Poe v. Domec

• Decision Date: 31 October 1873
• Citation: 54 Mo. 119
• Parties: ISAIAH H. POE, et al., Appellants, v. ANTOINE DOMEC, et al. Respondents.
• Court: Missouri Supreme Court

54 Mo. 119

ISAIAH H. POE, et al., Appellants,

v.ANTOINE DOMEC, et al. Respondents.

Supreme Court of Missouri.

October Term, 1873.

Appeal from Cape Girardeau Circuit Court.

Lewis Brown, for Appellants.

I. The statute of limitations, has never been permitted to be pleaded in bar of a trust, to cover up a mistake, or to take the benefit of a fraud by the party pleading it. (1st. Danl. Ch. Pr. [3d Ed.] 666, et seq.;Kane vs. Bloodgood, 8 Johns. Ch., 90; Keeton vs. Keeton, 20 Mo., 530; Johnson vs. Smith, 27 Mo., 591; Fugate vs. Pierce, 49 Mo., 441; Ang. Lim. [4 Ed.] § 384 and notes.)

II. The statutes and the repeated rulings of this court, are against the admissibility of defendant Poe's evidence for any purpose whatever--“in actions 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. (2 W. S., 1372, § 1; Stanton vs. Ryan, 41 Mo., 510; Johnson vs. Quarles, 46 Mo., 423; Anderson vs. Hance, 49 Mo., 159.)

Louis Houck, for Respondent.

I. The defendant Poe was a competent witness under the

statute. The issue on trial here was not the contract between the defendant Poe and his son W. H. Poe. The issue was: Did defendant Poe destroy the deed he made, (appellants assume the existence of the contract,) after the death of his son? (Looker vs. Davis, 47 Mo., 140.)

II. The statutes of limitations, even assuming that defendant Poe was guilty of the frauds alleged, were a complete bar to the action of the plaintiffs.

III. In order to avoid the statutory bar, it was incumbent on the appellants to show, that they came within the saving clause of the statute. Appellants failed to do so.

IV. The defendant Poe was in the actual possession of the property from 1845-- the time of the death of Hastings--to the time of sale to Domic in 1868. Nor did he pay any rent to Mrs. Barbara Poe, the widow, for the land. He at one time shortly after the death of Hastings Poe, handed her three dollars, and then said “there is the money for the rent of your house,” and this amount was paid in 1845, more than 27 years ago.

V. The rule is: “Whenever a person takes possession of property in his own name, and is afterwards by matter of evidence, or construction of law, changed into a trustee, lapse of time may be pleaded in bar.” (Keeton vs. Keeton, 20 Mo., 531; Perry Trusts, §§ 229 239.)

VORIES, Judge, delivered the opinion of the court.

This was a suit in chancery commenced in the Cape Girardeau Circuit Court.

The charges in the petition are substantially, that sometime in the year 1832, one William H. Poe entered upon lands described as “out lot number fifty-three situate near the city of Cape Girardeau, said lot being part of the confirmation made to Lewis Lorimer, and in survey number two thousand one hundred and ninety”; that said William H. Poe resided on said lands claiming them as his own openly, adversely and notoriously, which notorious possession under color of title and claim of right, was notorious in the community up to the date of his death in the year 1845; that when he died he left his widow Barbara E. Poe, his daughter Sarah E. Poe (since intermarried with Oscar E. Pruny,) and Isaiah H. Poe as his only heirs and representatives; that on the first day of September 1869, the said heirs for a valuable consideration conveyed one undivided half of said lands to George G. Kimmel and Lewis Brown their co-plaintiffs; that the said William H. Poe at the time of his death was seized and possessed of said land in fee simple, and left his said heirs in the peaceable and lawful possession thereof; that sometime prior to the death of said William H. Poe, the defendant Isaiah Poe duly made and delivered to the said William H. Poe and his heirs, for a good consideration, a conveyance of said land by covenants of general warranty; that by the fraud and deceit of said defendant Isaiah Poe, said conveyance was never put upon the records of said county; that after the death of said William H. Poe, the defendant Isaiah Poe, intending to cheat and defraud, said heirs, did in violation of law procure himself to be appointed administrator of the estate of said William H. Poe; that in furtherance of said fraud, said Isaiah Poe failed to take the oath required of him as such administrator; that he failed to make a full, true or perfect inventory of said land and the effects of said estate; that in furtherance of said fraudulent intent, he did demand and receive all of the books, papers and vouchers belonging to said estate, of and from the said Barbara E. Poeamong which, was the conveyance of said land by him to said William H. Poe; that after he had so fraudulently obtained the possession of said conveyance, he fraudulently destroyed the same and failed to put said conveyance in the schedule of the property of said estate; that as the administrator of said estate, in the year 1846 he took possession of said land, and has ever since received the rents and profits thereof, and has failed to account therefor.

