Priddy v. Boice

• Decision Date: 22 February 1907
• Parties: PRIDDY et al., Appellants, v. BOICE
• Court: Missouri Supreme Court

99 S.W. 1055

201 Mo. 309

PRIDDY et al., Appellants, v. BOICE

Supreme Court of Missouri, Division One

February 22, 1907

Appeal from Jackson Circuit Court. -- Hon. Andrew F. Evans, Judge.

Affirmed.

Samuel P. Forsee, William C. Forsee and H. H. McCluer for appellants.

(1) Refusal of change of venue a reversible error. (a) The court erred in not changing the venue in pursuance of the application filed November 5, 1902, by sending the cause to some county other than Jackson county. The transfer of the cause to Division 5 of the same court was not a change of venue. State v. Lehman, 182 Mo. 458; State ex rel. v. Flournoy, 160 Mo. 324; Railroad v Perkins, 125 Ill. 127; Meyer v. Walker, 31 Ill 353. (b) It was reversible error for Judge Gibson in Division 1 of said court to refuse from November 6, 1902, to November 29, 1902, to pass on this application. He erred in so refusing to pass upon said application until Judge Evans, a newly-elected judge, took the bench on said November 29th. Barnes v. McMullins, 78 Mo. 265; Heald v Hendy, 65 Cal. 321; Brady v. The Times-Mirror Co., 106 Cal. 56; Remington Sewing Machine Co. v Cole, 79 Cal. 318; Ah Fong v. Stearns, 79 Cal 30; Hennessey v. Nichols, 105 Cal. 138; Powell v. Sutro, 80 Cal. 559; State v. Shipman, 93 Mo. 157; State v. Blitz, 171 Mo. 539; Raming v. Railroad, 157 Mo. 477; Railroad v. Holliday, 131 Mo. 453; State to use v. Matlock, 82 Mo. 455; Bruce Lumber Co. v. Hoose, 67 Mo.App. 264. Judge Evans, of Division 5 of said court, erred in not sustaining the supplemental application for a change of venue filed in his court January 12, 1903, after the cause had been docketed in his division of said court. The refusal to remand said cause to Division 1 was reversibly erroneous. Penfield v. Vaughn, 169 Mo. 371; State ex rel. v. Perkins, 139 Mo. 106. (2) (a) The conclusions of law drawn by the court are not only in conflict with the authorities cited under other points in this brief, but absolutely ignore the rulings of this court in the Linvill-Greer case, where every salient and dispositive fact herein involved was determined by this court. Linvill v. Greer, 165 Mo. 380. (b) This is an action under section 650, Revised Statutes 1899. It was tried by both sides as an action at law, both sides asking declarations of law. The court was required to pass upon every phase of the issues in order to determine and to define the title of the parties. (3) The court erred in decreeing a cancellation of the power of attorney. (4) The court erred in excluding competent evidence offered by appellants. The declarations of members of the Jones family concerning ages and seniority of the Jones children were admissible upon proof (a) of the fact that the declarant was a member of the Jones family by blood or marriage, and (b) that such declarant was dead. They were not declarations ante litem motam. There was no controversy. 1 Wharton, Ev., secs. 202, 204, 213, 193 to 213; Chamberlain's Best on Ev., pp. 476, 477; 1 Greenleaf, Ev., secs. 103, 134, 104, 131; 1 Taylor on Ev., secs. 571, 23a, 630n1; 1 Phil. Ev., 203-215; 2 Taylor on Ev., sec. 631; Monkton v. Atty.-Gen., 3 Russ. & M. 161. "So the date of a person's birth may be testified to by himself or by members of his family, although they know the facts only by hearsay based upon popular tradition. . . . The time of a birth may be shown by the declaration of a deceased member of the family, though there is a family register of births which is not produced; the grade is the same." 2 Taylor, Ev., sec. 427; Holton v. Manteufel, 51 Minn. 185; Clements v. Hunt, 1 Jones L. 400; Swink v. French, 11 Lea (Tenn.) 78; Watson v. Brewster, 1 Pa. St. 381; Byers v. Wallace, 87 Tex. 503; 1 Whart., Ev., sec. 212; State v. Cougat, 121 Mo. 463; State v. Marshall, 137 Mo. 469. (5) The court erred in admitting incompetent evidence. (a) The census reports were inadmissible (a) because there was no evidence showing who made the entries upon the census books whereof an alleged copy was produced; nor (b) who made the original statement or report which it is alleged were transcribed upon the census books; nor (c) that any enumerator got any information of any sort from any member of the Jones or Priddy or Linvill families; nor (d) from what source such enumerator obtained any data concerning the ages or seniority of any person. The census was taken primarily to enumerate the people, and is admissible as being the best available evidence concerning the population of a given city or State, but is not evidence of the age, or place of birth of an individual. Hegler v. Faulkner, 153 U.S. 109; Ins. Co. v. Schwenk, 94 U.S. 597; Holton v. Manteufel, 51 Minn. 187; Ins. Co. v. Tisdale, 91 U.S. 245; Evanston v. Gunn, 99 U.S. 666; Dinan v. Smith, 38 How. Pr. 466; Davis v. Clements, 2 N.H. 390; Boundred v. Del Hays, 20 