Stone v. Fry

• Decision Date: 22 June 1915
• Docket Number: No. 14057.,14057.
• Citation: 178 S.W. 289,191 Mo. App. 607
• Parties: STONE v. FRY et al.
• Court: Missouri Court of Appeals

178 S.W. 289

191 Mo. App. 607

STONE v. FRY et al.

No. 14057.

St. Louis Court of Appeals. Missouri.

June 22, 1915.

Appeal from St. Louis Circuit Court; Wm. T. Jones, Judge.

"Not to be officially published."

Action by Benjamin L. Stone against James F. Fry and others, administrators of A. P. Brown, deceased. Judgment for plaintiff, and defendants appeal. Reversed and remanded.

Fauntleroy, Cullen & Hay, of St. Louis, for appellants. George W. Lubke and George W. Lubke, Jr., both of St. Louis, for respondent.

REYNOLDS, P. J.

Action for breach of covenant in a general warranty deed, conveying certain lots in the city of St. Louis, the grantors being A. F. Brown and Mary F. Brown, his wife, the grantee one `Sam Rosenberg. The deed is a statutory general warranty deed, excepting however from the covenants, "the taxes for 1908 and thereafter." The breach assigned is failure to pay the taxes for 1907. Contemporaneously with the execution of this deed from Brown and wife to Rosenberg, Rosenberg executed a deed of trust on the same premises to a trustee for A. F. Brown, to secure a principal note due 10 years after date and 20 semiannual interest notes, both deeds being dated August 30th, 1907, and filed for record September 10th, 1907. The deed of trust recites that Rosenberg, in consideration of the debt and trust in the deed mentioned and created and the sum of $1 to him paid by the trustee, the receipt of which is acknowledged, "does by these presents grant, bargain and sell, convey and confirm unto the said party of the second part" (the trustee), the property described in the deed, and it is further recited that the grantor Rosenberg "has executed this deed of trust and has also agreed with said third party (Brown), his indorsers and assigns, to cause all taxes and assessments, general and special, to be paid whenever imposed upon said property and within the time required by law."

The petition avers that plaintiff is the owner of the premises by mesne conveyance from Rosenberg and that on September 29th, 1911, he (plaintiff) paid and discharged the lien of the general taxes far state, school and city purposes, in the amount of $156.19, and the further sum of $3.06 for sprinkling taxes specially assessed against the real estate in favor of the city of St. Louis, thereby paying the sum of $159.25, which taxes, it is averred, were a lien upon the property conveyed. Averring a demand by plaintiff on defendants, who are the administrators of the grantor Brown, and that the demand had been refused, plaintiff avers damages in the amount above stated.

The answer, after a general denial, sets up:

1st. That at time of sale of the land and as part of the consideration it was agreed that Rosenberg should and would pay these taxes and that for that purpose he retained the amount out of the purchase money, and all this with the knowledge and under direction of the plaintiff, for whom Rosenberg had purchased the land and for whom he held it in trust.

2d. That long after the purchase of the land and execution and delivery of the deed to it, and while Rosenberg held title to it, the full amount of these taxes was paid by Brown to Rosenberg, who then and thereby became a trustee for the plaintiff.

3d. The execution of the deed of trust above set out is averred, its covenant to pay taxes, etc., set up, and it is pleaded that Rosenberg and plaintiff, as holding through him, are estopped from claiming any right by virtue of the covenants in the deed from Brown to Rosenberg.

4th. A denial that plaintiff ever acquired any title to the property or that he is successor in the title of Rosenberg and a denial that the taxes mentioned were ever assessed or levied on the land.

Trial was before the court, a jury being waived, and resulted in a verdict for plaintiff, judgment following from which defendants, administrators of Brown, have duly perfected their appeal to this court.

Learned counsel for appellants make four points upon which they rely for a reversal of the judgment in this case.

It is contended under the first point that one George Stone was an incompetent witness as to transactions or conversations between him and Brown, the latter dead at the time of the trial. These counsel contend that this being an action directly against the administrators of an estate, and this witness being a contracting party with the decedent, and the real party in interest, as well as a party to the contract, was incompetent, the other party to the contract being dead, and that, it is claimed, is true whether the witness was a party to the suit or not.

It is provided by section 6354 that "where an executor or administrator is a party, the other party shall not be admitted to testify in his own favor, unless the contract in issue was originally made with a person who is living and competent to testify, except as to such acts and contracts as have been done or made since the probate of the will or the appointment of the administrator." This was section 4652 of the Revised Statutes of 1899, and under that designation is construed by our Supreme Court in Weiermueller v. Scullin, 203 Mo. 466, 101 S. W. 1088. We refer to that opinion as settling the question of the incompetency of a witness in such case. In Carroll v. United Railways Co., 157 Mo. App. 247, 137 S. W. 303, we had occasion to consider this same question and there held that the exclusion extended to not only the party to the record but to the contract., and so our Supreme Court held in Lieber v, Lieber, 239 Mo. 1, 143 S. W. 458.

An examination of the record in this case, however, makes it impossible to determine whether the trial court considered the testimony of this witness as to transactions and conversations had between him and the decedent. Objection was made to the reception of the testimony, and the court, without then ruling on the objection, received the testimony subject to the objection, to which action of the court, in refusing to pass on the objection at the time, defendants duly excepted. Beyond doubt this witness should not have been permitted to testify as to any transactions between himself and the decedent, as it clearly appears that while he was not a party to this action, he was a party, and the real party in interest, to the contract. The court should have ruled on the objection and excluded the testimony. It was reversible error to refuse to rule on the objection at the time, or afterwards. Asbury v. Hicklin, 181 Mo. 658, loc. cit. 670, 81 S. W. 390; Seafield v. Bohne, 169 Mo. 537, loc. cit. 546, 69 S. W. 1051; German-American Bank v. Manning, 133 Mo. App. 294, loc. cit. 298, 113 S. W. 251; Smoot v. Bankers' Life Ass'n, 138 Mo. App. 438, loc. cit. 469, 120 S. W. 719. Here, to repeat, over the objection and exception of defendants the court neither ruled on the objection at the time it was made nor does it afterwards appear what its action was on the objection to this testimony.

The second point made by learned counsel for appellants is, that it appears that the deed of trust was made by Rosenberg back to Brown, or Brown's trustee, to be more accurate, at the same time that the warranty deed was made and that the covenants in the deed of trust modified...