Liles v. Liles

• Decision Date: 20 June 1904
• Citation: 183 Mo. 326,81 S.W. 1101
• Parties: LILES v. LILES et al.
• Court: Missouri Supreme Court

81 S.W. 1101

183 Mo. 326

LILES v. LILES et al.

Supreme Court of Missouri, Division No. 1.

June 20, 1904.

EVIDENCE — LOST INSTRUMENTS — SECONDARY EVIDENCE — PRELIMINARY PROOF — SUFFICIENCY — QUESTION FOR TRIAL COURT — APPEAL — HARMLESS ERROR.

1. Loss of, or inability to find, a written instrument, the contents of which is sought to be shown by secondary evidence, must be shown by the best evidence obtainable, before secondary evidence as to its contents will be received.

2. The question of the sufficiency of preliminary proofs of loss to admit secondary evidence as to the contents of written instruments is to be determined only by the circumstances of a particular case, and rests largely in the discretion of the trial court.

3. Where the person who is entitled to the custody or control of a paper is inaccessible to the court, or beyond the reach of its process, or is not so situated that he can appear in court to testify as to the loss of the paper, the court may hear from others who know of the fact, and, if the proof of loss offered by them is satisfactory, it may then hear testimony as to the contents of the paper.

4. Where the court was satisfied that a paper containing an agreement between plaintiff and another was lost, or could not be found for use at the trial after proper search had been made for its discovery, its action in permitting secondary evidence to prove the contents of the paper was at most not such an error as to call for reversal of the judgment, which upon all the facts of the case seemed just and right.

5. The improper admission of testimony of plaintiff as to the contents of an agreement between himself and his brothers, who were dead, is not ground for a reversal of the judgment for plaintiff, where his testimony on the point was cumulative only.

Appeal from Circuit Court, Lincoln County; E. M. Hughes, Judge.

Action by Robert M. Liles against David Liles and others. From a judgment for plaintiff, defendants appeal. Affirmed.

Martin & Woolfolk and Josiah Creech, for appellants. Norton, Avery & Young, for respondent.

ROBINSON, J.

This is a proceeding by the plaintiff against his brothers and sisters to have partitioned 297.50 acres of land in Lincoln county, in this state, of which his father died seised in 1883. One Annie J. Forgey, the holder and owner of a note secured by a deed of trust upon the land sought to be partitioned, is also made a party defendant. After setting out the interest of the different parties in and to the land described, the petition proceeds: "That a deed of trust was executed to Nimrod Guy on this land. The amount thereof this plaintiff does not know, but the said deed of trust is now owned by Annie J. Forgey, the heir of Nimrod Guy, deceased. Plaintiff says that at the time of the execution of this deed of trust that he signed the same, but that the money received from said Guy as a consideration of said deed of trust was received by the defendants other than Annie J. Forgey herein, and that plaintiff received no part thereof, and that at the time this plaintiff executed said deed of trust to said Nimrod Guy that these defendants other than Annie J. Forgey promised in writing, and a written contract was made and signed, that this plaintiff should not be compelled to pay any part of the money received from Nimrod Guy and secured by said deed of trust, but defendants assumed and agreed and bound themselves to pay all of said deed of trust within five years from the time the same was executed, in consideration that they should have, use, and rent all the lands, and of this plaintiff's interest therein without charge for that time. Plaintiff says that the five years since the execution of said deed of trust has expired, and that there still remains due, as he is informed, on said deed of trust, several hundred dollars, and he asks that the said deed of trust be made on the interest of defendants herein, and that his interest in said lands be released entirely therefrom. Plaintiff further states that the defendants, as tenants in common with him, are now in possession of said lands and using the same, and have since the death of their mother, which occurred about ____ day of March, 1898, and that this plaintiff has received no compensation for his interest in said lands, as rent or otherwise, and he asks the court to make an accounting as to value of rents and profits." The prayer of the petition then is that judgment be entered by the court, partitioning the lands between the plaintiff and defendants in accordance with their interests, and that the amount the court may find to be due the defendant Annie J. Forgey on the note and deed of trust held by her "shall be made a first lien upon the part or portion of land set off to the defendants, other than said Annie J. Forgey, and if the same is not paid off or discharged by them, that an order and judgment of the court be made directing the beneficiary therein (Annie J. Forgey) to first proceed against defendants' interests in said land before subjecting to sale the interest of this plaintiff, and for such other and further orders and decrees as may be just and proper."

In their answer the defendants, except Annie J. Forgey, denied that they had agreed with the plaintiff that they would pay off the note and deed of trust upon the land in controversy, on condition that plaintiff would let defendants and their two brothers, Arthur and Lafayette Liles, then living, have the use and enjoyment of his interest in said lands for five years free of charge, and further they deny that they received any special benefit on account of the making and execution of the note and deed of trust in question that was not shared by the plaintiff in common with them and their deceased brothers, Arthur and Lafayette Liles. They also state and charge that said note and deed of trust was made by themselves, the plaintiff, and their said brothers Arthur and Lafayette Liles, for the purpose of raising funds with which to pay off a balance then due on a prior note and deed of trust on the land in suit, made by their father, Daniel W. Liles, in his lifetime, and to prevent a sale of said lands, and to protect the interest of all the heirs of their father in said lands. Further answering, the defendants say that on said last-named note, now held by Annie J. Forgey, they have paid in all the sum of $1,263, and that plaintiff has failed and refused to pay any sum whatever upon or on account of said note, and that in addition to said sums so paid by them on said note they have been compelled to pay, and have paid, large sums of money to discharge tax liens against said lands, and to keep up the improvements thereon, and to prevent its general destruction, and that plaintiff has refused to pay or to...