Patton v. Fox

• Decision Date: 18 June 1902
• Citation: Patton v. Fox, 169 Mo. 97, 69 S.W. 287 (Mo. 1902)
• Parties: PATTON et al. v. FOX et al.
• Court: Missouri Supreme Court

69 S.W. 287

169 Mo. 97

PATTON et al. v. FOX et al.

Supreme Court of Missouri.

June 18, 1902.

EJECTMENT — PLEADING — GENERAL DENIAL — FORGERY — WITNESSES — COMPETENCY — TRANSACTIONS WITH DECEDENT.

1. Under a general denial in ejectment, defendants were entitled to show that a deed of trust, under which plaintiffs purchased, was a forgery, and Rev. St. 1899, § 746, providing that when a suit is founded on an instrument in writing charged to have been executed by the other party, and not alleged to be lost or destroyed, its execution shall be deemed confessed, unless denied by a verified answer, did not apply.

2. Under Rev. St. 1899, § 4652, providing that where one of the original parties to the contract or cause of action in issue and on trial is dead the other party shall not be admitted to testify in his own favor, it was error to permit defendants in ejectment to testify that a deed of trust purporting to be executed by them to a deceased grantee, and under which plaintiffs claimed, was a forgery.

3. A justice of the peace testified that his signature and certificate to a deed of trust introduced by plaintiffs in ejectment were genuine, but that he had no recollection of the execution of the deed; that he did not remember that the three parties had ever been before him to acknowledge a deed; that he did not know, and had never seen, one of the parties thereto; and that the only way he could conceive that he could have made the certificate was that some person might have represented that the deed was merely intended to take the place of one that was already executed, but was defective; but that he had no recollection of such transaction. Held insufficient to support a claim that the deed was a forgery.

In banc. Appeal from circuit court, Chariton county; Jno. P. Butler, Judge.

Ejectment by J. M. Patton and another against Minnie E. Fox and another. From a judgment for defendants, plaintiffs appeal. Reversed.

