. He did not know where he got it. The horses were also included in the sale. He told Mrs. Cooper what his obligation to the plaintiff was, and she agreed to step into his shoes. "Then I turned the crop over to her subject to the mortgage I had given on the three-fifths interest and on the horses to Mr. Layson. This was all in one contract, I didn't have two separate contracts with them. I declined to sell the corn unless they would take it subject to the lien on the crop and horses— unless they would take it all, and take it subject to that lien. I made that trade with Mrs. Cooper." Mrs. Cooper, wife of defendant, was called as a witness in his behalf. Plaintiff objected to her as a witness on the ground that she was the wife of the defendant, and therefore incompetent. The objection was overruled, and plaintiff saved an exception. She testified that when she bought the farm from the plaintiff and his two-fifths of the growing crop he told her that she could buy from Oliver, the tenant, his three-fifths, and that she did so; that she paid Oliver with money that she borrowed on a mortgage of other property belonging to her; that she did not know, when she bought from Oliver, that the plaintiff had a written contract with him; that the mortgage executed by her husband, under which plaintiff claims, was executed without her knowledge or consent.

The plaintiff asked instructions to the effect that the paper contract between defendant and plaintiff, together with the written contract of lease between plaintiff and Oliver constituted a mortgage, and, if the note secured by the mortgage was not paid, plaintiff was entitled to recover, that defendant was estopped to deny his title to the property covered by the mortgage, and that, though the jury should find that defendant's wife bought the corn of Oliver, yet, if she bought it with the knowledge that plaintiff had a lien on it under his contract with Oliver, still the plaintiff was entitled to recover. The court refused those instructions, but gave the case to the jury under instructions of its own, which were to the effect that, if the defendant's wife bought the corn from Oliver under agreement with him that she was to pay his debt to plaintiff as part of the consideration and that the document in evidence executed by defendant to plaintiff was executed with her knowledge and consent, and the note therein mentioned was unpaid, the plaintiff was entitled to recover; that under those circumstances defendant and his wife were estopped to deny his title to the property mentioned in the mortgage. And at the request of the defendant the court gave instructions to the effect that the burden was on the plaintiff to show that he was the owner and entitled to the possession of the property in controversy and, unless he did so, the verdict should be for defendant. Also that, if plaintiff told defendant's wife, when he sold her the land, that she could buy Oliver's interest in the crop, and she did so, and paid for it with her own means, and informed the plaintiff of what she had done before he took the note and mortgage from defendant, then the verdict...