Lewis v. West

• Decision Date: 06 December 1886
• Citation: 23 Mo.App. 503
• Parties: M. D. LEWIS, ADMINISTRATOR, ETC., OF WILLIAM F. ROGERS, Plaintiff in Error, v. H. WEST, ADMINISTRATOR, ETC., OF THOMAS J. ROGERS, Defendant in Error.
• Court: Kansas Court of Appeals

23 Mo.App. 503

M. D. LEWIS, ADMINISTRATOR, ETC., OF WILLIAM F. ROGERS, Plaintiff in Error, v. H. WEST, ADMINISTRATOR, ETC., OF THOMAS J. ROGERS, Defendant in Error.

Court of Appeals of Missouri, Kansas City.

December 6, 1886

ERROR to Cass Circuit Court, HON. NOAH M. GIVAN, Judge.

Affirmed.

Statement of case by the court.

This was an action by the plaintiff, as administrator of the estate of Wm. F. Rogers, against the defendant, as administrator of the estate of Thos. J. Rogers, on a promissory note executed by Thos. J. Rogers and payable to William F. Rogers. This proceeding was instituted in the probate court, where the plaintiff had judgment, from which the defendant appealed to the circuit court.

William F. Rogers and Thos. J. Rogers were brothers, sons of Willis C. Rogers, who died in Kentucky, seized and possessed of certain real estate, leaving a will. By his will it was provided that all of his real estate be sold and the proceeds thereof be distributed in the manner provided by the will. As to his son, William F. Rogers, it was provided as follows:

" To my son, William F. Rogers, I will and bequeath out of the proceeds of said sale the sum of one dollar, it being his full share of my estate, both real and personal."

The father, Willis C. Rogers, died February 6, 1883. On March 13 1883, Thos. J. Rogers executed the note in suit in consideration of William F. Rogers executing a deed, the granting clause of which, omitting formal parts, is as follows: " I, William F. Rogers, * * * do hereby grant bargain and sell and convey to the said Thomas J. Rogers, his heirs and assigns forever, all and singular my right, title and interest, in and to a certain undivided tract of land situate * * *, and of which said tract of land the late Willis C. Rogers died seized, and bounded as follows: * * * and all the estate, title and interest of the said William F. Rogers, either in law or in equity of, in and to the said premises * * *."

The said deed contained the following covenant, " And the said William F. Rogers, for himself and for his heirs, executors and adminstrators, does hereby covenant with the said Thomas J. Rogers, his heirs and assigns, that he is the true and lawful owner of the said premises, and has full power to convey the land. That the title so conveyed is clear, free and unincumbered, and, further, that he will warrant and defend the same against all claim or claims of all persons whomsoever."

William F. Rogers died in September, 1883; and Thomas J. Rogers died a few days after his brother died.

That the note and deed were executed in consideration of each other was made to appear by oral testimony. It was also shown by such testimony that William F. Rogers intended to convey and that Thos. J. Rogers intended to buy the interest which William F. Rogers would have had as an heir in his father's estate, if it had not been for the will made by his father. The defendant introduced oral testimony tending to prove that, at the time of the execution of the deed and note, it was understood and agreed between the parties that, as a condition precedent to any liability on the part of Thomas J. Rogers on account of said note, William F. Rogers would set aside the will of the said Willis C. Rogers, and place Thomas J. Rogers in possession of the land mentioned in the deed. To the introduction of all which evidence the plaintiff objected.

For the defendant the court, who tried the case without the intervention of a jury, gave the following declarations of law:

" 1. If the court shall believe and find from the evidence that the note sued upon was executed by Thomas Rogers to William F. Rogers for the purchase price of real estate described in the deed read in evidence from said William Rogers, and that the said William Rogers was not the owner of real estate nor any interest therein, then there was no consideration for said note, and the finding should be for the defendant."

" 2. If the court shall believe and find from the evidence that said William Rogers was son of Willis C. Rogers, deceased, and that prior to the execution of the note sued on said Willis C. Rogers had made a will by the terms and provisions of which he bequeathed to said William F. Rogers the sum of one dollar only, and the said William F. Rogers undertook and promised the said Thomas J. Rogers to have said will set aside, and put said Thomas J. Rogers in peaceable possession of such interest in or property belonging to the estate of said testator as he, the said William F. Rogers, would have been entitled to if said will were set aside, and that said note was executed for such interest, on the faith and promise aforesaid, that said will would be set aside and said Thomas J. put in possession of said property; and if the court further believe and find from the evidence that said William F. Rogers failed to have said will set aside and put said Thomas J. Rogers in possession of such interest or property, then the consideration for said note has failed, and the finding should be for the defendant."

The court found for the defendant and the plaintiff has appealed.

C. W. SLOAN, for the plaintiff in error.

I. The court should have sustained the demurrer of plaintiff to defendant's evidence, there being no legal or competent evidence which constituted a defence.

II. The court erred in admitting parol testimony to vary and contradict the terms of the note sued on, or to show that the same was only to be paid conditionally. Jones v. Jeffries, 17 Mo. 577; Smith's Adm'r v. Thomas, 29 Mo. 307; Benson's Adm'r v. Harrison, 39 Mo 393; Bunce, Adm'r, v. Beck, Ex'r, 43 Mo. 266; Ely v. Kilborn, 5 Denio (N. Y.) 514.

III. The court erred in admitting the evidence of J. P. Rogers as to declarations made by William F. Rogers, long subsequent to the execution of the note, there being no consideration for the promise then made. Cases cited supra; Wharton v. Foundry Co., 1 Mo.App. 577; Pearson v. Carson, 69 Mo. 550; Henning v. Ins. Co., 47 Mo. 431.

IV. The court erred in giving instructions asked by defendant, and refusing instructions asked by plaintiff--no fraud or misrepresentation in procuring the note being shown by the evidence. Sect. 547, Rev. Stat.; Crow v. Harmon, 25 Mo. 417; Carr v. Card, 34 Mo. 573; Williams v. Jensen, 75 Mo. 681; Armstrong v. Winfrey, 61 Mo. 354.

V. There was sufficient consideration for the execution of the note. See cases last cited. The evidence tended to show defendant was in possession of land at his death. Conner v. Eddy, 25 Mo. 75; Mitchell v. McMullen, 59 Mo. 252; Cartwright v. Culver, 74 Mo. 179; Hunt v. Marsh, 80 Mo. 398.

VI. There being no evidence of fraud or misrepresentation, and possession having been given, and no ouster or eviction shown, there was no failure of consideration. Cases last cited; Wheeler v. Shandly, 50 Mo. 509.

VII. The court erred in admitting evidence of the deed and will and of witnesses and depositions, because no defence was shown. And so as to appointment of administrator in Kentucky and of committee. And so in admitting hearsay evidence as to how the possession of the land was obtained.

WOOLDRIDGE & DANIEL, for the defendant in error.

I. The defence is a failure of consideration. In an action between the original parties the consideration may be inquired into. Klein v. Keyes, 17 Mo. 326; Sect. 3725, Rev. Stat.; Williams v. Mellon, 56 Mo. 262; Boogher v. Knapp, 76 Mo. 455; Murphy v. Gay, 37 Mo. 535.

II. There was no error in giving instructions asked by defendant. It was based on the theory that the consideration for the note had failed, and all the evidence offered by the defence sustained the instruction. So there...