N. J. L. 328; Enfeld v. Ellington, 67 Conn. 459; Cushing v. Railroad, 143 Mass. 77; Ins. Co. v. Rosengale, 77 Pa. St. 515; Connor v. Ins. Co., 78 Mo.App. 131; Childress v. Cutler, 16 Mo.App. 44; Buffalo v. Knights, etc., 126 N.Y. 450; 3 Taylor, Ev., secs. 1660, 1665, 1667; 1 Greenl. Ev., 407, 408. (b) The certificates signed by the director of the census were particularly objectionable, because they were summaries made or conclusions drawn by him from alleged records. "He is not competent to summarize the effect of the record and state, as the result of his examination, that a certain fact exists or is shown by his records." McGuire v. Sayward, 22 Me. 230; Tissman v. Friends, 103 Mich. 185; School v. Tuttle, 26 N.H. 470. (c) Only such parts of a public register are admissible, in any event, as record such facts as occurred in the presence of or were known to exist by the recording officer. Thus, a register of baptisms may be competent to establish the fact of baptism, but not the date of birth or age of the child, nor whether it be the child of A or B. 1 Greenl. Ev., secs. 493, 483, 162n; 2 Phil. Ev., 108; Wiggins Ferry Case, 47 Mo. 524; Rex v. North Petherton, 5 Barn. & Cres. 508; Clark v. Trinity Church, 5 Watts & S. 266; Burghart v. Angerstein, 6 C. & P. 600; Rex v. Chapham, 4 C. & P. 29; Huet v. Le Mesurier, 1 Cox Eq. 275; Childers v. Cutler, 16 Mo. 24; In re Wintle, L. R. 9 Eq. 373; Filler v. Shotwell, 7 W. & S. 14; Brady v. Hicks, 1 Pike 232; Hale v. Palmer, 5 Mo. 403; Durfee v. Abbott, 61 Mich. 471; Wilcher v. McLaughlin, 115 Mass. 167; Weaver v. Leiman, 52 Md. 708; Sitler v. Gehr, 105 Pa. St. 577; Kennedy v. Doyle, 10 Allen 167; Townsend v. Pappnell, 99 Mass. 40; Butler v. St. Louis Ins. Co., 45 Iowa 93. The following were census cases: Hegler v. Faulkner, 153 U.S. 109; Baltells v. Tallman, 96 Ala. 405; In re Wintle, L. R. 9 Eq. 373. Especial attention is invited to: Weaver v. Leiman, 52 Md. 708; Sitler v. Gehr, 105 Pa. St. 577; Kennedy v. Doyle, 10 Allen 167. The Federal statutes under which the census was taken provided that the original blanks used by the enumerators should be filed, etc. These original reports were the best evidence of their contents, and not the alleged epitomes made in Washington from them. No excuse was made for the non-production of these originals. (d) The court erred in admitting statements and declarations made by persons not members of the family in question tending to show what the reputation in the community was concerning the age or seniority of the Jones children. Such reputation is only admissible (a) when testified to by members of the family, and (b) it must be confined to family reputation or tradition. Dupoister v. Gagany, 84 Ky. 43; Morgan v. Purnell, 4 Hawkes (N. C.) 95; Barnum v. Barnum, 42 Md. 304; Doe v. Auldjo, 5 Q. B. U. C. 171; Trust Co. v. Rosenagle, 77 Pa. St. 516; Wallace v. Howard, 30 S.W. 711; Henderson v. Cargill, 31 Miss. 419; Northrop v. Hale, 76 Me. 306; DeHaven v. DeHaven, 77 Ind. 236; Branch v. Lumber Co., 56 F. 707; 1 Whart. on Ev., sec. 212. (e) Estimates by persons not members of the family concerning age or seniority may sometimes be admitted to show that a person was eight or ten years older than he claimed to be, but not to show a difference of one or two years. Elsner v. Sup. Lodge, 98 Mo. 645. (f) The casts and photographs of the Priddy monument were inadmissible, (a) because it was not shown that the age inscription thereon was treated as authoritative by the family, and (b) because it was not shown that the persons who erected it were dead or inaccessible. 1 Whart. Ev., secs. 219, 220; Haslam v. Crow, 19 W. R. 969; Leggett v. Boyd, 3 Wend. 379; Clement v. Hunch, 1 Jones, L. 400; Divan v. Ben. Assn., 201 Pa. St. 363. (6) Effect of the deed of May 4, 1853, signed by Priddy and wife to Elizabeth Jones. (a) The deed of Priddy and wife and Elizabeth Jones, dated May 4, 1853, conveyed Priddy's curtesy in the lands of his wife, if it was not conveyed by the former deed dated October 9, 1852. Miller v. Quick, 158 Mo. 503; Beal v. Hosman, 38 Mo. 435; R. S. 1865, p. 464, sec. 14; Hord v. Taubman, 79 Mo. 101; Missouri cases cited under point 6b. (b) The record shows that Elizabeth Jones was seventeen years old at the date of this deed. In July, 1855, she intermarried with William Linvill. The widow Jones' life life estate terminated upon her death in 1869. Defendant, and those under whom he claims, did not and do not claim to have gone into possession of the dower lands or to have acquired any right or title thereto until the termination of Mrs. Jones' life estate in 1869. Hence, at the time they begun to assert their alleged right and title (1869), and to have gone into possession (1869), both were married women. As their husbands did not make entry upon the dower lands, or otherwise effectually interrupt the possession of defendant's grantors, they (the husbands) became divested of their estates by adverse possession. Such...