Messimer v. McCrary

• Decision Date: 23 January 1893
• Citation: 21 S.W. 17,113 Mo. 382
• Parties: MESSIMER v. McCRARY et al.
• Court: Missouri Supreme Court

21 S.W. 17

113 Mo. 382

MESSIMER v. McCRARY et al.

Supreme Court of Missouri, Division No. 1.

January 23, 1893.

COMPETENCY OF WITNESS — DEATH OF PARTY — DISPOSITION.

1. In ejectment by the widow of B., as his heir, against the tenants of the heirs of O. and such heirs, the latter of whom claim title through an alleged lost deed from B. to O., the heirs of O. are incompetent as witnesses to establish the deed, under Rev. St. 1889, § 8918, which provides that, in actions where one of the original parties to the contract or cause of action is dead, the other party cannot testify either in his own favor or in favor of any party claiming under him; and no party to such suit, whose right of action or defense is derived from one who is, or, if living, would be, subject to the foregoing disqualification, shall be admitted to testify in his own favor.

2. The fact that the alleged lost deed was signed also by plaintiff to release her dower does not render the heirs of O. competent witnesses under the rule that where a contract is entered into by a party with two persons, and only one of them is dead, the other party is not disqualified, since a wife, by joining in her husband's deed to relinquish her dower, does not become a party to the contract between her husband and the vendee, and for the further reason that, O. being dead, she, also, is incompetent to testify.

3. The fact that the heirs of O. withdraw from the case as defendants does not render them competent to testify, on the ground that they are no longer parties to the action, testifying in their own favor, since they are the real parties in interest, the other defendants being merely their tenants.

4. The deposition of a witness who, at the time it is offered in evidence, is incompetent to testify because of the death of a party to the cause of action, is not rendered admissible by the fact that it was taken in such person's lifetime, since the competency of a witness to testify can only be determined when his deposition is offered on the trial, at which the deposition stands for the witness. Parties have no vested rights in the testimony of a witness.

Appeal from circuit court, Caldwell county; James M. Davis, Judge.

Action of ejectment by Mary F. Messimer against Warren McCrary and others. There was a judgment for defendants, and plaintiff appeals. Reversed.

Wm. A. Wood, Thos. J. Porter, Upton M. Young, and Silver & Brown, for appellant Crosby Johnson and Huston & Parrish, for respondents.

BRACE, J.

This was an action in ejectment for 240 acres of land in Caldwell county, instituted against Warren and Millard F. McCrary, to which the other defendants, under whom the McCrarys were holding, and who are the heirs at law of James L. Orr, Sr., deceased, were on their own motion made parties defendant. The case was tried by the court without a jury on the petition, the amended answer, in which all the defendants joined, and the reply thereto, and a judgment rendered for the defendants, from which the plaintiff appeals. Both parties claim under Charles C. Birch, deceased, who was seised in fee simple of the land, — the plaintiff, who was his wife, as his heir at law, through a deceased son of the marriage; and the defendants under a lost deed alleged to have been executed and delivered by the said Birch in his lifetime to the said James L. Orr, Sr., deceased, conveying said land to said Orr, Sr., in which deed the plaintiff, his then wife, joined, relinquishing her dower. The only evidence introduced to prove the loss, execution, and delivery of said deed was the deposition of James L. Orr, Jr., a son, and one of the heirs at law of the said James L. Orr, Sr., who had on his own motion become a party defendant to the action. The question on the record to be decided in the case is whether under the statute the said Orr, Jr., was a competent witness to make such proof.

1. The statute governing the question, as amended in 1887, reads as follows: "No person shall be disqualified as a witness in any civil suit or proceeding at law or in equity by reason of his interest in the event of the same as a party or otherwise: * * * provided, that in actions where one of the original parties to the contract or cause of action in issue and on trial is dead, or is shown to ...