Smith v. Phelps

• Decision Date: 31 October 1876
• Citation: 63 Mo. 585
• Parties: J. FRANCIS SMITH, Respondent, v. ORA R. PHELPS, et al., Appellants.
• Court: Missouri Supreme Court

63 Mo. 585

J. FRANCIS SMITH, Respondent,

v.ORA R. PHELPS, et al., Appellants.

Supreme Court of Missouri.

October Term, 1876.

Appeal from Buchanan Circuit Court.

L. E. Carter & E. O. Hill, for Appellants, cited: Hines vs. Ament, 43 Mo. 298; Lowenberg vs. Bernd, 47 Mo. 297 and cas. cit.; Dietrich vs. Murdock, 42 Mo. 279, 284, 285; Koenig vs. Mueller, 39 Mo. 165.

Ben. Loan, for Respondent.NAPTON, Judge, delivered the opinion of the court.

This was an action of ejectment. The title of the defendant Allen in this case, is the same on which the plaintiffs recovered in the case of Allen vs. Sales and others, reported in 56 Mo. 30. It appears now, that long anterior to the beginning of this litigation between Frederick W. Smith and Allen, reported as above, a suit had been instituted by one Kiley against Frederick W. Smith, the father of the present plaintiff and original owner of the lot in controversy. This action of Kiley commenced in 1867, and was based upon a lien claimed to have been derived from macadamizing the street in front of the lot, under the charter and ordinance of the city of St. Joseph. From some cause no determination of this suit was reached until September, 1873, when by confession of Frederick W. Smith, a judgment was rendered, and the plaintiff in the present suit became the purchaser at the sale of said lot on an execution issued on said judgment. The title of defendant Allen is stated at large in the report of the case in 56 Mo. 30, and it is unnecessary to repeat the details here. It was based on a mechanic's lien, originating in 1871, against one Cowan, who, at that time, was a lessee of the lot for ten years.

In the answer and upon the trial, it was claimed by defendant, that the plaintiff had been, long prior to the judgment under which he purchased in 1873, the general agent of his father, in regard to his St. Joseph property, and was such agent at the date of his purchase under the Kiley judgment, and that this purchase was made with his father's money and for his benefit, and the title was placed in the plaintiff with a view to get rid of the lease to Allen.

That the plaintiff had been and was at the date of this purchase such agent is admitted, but there was no testimony offered to show that the purchase money was advanced by the father, or that the title thus acquired by the son, was obtained with any fraudulent purpose.

Upon the trial an application for a continuance was made, based on the absence of two witnesses, but one of the witnesses was ultimately procured by attachment, and the diligence requisite in such applications would hardly justify a reversal on account of the absence of the other.

Upon the trial, all evidence to show the difference between the value of the lot unimproved, and its value after the erection of a hotel on it by the defendant Allen, was excluded.

The judgment of the court was,...