Waddington v. Lane
| Citation | 100 S.W. 1139,202 Mo. 387 |
| Parties | BARTHOLOMEW WADDINGTON, Jr., v. JOHN LANE et al., Appellants |
| Decision Date | 19 March 1907 |
| Court | Missouri Supreme Court |
Appeal from Audrain Circuit Court. -- Hon. H. W. Johnson, Judge.
Affirmed.
Fry & Rodgers for appellants.
(1) All the evidence offered in the case is presented in appellants' abstract and this court will hear the case anew, and render such decree on the evidence and the equities arising therefrom as is proper and right. The verdict of the jury not being supported by the greater weight of fact, this court will reverse the judgment. Courtney v Blackwell, 150 Mo. 245; Lewis v. Rhodes, 150 Mo. 501; Bouton v. Bippin, 192 Mo. 474; Johnson v. Ewald, 82 Mo.App. 283; Keiser v. Gomman, 95 Mo. 217. (2) The court erred in submitting the case to a jury. It did not submit a single issue of fact but submitted the entire case to the jury. Only an issue of fact should be submitted to a jury and the court should hear and try the case. Leeper v. Lyons, 68 Mo. 216. The first second, fourth and fifth issues related to matters between respondent and Henry Waddington who was served by publication and made default. Morris v. Morris, 28 Mo. 117; Estes v. Fry, 94 Mo. 271; Reed v. Ball, 100 Mo. 62. The fact that the trial court submitted improper and confusing issues to the jury and admitted improper evidence shows the court was perplexed and confused as to the issues to be tried and was led by the findings of the jury on such issues to a wrong conclusion. (3) The court erred in admitting evidence of improvements made on the farm by respondent and the values of the same. The improvements made and the character of them and especially the value of the same could not possibly have been any notice to appellants of respondent's contract of purchase, especially as there was not an item of evidence that appellants had any notice of the contract or of the improvements being made on same or of plaintiff's possession. The action of the court in admitting such evidence under the pleadings shows the court was perplexed and confused as to the real issue and blindly followed the finding of the jury. (4) The court over appellants' objections permitted respondent to ask several witnesses, his neighbors, if it was not "common knowledge" in respondent's neighborhood on June 1 1903, that he had bought this land. The witnesses testified that they heard it said he had bought it. This was purely hearsay and was not proof of common knowledge. There is no evidence that this neighborhood talk ever came to appellants or that they were in a position to know of it, as they lived miles away from said neighborhood. "Knowledge" and "notice" are not synonymous terms and such knowledge would not have been notice. Clark v. Ingram, 33 S.E. 802. (5) The only evidence in this case of notice to appellants of respondent's claim to the land was the testimony of Mrs. Charles Hildebrand. She had no interest in the land and was in no way related to respondent. She was a stranger to the land, the title and to the appellants. 2 Pomeroy's Eq. Jur. (1 Ed.), secs. 597-602; Wade on Notice, sec. 29; Morrison v. Juden, 145 Mo. 299; Butterick v. Holden, 13 Metc. 355. (a) The burden is on the plaintiff to prove actual notice of the outstanding title. (b) Appellants are positive that the deed was delivered to them before they met Mrs. Hildebrand. They both testify that they had no information from any source that plaintiff had bought or had any interest in the land when they bought it from Henry Waddington and deny having any conversation with Mrs. Hildebrand about this land or about plaintiff. (c) Mrs. Hildebrand's testimony should be taken with great allowance. She was not certain as to material facts and could have been mistaken. She was personally acquainted with Adams and had no acquaintance with Lane, yet she claims that Lane did the talking and she is not certain that she recognized Adams. (6) The evidence of Bart Waddington, father of respondent, was not evidence of notice to appellants as to respondent's claim to the land. 1. There is no evidence as to when Arnold made such remark to Adams, if made. 2. If Arnold did make such remark to Adams it was a mere assertion with no reference to the purchase or any title, claim or contract, on part of respondent and was no evidence of actual notice. Morrison v. Juden, 145 Mo. 299; 2 Pom. Eq., 602. 3. Arnold testified he did not tell Bart Waddington that Arnold told him that he would have trouble. (7) The fact that plaintiff was in possession of the farm as Henry Waddington's tenant was no notice of his claim of title under unrecorded contract. Vaughn v. Tracy, 22 Mo. 415; Rogers v. Hussy, 36 Iowa 664; Whitman v. Taylor, 60 Mo. 127.
