Morey v. Staley

• Decision Date: 31 October 1873
• Citation: 54 Mo. 419
• Parties: NELSON L. MOREY, et al., Defendants in Error, v. MARY E. STALEY, et al., Plaintiffs in Error.
• Court: Missouri Supreme Court

54 Mo. 419

NELSON L. MOREY, et al., Defendants in Error,

v.MARY E. STALEY, et al., Plaintiffs in Error.

Supreme Court of Missouri.

October Term, 1873.

Error to Perry Circuit Court.

Johnson & Nell, for Plaintiffs in Error.

I. The declarations of a party in connection with acts of ownership are admissible. (1 Phil. Ev., 217.)

Robinson & Clardy, for Defendants in Error.

I. The declarations of a party in possession are only admissible to explain such possession, and only then when they are against the interest of the possessor. (1 Phil. Ev. [3d Ed.], 193, 194, and foot-note 1 and authorities there cited; Peaceable vs. Watson, 4 Taunt., 16; West Cambridge vs. Lexington, 2 Pick., 536; Little vs. Libbey, 2 Greenl., 242; Doe vs. Pettitt, 5 B. & Ald., 223; Criddle vs. Criddle, 21 Mo., 522; Turner vs. Belden, 9 Mo., 797; Cavin vs. Smith, 24 Mo., 221; Watson vs. Bissell, 27 Mo., 220; Burgess vs. Quimby, 21 Mo., 508; Wood vs. Hicks, 36 Mo., 326; Salmon's Adm'r vs. Davis, 29 Mo., 181; Curry vs. Lackey, 35 Mo., 389; Tucker vs. Frederick, 28 Mo., 574; Howell vs. Howell, 37 Mo., 124; Carne vs. Nicoll, 1 Bing. [N. C.] 430; Smith vs. Martin, 17 Conn., 399; Doe vs. Williams, Cowp., 621; Gibbeney vs. Marday, 34 N. Y., 301; Keator vs. Dimmick, 46 Barb., 158; Barker vs. Ray, 2 Russ., 63; Davies vs. Pierec, 2 T. 53; Doe vs. Jones, 1 Camp., 367; 3 Am. Law Reg. [N. S.], 650.)

NAPTON, Judge, delivered the opinion of the court.

This is a proceeding to obtain a decree of title to a tract of land, lying on the Mississippi river in Perry county. The parties to the suit, plaintiffs and defendants, are the heirs of one Anson Morey, deceased.

The legal title to this land was beyond controversy in the plaintiffs, or rather two of them, who were sons of Anson Morey, from 1854 up to 1863. In that year the father, who had been before that acting as attorney in fact for his two sons, who lived in California, mortgaged the land as attorney in fact to secure some money he borrowed, and upon paying off the mortgage took a deed to himself--and in this way, upon his death in 1870, the legal title remained in him--and the land would of course go not only to the plaintiffs, but to the defendants who are also his heirs, unless the court would decree the legal title to the plaintiff.

And whether the two sons, plaintiffs were the real owners of this land, in equity as well as law, or the father, is the question of fact which was tried by the Circuit Court, on depositions and oral evidence, and found by that court, in favor of plaintiffs.

The Circuit Court found all the allegations of the petition to be true, and so far as the deeds, powers of attorney or other papers of record are concerned, no objection is made.

It seems that in 1854 the plaintiffs, Nelson S. and Anson H. Morey, bought this land for $545, and a deed was made to them, that they executed a power of attorney to their father, authorizing him to sell it; that he did sell it in 1857, and to secure the purchase money took a deed of trust to his sons; and that it was sold under that deed and bought in by him, and the conveyance made by the trustee was to his sons, the plaintiffs; that in 1858, the sons, the plaintiffs, executed another power of attorney to their father, under which in 1859 he conveyed to one Jones, to secure the payment of $800 he borrowed on his own account; that he paid this $800 in 1863 and at his request Jones made a deed to him and not to his sons, which deed was duly recorded. And this left the legal title in the father at the time of his death in 1870.

The theory of the defense is, that this land was originally bought with the father's money, that the title was put in his two sons then in California to enable him to keep off his creditors; that this device was adhered to so long as the father was in a state of pecuniary embarrassment, but when he became prosperous and the necessity ceased of protecting his lands by holding them in the name of his sons, he took the title in himself, and that the court should allow it there to remain.

Upon the trial the defendants offered to prove that the father, whilst in possession of the land, said it was his, and these declarations the judge excluded and this exclusion is made a point. Declarations by a party in possession explanatory of that possession and disclaiming title are always admissible because they are admissions against the party making them; but that a party can build up a title by his own declarations is not so clear. The declarations of the father in this case, disclaiming any title, were properly admitted--his declarations asserting title and ownership were excluded--and we think rightly. (Turner vs. Belden, 9 Mo., 797.)

The only other point of law made, during the trial, was, that the court allowed two witnesses who lived in Illinois, and who wished to get home to be examined before the court took up the case. The proceeding was before the court as a court of equity, and the time of examining witnesses was a matter in the discretion of the judge.

This court is not bound by a decree or judgment in a case of this kind, to regard the opinion of the court below on the facts as conclusive here, as it would be in jury trials or trials by the court, where juries are dispensed with. This court may examine and decide the case without...