Ejectment for 50 acres of land in Chariton county. The petition is in the usual form. The defendants are Minnie E. Fox and her husband, W. H. Fox. The answer of W. H. Fox is a general denial. The answer of Minnie E. Fox is a general denial, with a special plea that she is the owner in fee simple of the land, and that it is her homestead; but the allegation as to homestead she admitted on the trial was not the fact. The case was tried by the court without a jury, and judgment was entered for the defendants, from which the plaintiffs appealed. The trial developed the following facts and proceedings: The plaintiffs offered in evidence a deed of trust dated April 25, 1893, purporting to have been made by Minnie E. Fox and William H. Fox, her husband, parties of the first part, to H. O. Grubbs, trustee, party of the second part, and Delia Fox, wife of James R. Fox, party of the third part, conveying the land to secure a note of even date, for $770, payable two years after date to the order of Delia Fox, wife of James R. Fox, signed "Minnie E. Fox, William H. Fox." This deed of trust appears to have been regularly executed and acknowledged by Minnie E. Fox and William H. Fox on May 8, 1893, before Wm. Clark, a justice of the peace in Chariton county, and was recorded in that county on May 10, 1893. The defendants objected to the deed of trust on the ground "that it never was executed by these parties as it appears to have been by the certificate of the justice. Mrs. Fox never signed it, and never appeared before the officer, and never executed this deed at all." The court overruled the objection, and the deed of trust was read in evidence. The plaintiffs then offered in evidence a deed from the sheriff, acting as trustee under said deed of trust, dated November 30, 1895, to the plaintiffs, conveying the land to the plaintiffs by virtue of the foreclosure of the deed of trust. The defendants objected to this deed because the deed of trust was a forgery, and therefore it afforded no basis for the deed to rest upon. But the court permitted the deed to be read in evidence. The value of the rents and profits and the damages having been agreed upon, the plaintiffs then rested. The defendants then called Mrs. Minnie E. Fox, as a witness, and it appearing from her testimony that Delia Fox, the payee of the note, and the cestui que trust in the deed of trust, under which the plaintiffs claim title, was dead, the plaintiffs for this reason objected to Mrs. Fox testifying. The court overruled the objection, and plaintiffs duly saved an exception to the ruling. Thereupon Mrs. Fox testified she never signed or executed or acknowledged the note or deed of trust, never appeared before Wm. Clark, the justice of the peace, at any time, and never saw him until the day of the trial. She also testified that she never signed, executed, or acknowledged a deed of trust, at any time, upon the land, to Delia Fox, before Justice Shaughnessy, and that she never signed, executed, or acknowledged any deed of trust upon the land, for any amount, at any time, or to any person, and never heard of any such pretended deed of trust until 1895, when the plaintiffs were about to foreclose the deed of trust offered in evidence by them. The plaintiffs further objected to all this testimony, because the issue of the execution of this deed was not tendered by a plea by the defendants under oath denying the execution of this instrument. The court overruled the objection, and plaintiffs duly excepted. The defendants also called as a witness William H. Fox. The plaintiffs likewise objected to his competency as a witness because the other party to the contract, Delia Fox, was dead, and also because the execution of the deed of trust was not denied under oath, or any issue tendered as to the genuineness of the note and deed of trust. The court overruled the objection, and the plaintiffs excepted. Thereupon William H. Fox testified that he never signed, executed, or acknowledged the deed of trust, and never heard of it until about two years after its date, and that Justice Clark never did any business whatever for him; that the signature of Rebecca Fox as a subscribing witness to the deed of trust was not the signature of Rebecca Fox, who was his sister. The witness then made the following surprising statements, to wit: That in April, 1893, his brother, James Fox, wanted to start in business, and wanted to buy a stock of drugs, and asked him "to help him out"; that, in order to do so, he (William H. Fox) made a note for $770 to the order of Delia Fox, the wife of James R. Fox, and secured it by a deed of trust on this 50 acres of land; that he signed his own name and the name of his wife, Minnie E. Fox, to the note and deed of trust, and that he acknowledged the deed of trust for himself and also for his wife before Squire Shaughnessy; that his wife was in the kitchen, cooking supper, and he asked the squire if it would not do just as well for him to sign and acknowledge the deed for his wife, and the squire said it would, and so it was done; that the note and deed of trust were delivered to James R. Fox to help him to get the drugs; that this note and deed of trust was never paid, and he does not know where they are, but that the deed of trust has been released upon the records of Chariton county. This witness further testified that on May 8, 1893, the day the deed of trust involved in this case was acknowledged, he procured his mother, Elizabeth Laird, formerly Fox, and he husband, to execute a deed to his wife to perfect the title to this land in her; that such deed was acknowledged before Wm. Clark, the said justice of the peace, and was attested by his sister, Rebecca Fox, as a subscribing witness. He also admitted that after this note and deed of trust became due he wrote to the plaintiffs, asking time in which to pay, and proposed to them to execute a new note and mortgage on this 50 acres and the 80 acres owned by him, and which adjoined this land, for $1,600 or $1,700, to cover this $770 and a mortgage that was then on the 80 acres, and that the plaintiffs agreed to this, provided he would also include in the new deed of trust $150 that James R. Fox owed them on open account, and would deposit with the sheriff $50, or a good 60-day note for that amount, to cover all expenses of making the new loan, examination of title, etc.; and that the matter then fell through. The defendants then called as a witness the justice of the peace, Wm. Clark, who testified that the signature to the acknowledgment of the deed of trust in question was his genuine signature, but that he had no recollection whatever about the execution of the deed of trust; did not remember of William H. Fox, whom he had known for years, or Mrs. Minnie E. Fox, whom he had never seen until the trial, or Miss Rebecca Fox, whom he had also known for quite a while, ever coming before him at any time or ever acknowledging any deed of trust as parties or witness; that the only way that he could conceive that he could have certified to the acknowledgment of this deed of trust was that somebody might have shown him that this deed of trust was to take the place of another similar deed of trust that had been properly acknowledged, but...