McCullough v. McCullough

• Court: United States State Supreme Court of Missouri
• Writing for the Court: SCOTT
• Citation: 31 Mo. 226
• Parties: MCCULLOUGH et al., BY GUARDIAN, Defendants in Error, v. MCCULLOUGH, Plaintiff in Error.
• Decision Date: 31 October 1860

31 Mo. 226

MCCULLOUGH et al., BY GUARDIAN, Defendants in Error,
v.
MCCULLOUGH, Plaintiff in Error.

Supreme Court of Missouri.

October Term, 1860.

1. The supreme court was instituted to determine questions of law, and not to try matters of fact. It can not weigh evidence.

2. A case for the specific performance of a parol contract for the conveyance of land, is required by law to be tried by the court, and it is therefore discretionary with it whether any issues shall be submitted to a jury.

3. A guardian is a competent witness in favor of his ward, whose suit he conducts. (Murphy v. Murphy, 24 Mo. 526, affirmed.)

4. A widow is not disqualified as a witness in favor of her children, who are prosecuting an action for the recovery of land, by the fact that if they prevail she will be entitled to dower in it. Such action is not for her immediate benefit.

5. The most that can be said in such case is that she is interested in the judgment, because it might be evidence for her in a future action; which objection would not disqualify her, under the seventh section of the act concerning witnesses. (R. C. 1855, p. 1579.)

Error to Marion Circuit Court.

The plaintiffs Edward and Delia McCullough, by their mother and guardian Ann McCullough, brought this action in 1858 against the defendant James McCullough to have the title of about a hundred acres of land vested in them. The petition sets out that the defendant, in 1845, gave the said land to his son Arthur H. McCullough, the father of the plaintiffs, in consideration of natural love and affection, and of labor rendered by said Andrew to defendant; that defendant promised said Andrew that if he went upon and improved said land he (the defendant) would execute to him a deed therefor; that in pursuance of said promise and agreement, the said Andrew went on and improved said land in the sum of five hundred dollars; that he lived on it from May, 1845, till 1849, when he went to California, leaving the plaintiffs and their mother in possession, where they remained till 1850; that the said Andrew died in California, and the defendant now refuses to comply with his said agreement.

The defendant, in his answer, puts in issue the material facts of the petition. He denies that he gave the land to

[31 Mo. 227]

said Andrew, or agreed to execute a deed therefor, but avers that he was allowed by defendant to take possession of said land to make therefrom a subsistence for himself and family; that the improvements mentioned in the petition were made principally by defendant and at his expense, and that for any labor expended by said Andrew on the land, he had been sufficiently remunerated by the profits thereof; that at the time the alleged gift is said to have been made, there was a deed of trust on the land which was subsequently released, and a mortgage was put upon it by defendant in September, 1845.

A motion was made by the defendant to have Ann McCullough, the widow of Andrew McCullough, and his administrator, made parties plaintiffs to the action; which was overruled. When the case came on for trial the defendant demanded a jury, which the court refused. The issues were then tried by the court. Ann McCullough, the mother and guardian of plaintiffs, and widow of Andrew H. McCullough, was offered as a witness. The defendant...