Stewart ex rel. Grantham v. Thomas

• Decision Date: 31 October 1864
• Citation: 35 Mo. 202
• Parties: ELIAS C. STEWART TO THE USE OF CHARLES W. GRANTHAM, Appellant, v. DAVID THOMAS, Adm'r, &c., Respondents.
• Court: Missouri Supreme Court

35 Mo. 202

ELIAS C. STEWART TO THE USE OF CHARLES W. GRANTHAM, Appellant,

v.DAVID THOMAS, Adm'r, &c., Respondents.

Supreme Court of Missouri.

October Term, 1864.

Appeal from St. Charles Circuit Court.

E. A. Lewis and W. A. Alexander, for appellants.

I. The deed of trust of May, 1857, ought not to have been admitted in evidence. Its execution was six months prior to the first transaction between the two Granthams, and it had no connection with any matter whatever involved in this controversy. Its presence was calculated to mislead the jury and make them couple it with matters to which it was essentially foreign, to the prejudice of the plaintiff's rights.

II. The statements of T. P. Grantham were only hearsay, and incompetent testimony for any purpose. No evidence appears in the whole case, even remotely connecting Charles W. Grantham with any supposed fraudulent intent on the part of his father. Nor was any proper foundation laid for the introduction of the statements of T. P. Grantham, by way of attack upon his credibility as a witness; for no question was asked him about those statements until after their admission in evidence; and even then, his answers were no such as could have authorized their introduction under any circumstances. The court erred, therefore, both in admiting the testimony and in refusing to give the 3d instruction asked for by plaintiff. (Howard v. Coshow, 35 Mo. 118; Reed v. Pelletier, 28 Mo. 173, 177; Whitney v. Ferris, 10 Johns. 66; Buckman v. Barnum, 15 Conn. 68; Commonwealth v. Eberle, 3 Serg. & R. 9, 16, 19; Patton v. Freeman, Coxe, 113, 115; Reichart v. Castator, 5 Bin. 109, 113.)

III. The first instruction given for defendants is erroneous. 1. It confounds possession of “the farm upon which the wheat grew,” with possession of the wheat itself, between which there is a very material distinction. 2. It presents hypotheses of fact, touching which not a particle of evidence was offered; there was no evidence even tending to show that T. P. Grantham kept possession of the wheat fan, nor any that he “fed the hay to his stock” after the sale to Charles W. Grantham.

IV. The whole instruction raises false issues, and is inevitably adapted to the misleading of the jury. It proceeds upon the false notion, that because T. P. Grantham remained upon the farm where the property was which he sold to Charles, therefore Charles never acquired any possession at all of the property, although he also lived upon the same farm, and exercised all possible acts of ownership over the property in question. (R. C. 1855, p. 805, § 10.)

V. The 2d instruction given for defendants is erroneous. It instructs the jury to find generally for defendants, if the bill of sale of November, 1857, was void for fraud; thus ignoring and in effect denying all the right which the beneficial plaintiff may have had in the crop of tobacco raised by himself, and never included in that bill of sale.

VI. The 3d instruction for defendants is erroneous. 1. Like the 1st, it confuses the idea of exclusive possession and of a joint occupancy or residence upon the premises. 2. It is calculated to mislead the jury as to the effect of the acts of T. P. Grantham in paying hands, &c., touching whether they were done in his own name or merely as agent for Charles, as testified to by himself. 3. It, in effect, directs the jury to find the continued possession by T. P. Grantham, proven by facts which only tend to prove it, and keeps out of view all those qualifying circumstances with which the evidence abounds, and which should not be lost sight of in any instruction on that point. 4. Like the 2d instruction it erroneously tests the plaintiff's right to all the property by the validity of the bill of sale of only a part. 5. It requires the plaintiff absolutely to show that the sale of November, 1857, was not made with any fraudulent intent, and denies him those legal rights which would equally flow from his ignorance of the fraudulent intent, if such existed. (Little v. Eddy, 14 Mo. 160.)

Dyer, King and Krekel, for respondent.

DRYDEN, Judge, delivered the opinion of the court.

The defendant Thomas, having an execution against one Taliaferro P. Grantham, caused Stewart, the sheriff of St. Charles county, to levy the same on a lot of wheat containing about seven hundred bushels, three stacks of timothy hay, and a quantity of tobacco, as the property of said Taliaferro P. The property having been claimed by Charles W. Grantham the relator, a sheriff's jury was called to try the question of ownership, who found for the claimant. Thomas, the creditor, thereupon indemnified the sheriff, who proceeded and sold under the execution. The present suit was brought on the bond of indemnity against Thomas and his securities. The only issue made by the pleadings is as to Charles W. Grantham's ownership of the property seized and sold by the sheriff. The case was tried by a jury, resulting in a verdict and judgment for the defendants below, from which the plaintiff has appealed to this court.

The evidence showed that the crop of wheat, of which the wheat in dispute was the fruit, was sown by Taliaferro P. Grantham for himself, in the autumn of 1857, on a tract of land on which he and his family resided, the title to which was in his wife. The plaintiff read a document executed by Taliaferro P. Grantham, dated the 14th day of November, 1857, purporting to convey to Charles W. the said crop of wheat then growing, together with said Taliaferro's portion of a crop of corn, a stack of hay, and a wheat fan of said Taliaferro P., for the expressed consideration of two hundred and fifty dollars, recited therein to have been paid; and also gave evidence, aside from the recital, tending to prove payment of said purchase price.

It further appeared that the hay and tobacco in controversy, as well as the wheat, were grown on the farm above mentioned, and were the products of the year 1858; and that during that year Taliaferro P. and his family still continued to reside on the farm; Charles W., who was a son of Taliaferro P., residing with them as a member of the family. The evidence further tended to show that Charles W. cultivated the farm during the year 1858, for himself and at his own expense, using however for that purpose, as occasion required, the animals and implements of Taliaferro P., and harvested and claimed the crops grown as his own. There was...