D. A. Murphy and O. Hitt for respondent.
(1) There was a valid contract between plaintiff and Henry Waddington for the purchase and sale of the land, which being the case, it was not necessary for the plaintiff to hold a deed from him in order to maintain this action. Sensenderfer v. Kemp, 83 Mo. 581; Swisher v Sensenderfer, 84 Mo. 104; Widdicombe v. Childers, 84 Mo. 382; Davis v. Briscoe, 81 Mo. 27; 2 Pom. Eq. Jur. (2 Ed.), p. 958, sec. 688. (2) There was no incompetent evidence admitted on behalf of plaintiff and no competent evidence, offered by defendants, rejected; but if there was, this being a suit in equity, this court would, in either case, reject the incompetent evidence and consider the competent evidence improperly excluded, and not reverse the case because of any error that may have been committed by the trial court in either regard. Trust Co. v. McDonald, 146 Mo. 479; State ex rel. v. Jarrott, 183 Mo. 204; Barrett v. Davis, 104 Mo. 549; Davis v. Kline, 96 Mo. 401; Hanna v. South St. Joseph Land Co., 126 Mo. 16; Goodrich v. Harrison, 130 Mo. 263; Kleimann v. Gieselmann, 114 Mo. 437. In an equity case, where all the evidence is before the court, it will review it on the legitimate evidence and give such judgment as the legitimate evidence warrants, regardless of errors committed by the trial court. Sheridan v. Nation, 159 Mo. 41. (3) Under section 722, Revised Statutes 1899, the trial court was authorized to submit all such issues to the jury as it thought necessary, whether one or several. Cockrell v. McIntyre, 161 Mo. 59; Hall v. Harris, 145 Mo. 614; Burt v. Rynex, 48 Mo. 309; Hickey v. Drake, 47 Mo. 569. (4) Defendants, before and at the time they paid Henry Waddington for the land, had actual notice of the prior purchase thereof by the plaintiff, and were in possession of such information as made them chargeable with actual notice. The evidence is amply sufficient to support the findings and judgment of the court below. Stuart v. Ramsey, 196 Mo. 404; Taffe v. Kelley, 110 Mo. 127; Meier v. Blume, 80 Mo. 179; Drey v. Doyle, 99 Mo. 459; Davis v. Briscoe, 81 Mo. 27; Martin v. Jones, 72 Mo. 23; Sensenderfer v. Kemp, 83 Mo. 581; Widdicombe v. Childers, 84 Mo. 382; Maupin v. Emmons, 47 Mo. 304; Major, Admr. v. Buckley, 51 Mo. 227; Griffin v. Railroad, 82 Mo.App. 93; Edwards v. Railroad, 82 Mo.App. 96; Arnholt v. Hartwig, 73 Mo. 485; Dougherty v. Cooper, 77 Mo. 528; Ins. Co. v. Smith, 117 Mo. 261. (5) From May 27, 1902, until June, 1903, plaintiff was in actual and open possession of the land, cultivating it and making various and substantial improvements thereon and living thereon with his family in a house right near the public road running north and south along the west side. Unquestionably he was in possession of this land from and after March 1, 1903, under his contract with Henry Waddington; and unquestionably Lane and Adams knew of this possession by him, before they bought and paid for the land. They knew more -- they knew, or at least were so told by Mrs. Hildebrand, that he was in possession of the land as its owner. Westminster College v. Peirsol, 161 Mo. 287; Haworth v. Taylor, 108 Ill. 275; Beck Lumber Co. v. Rupp, 188 Ill. 566; Franz v. Orton, 75 Ill. 100; Smith v. Jackson's Heirs, 76 Ill. 254; Bank v. Sperling, 113 Ill. 273; Gallagher v. Northup, 74 N.E. 713; Freeman v. Moffitt, 119 Mo. 280; St. Joseph v. Baker, 86 Mo.App. 310; Wiggenhorn v. Daniels, 149 Mo. 160; Masterson v. Railroad, 72 Mo. 342; 2 Pom. Eq. Jur. (2 Ed.), pp. 595 to 601; Raritan Water Power Co. v. Veghte, 21 N.J.Eq. 478; Hoy v. Bramhall, 19 N.J.Eq. 563; Randall v. Silverthorn, 4 Pa. St. 173; Paul v. Connersville, etc., 51 Ind. 530. (6) If Lane and Adams, at or prior to the time they actually paid for the land, had such information as to make them chargeable with knowledge of plaintiff's prior purchase thereof, the judgment of the trial court was for the right party. Edwards v. Railroad, 82 Mo.App. 100; Dougherty v. Cooper, 77 Mo. 528; Digley v. Jones, 67 Mo. 104; Dixon v. Hill, 5 Mich. 408; Paul v. Fulton, 25 Mo. 163; Wormley v. Wormley, 8 Wheat. 449. Lane and Adams are chargeable with notice they received prior to the time the Adams' check, or their check on the Savings Bank, whichever it was, was actually cashed and charged up to him or them and the money sent to Henry Waddington. Arnholt v. Hartwig, 73 Mo. 485; 2 Pom. Eq. Jur. (2 Ed.), secs. 750, 751, 753. (7) Neither Lane nor Adams pretended to claim that either of them ever made any inquiry of Henry Waddington, Bart Waddington, the plaintiff, or of Arnold at the First National Bank, as to whether Henry Waddington had sold the land, and they could easily have inquired of any or all of them. Under the facts in the case they should have at least inquired of Henry Waddington and the plaintiff as to whether plaintiff had purchased the land, and an examination of the records by Adams was insufficient. Griffin v. Railroad, 82 Mo.App. 93; Shotwell v. Harrison, 30 Mich. 179; Munroe v. Eastman, 31 Mich. 283; Wade on Notice, sec. 270; 2 Pom. Eq. Jur. (2 Ed.),...
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