The petition alleges that on the 15th day of August 1869, the said Isaiah Poe further intending to cheat and defraud the heirs of said estate, did pretend to sell and convey said land to said Antoine Domic; that said Antoine Domic well knowing all of the facts aforesaid, did fraudulently pretend to purchase the same from said Poe; that all of said facts were and are of general notoriety; that the reasonable worth of the yearly rents of said land is two hundred dollars per annum. Wherefore it is prayed, that the conveyance from Isaiah Poe to Antoine Domic as aforesaid, be declared null and void; that the title to said land be adjudged in the plaintiffs, and that they have judgment for the rents and profits, at the rate of two hundred dollars per year, from 1846, and further, there is a prayer for general relief.

To this petition the defendants answered separately. The defendant Isaiah Poe by his answer denies all of the material allegations in the petition, except that he admits that he has been in the exclusive possession of the land in controversy ever since the year 1846, and avers that he was in the possession of the same for a number of years prior thereto. He then sets up the statute of limitations averring that neither the plaintiffs or their predecessors or those under whom they claim have been seized or possessed of the land for more than ten years before the commencement of the suit. He also sets up as a defense that no right of action accrued to plaintiff's within twenty years before the filing of the petition.

The defendant Domic by his answer denies all of the material allegations in the petition which could effect his rights, and claims to be an innocent purchaser of the land in question for a full consideration without any notice of the plaintiffs' claim, or that they pretended to claim any right or interest in the land. He also pleads that no right of action has accrued to plaintiffs within twenty years before the filing of the petition, and also, that none has accrued within five years, and that neither the plaintiffs, their predecessors or ancestors, or any person under whom they claimed had been seized or possessed of the land or any part thereof, for more than ten years before the commencement of the suit.

The plaintiffs replied to the answer of the defendant, Domic, denying the new matter set up therein. No replication was made to the answer of defendant, Poe.

Afterwards a trial was had, and the court, after hearing the evidence, found for the defendants, and dismissed plaintiffs' bill rendering judgment against them for costs.

The plaintiffs in due time, filed a motion for a new trial, on the ground, that the finding and judgment were against the law and were against the evidence; and that the finding was for the wrong party, as shown by the evidence.

This motion for a new trial being overruled by the court, the plaintiffs again excepted and appealed to this court.

With the view that I entertain of this case, it will only be necessary to pass upon one question in the case; and it will only become necessary, in a general way, to refer to the evidence in the cause. There is a great mass of evidence, but it tends to prove but few facts. It may, however, be proper to refer to a preliminary question arising in the case, before the consideration of the main question involved.

Before the commencement of the trial the plaintiffs moved the court to suppress the deposition of the defendant Poe, taken and filed in the cause by defendants.

The grounds relied on to suppress the deposition, were, First--That the defendant Poe, was not competent to testify in the case, for the reason that the deed, attempted to be established in the case, was charged to have been executed by said witness to William H....