Wynn v. Cory

• Decision Date: 31 August 1871
• Citation: 48 Mo. 346
• Parties: SAMUEL L. WYNN AND WIFE, Respondents, v. ABRAHAM CORY, Appellant.
• Court: Missouri Supreme Court

48 Mo. 346

SAMUEL L. WYNN AND WIFE, Respondents,

v.ABRAHAM CORY, Appellant.

Supreme Court of Missouri.

August Term, 1871.

Appeal from Livingston County Circuit Court.

Mrs. Wynn, it appears, was half-sister of Alva Peery, son of Henry W. Peery, and, as plaintiffs claim, inherited from Alva, who acquired title under the will of his father.

For facts in the case see opinion of the court, and same case as reported in 43 Mo. 301.

McFerran, for appellant, among other points presented, contended that the court below erred in admitting the declarations of Archibald Peery, deceased; citing Stewart v. Thomas, 35 Mo. 202; Dickerson v. Chrisman, 28 Mo. 134; Turner v. Belden, 9 Mo. 797; Wilson, Adm'r of Owen, v. Woodruff, 5 Mo. 42, 43; Foster v. Nowlin, 4 Mo. 18; Criddle v. Criddle, 21 Mo. 522.

H. M. & A. H. Vories, for respondents.

I. The declarations of Archibald Perry after his deed to Henry W. Peery, and the declarations of his heirs claiming under him after his death and before their conveyance to defendant, who claims under them, coupled with evidence of defendant's knowledge of the claim and rights of the plaintiff Josephine at and before his purchase, were properly admitted in evidence. (Dickinson v. Chrisman, 28 Mo. 134; McLaughlin v. McLaughlin, 16 Mo. 250; Davis v. Spooner, 3 Pick. 284; Cow. & Hill's notes, 652; Bridges v. Eggleston, 14 Mass. 244; 1 Greenl. Ev. 189.)

II. In this case the statute of limitations was neither pleaded as a bar nor relied on in the answer. All statutes of limitations, to avail defendant, must be pleaded. If not pleaded, plaintiff has a right to presume that the statute is waived, and would come to trial unprepared to meet such a defense. (Heath v. Page, 48 Penn. St. 142; Hayden v. Stone, 1 Duvall, Ky., 396; Benoist v. Darby, 12 Mo. 196; Howell v. Howell, 15 Wis. 55.)

CURRIER, Judge, delivered the opinion of the court.

This is a suit in equity to restrain the defendant from disposing of the premises described in the petition, and to divest him of his apparent title, and to vest the same in the plaintiff, Josephine Wynn. The case was previously here, and is reported in 43 Mo. 301.

It is alleged in the present petition that Archibald Peery was the owner of said premises in March, 1852, and that he at that time conveyed the same to his son Henry W. Peery, by a deed duly executed and delivered, and that the deed so executed and delivered was subsequently lost or destroyed without having been recorded. The plaintiff's asserted rights depend upon the fact of the execution and delivery of this deed, and that fact is put in issue by the pleadings.

It is shown by the evidence that Archibald Peery, prior to the supposed execution of the deed, declared his purpose to convey said land to his said son, and that he subsequently stated that he had made the conveyance as he had proposed to do. It further appears that he was present when his son's will was executed, that the will was read over in his presence, and that it contained a bequest of the lands in question to the wife and daughter of the testator, and that he was inquired of after the son's death in regard to the deed, the administrator of the deceased being unable to find it, and that he again recognized the existence of the deed, stating that the last time he saw it, it was in his son Henry's possession, or in his drawer--or words to that effect. No question is made as to the weight or sufficiency of this evidence, if admissible, to prove the facts asserted. The evidence is assailed as wholly incompetent, and its admission was objected to on that ground.

Archibald Perry's statements and declarations are objected to as being mere hearsay testimony, and therefore inadmissible, as the defendant insists. These statements and declarations undoubtedly belong to the class of evidence usually denominated hearsay, but it does not thence follow that the court committed error in admitting them in evidence, for there are limitations and exceptions to the rule excluding such testimony. The declarations of persons since deceased, against their interests at the time the declarations were made, constitute one exception to the rule rejecting hearsay evidence. In order, however, to make such declarations admissible, it must appear that the declarant is deceased, that he possessed competent knowledge of the facts, or that it was his duty to know them; and that the declarations were at variance with his interest at the time they were made. “When these circumstances concur,” says Greenleaf, “the evidence is received, leaving its weight and value to be determined by other considerations.” (1 Greenl. Ev., 9th ed., § 147.) The same rule is laid down by Phillips in his work on evidence. (1 Phill. Ev., Cow. & Hill & Edw. notes, 5th Am. ed., 244, § 7.)

In Davis v. Spooner, 3 Pick. 284, both parties claimed...