Layson v. Cooper

• Decision Date: 01 April 1903
• Citation: 73 S.W. 472,174 Mo. 211
• Parties: LAYSON, Appellant, v. ISAAC COOPER
• Court: Missouri Supreme Court

73 S.W. 472

174 Mo. 211

LAYSON, Appellant, v. ISAAC COOPER

Supreme Court of Missouri, First Division

April 1, 1903

Transferred from Kansas City Court of Appeals.

Reversed and remanded.

Sallee & Crossan and Wanamaker & Barlow for appellant.

(1) The motion for rehearing was properly sustained. The decision rendered by the court in this case was in conflict with the decision of the St. Louis Court of Appeals, in the case of Brinsmade v. Groll, 14 Mo.App. 444; Rider v Culp, 68 Mo.App. 527. This case is directly in point and was rendered under a state of facts similar to the present and has never been criticised or overruled by either of the appellate courts. (2) Defendant is estopped from pleading or proving that the title to the property in controversy was in his wife, because he executed the mortgage or bill of sale, and the fact that he did execute it and deliver it is a solemn admission on his part that he was the owner of the property in controversy. Gottschalk v. Klinger, 33 Mo.App. 410. (3) A mortgagor is estopped from setting up any defense to the validity or binding force and effect of his mortgage. He can not deny his title or assert that he had no right to mortgage the property or claim adversely to his mortgage. This would be a fraud upon the mortgagee and the courts would not permit it. 11 Am. and Eng. Ency. of Law (2 Ed.), 444; Gottschalk v. Klinger, supra; Rider v. Culp, supra; Teft v. Monson, 87 N.Y. 97; Fitzgerald v. Barker, 85 Mo. 20. (4) We concede that the statute removing the disability of witnesses by reason of interest (sec. 8918) has been so construed as to permit either husband or wife to testify for or against each other, provided the one offering to testify has a substantial interest in the controversy, as contended for by the respondent, who cites in support of this doctrine McKee v. Spiro, 107 Mo. 452; Brownlee v. Fenwick, 103 Mo. 420; O'Bryan v. Allen, 95 Mo. 68; Toovey v. Baxter, 59 Mo.App. 470. But we do not concede that this line of cases is a precedent to govern the court in the case at bar. Far from it. In the case at bar, Layson seeks to recover property mortgaged or pledged to him by bill of sale, to secure a debt admitted to be due from defendant to plaintiff in this case. And witness Eliza K. Cooper has no interest whatever in the result of this suit, although she might own the entire property. This is not one of the cases in which she has a substantial interest in the controversy. If the plaintiff is seeking to take her property to pay the debts of another person, she has her remedy at law in a suit to recover the specific property; or an action for tort against the officer taking the property. In either instance she has an independent action and can maintain it. And to permit the defendant in this case to take advantage of his own wrong and mulct the plaintiff in hundreds of dollars of costs upon such a state of facts as exists in this case, would not only be contrary to law but would be absolutely wrong and against the decisions of this court.

J. C. Wilson and Peery & Lyons for respondents.

(1) The case of Brinsmade v. Groll has been in effect overruled by a later case in the same court. It will be observed that the opinion in that case puts the disqualification of the wife solely on the ground that, though having an interest in the controversy, she was not a technical party to the record. This is the sum and substance of the ruling as appears from the opinion. But in the case of Rider v. Culp, 68 Mo.App. 527, where a wife was suing alone, upon a note in which her husband was payee, and which he had indorsed to her, the husband was held incompetent, solely because he had no substantial interest in the subject-matter of the action. It is conceded that if he had an interest he would be competent, although not a party to the record. The court says: "The statute removing the disability of witnesses by reason of interest (section 8918) has been so construed as to permit either husband or wife to testify for or against each other, provided the one offering to testify has a substantial interest in the controversy. McKee v. Spiro, 107 Mo. 452; Brownlee v. Fenwick, 103 Mo. 420; O'Bryan v. Allen, 95 Mo. 68. It affirmatively appears by the plaintiff's evidence that Rider (the husband) sold and transferred the note to plaintiff (the wife) which deprived him of all interest in the note itself. It is not necessary to decide whether his contingent liability as an indorser would qualify him to testify, as there is no evidence tending to prove that the necessary steps were taken to fasten such a liability on him. We must therefore hold that he was not a qualified witness, and that the court did right in refusing to allow him to testify." It is apparent from this extract from the case cited that there is now no conflict between the doctrine of the St. Louis Court of Appeals and this court, as announced in Toovey v. Baxter, 59 Mo.App. 470, and the original opinion in the case at bar. This being true, and the former decision of this court being undoubtedly correct, it would be improper, as well as a great hardship on the defendant, to transfer this case to the Supreme Court. It is well settled that the provision of the statute declaring the cases in which a married woman may testify, does not have the effect to exclude her except in those cases. But, upon the contrary, the statute being remedial, it is to be liberally construed, and the letter of this section will sometimes be enlarged so as to more effectually meet the beneficial end in view and prevent a failure of the remedy. Besides, if plaintiff transacted this business with defendant's wife, and if to refuse to permit her to testify would operate as a fraud upon defendant, she is competent, regardless of the statute. Cramer v. Hurt, 154 Mo. 117; Moeckel v. Heim, 134 Mo. 576; Ex parte Marmaduke, 91 Mo. 257; Hach v. Rollins (Mo.), 59 S.W. 232; Sanguinett v. Webster, 153 Mo. 367. (2) The judgment may well be affirmed upon either of several grounds, without reference to the competency of Mrs. Cooper to testify in her own behalf, on account of her interest in the suit. (a) As suggested in the opinion herein, if she did not own this property, she must have contracted with plaintiff as her husband's agent, and would therefore be competent on that ground. Long v. Martin, 152 Mo. 668; Kuenzel v. Stevens, 155 Mo. 280; McGuire v. DeFrees, 77 Mo.App. 280; Ingerman v. Weatherman, 79 Mo.App. 480. (b) Even if Mrs. Cooper was not competent, the plaintiff, by cross-examining her at length about matters not testified to by her in chief, waived any objection to her competency. Hume v. Hopkins, 140 Mo. 65; Nichols v. Nichols, 147 Mo. 403; Tierney v. Hannon, 81 Mo.App. 488; Ess v. Griffith, 139 Mo. 322; In re Soulard's Est., 141 Mo. 642; Borgess Co. v. Vette, 142 Mo. 560. (c) The pertinent facts testified to by Mrs. Cooper related entirely to her purchase of this property with her own separate means, and her sole ownership of it. The essential facts as to her ownership are established by the testimony of the other witnesses in this case. Where there is abundant proper evidence to justify the verdict, the testimony of an incompetent witness will be regarded as harmless and the judgment will not be disturbed on that account. Clark v. Cordry, 69 Mo.App. 6; Hume v. Hopkins, 140 Mo. 65; Hach v. Rollins (Mo.), 59 S.W. 234.

VALLIANT, J. Robinson, J., concurs; Marshall, J., concurs in the result; Brace, P. J., absent.

OPINION

VALLIANT, J.

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 that 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...