Towle v. Sherer

CANTY, J. This is an action to establish a lost deed. On the trial the court found for plaintiffs, and from an order denying a new trial defendants appeal. 1. In and prior to 1891, James Tracy was in possession of the quarter section of land in question under what would seem to be a defective title, and on March 24 of that year made a deed of the land to the defendant George J. Sherer. On April 3 of that year one Barnett, who held the outstanding title, if any existed, made a deed conveying his interest in the land to Sherer. Notwithstanding these conveyances Sherer never took possession of the land, but Tracy and his wife continued to reside on it until the time of Tracy’s death on April 29, 1896, and during all this time he cleared, cultivated and improved the land, and paid the taxes on it. In 1895 he built a new house on the land at a cost to him of $3,250, of which Sherer paid $346.23, and rendered a bill to Tracy for the same for which Tracy gave his note to Sherer. Tracy also insured the house in his own name. Plaintiffs claim that the first-named deed was without consideration and that Tracy paid the consideration for the conveyance from [317] Barnett to Sherer; that Sherer held the title on a parol trust and an oral agreement to convey it back to Tracy; that, in pursuance of such agreement, Sherer and his wife did, in 1892, convey it back to Tracy; that the latter did not record his deed, but kept it in his old dwelling house on the land, and the deed was burned with the house in 1894; that in February, 1896, Sherer and wife made and delivered to Tracy a second deed to replace the one that was burned; that this second deed was not recorded, but was kept in Tracy’s possession in his house until March, 1896, about a month before he died, when Sherer wrongfully got possession of it and carried it away. This action was commenced shortly after by Tracy and wife. Tracy died before the trial, and his administrator, Towle, was substituted in his place. We shall not attempt to recite much of the evidence, which covers 900 printed pages, but we are of the opinion that it fully sustains the above claims of plaintiffs. Sherer’s wife and Tracy were brother and sister, and Sherer and Tracy were always on very intimate terms until the time at which it is claimed that the second deed was carried off by Sherer. On January 25, 1896, Sherer wrote Tracy as follows: “I have the deed made out, but Mamie has not been down town yet to sign it. I expect her down to-day. What shall I make the consideration in the deed? If you let me know, I will put in just whatever amount you say.” On February 16,1896, Sherer wrote Tracy: “I sent deed a few days ago. Hope it is satisfactory.” Sherer admits that he wrote these letters and also that he wrote a letter between these dates, inclosing a deed to Tracy. But he claims that it was a “bogus deed,” containing an impossible description, and was made at the request of Tracy, to satisfy Tracy’s wife, who was making trouble for him because he did not buy back the land. On the evidence the court was amply justified in refusing to believe the story of Sherer’s witnesses as to the deed being of this character and in believing that it contained a description of this quarter section, as testified to by plaintiffs’ witnesses. Again, the [318] register of deeds, and another witness who ran an abstract business, testified that shortly before the time at which it is claimed that the second deed was taken from Tracy’s house Sherer came to the register’s office, and inquired of the two witnesses if there was a deed of this farm on record from Sherer to Tracy. The evidence to establish the former existence of a lost deed must be strong and satisfactory, and the evidence to support the court’s findings in this case is of that character. This is not, as appellants contend, an action to enforce the alleged parol trust or oral agreement to reconvey, and the only purpose of the evidence tending to prove such trust and agreement is to add to the probability that such a reconveyance was in fact made. Again, if the land was reconveyed to Tracy the title vested in him, and the loss, destruction or theft of the deed would not devest that title; and it is immaterial whether, as appellants claim, the parol trust which is the consideration for the reconveyance was illegal. If the title in fact vested in Tracy, that is sufficient to support the action to establish the lost deed; at least unless the conveyance was voidable even if the deed had not been lost'or stolen. Surely Sherer can obtain no advantage from his own wrong in taking and carrying off this deed. This disposes of the first five assignments of error. 2. The court refused to permit the defendant Mamie J. Sherer, the wife of defendant George J. Sherer, to testify as to conversations and admissions of Tracy in his lifetime, and this is assigned as error. In our opinion, the witness was incompetent. The statute makes a distinction between a witness who is a party to the action and one who is not, but is interested in the event thereof. Section 5660, G. S. 1894, is as follows: “It shall not be competent for any party to an action, or interested in the event thereof, to give evidence therein of or concerning any conversation with, or admission of, a deceased or insane party or person, relative to any matter at issue between the parties.” It was held by this court in Perine v. Grand Lodge, 48 Minn. 82, 50 N. W. 1022, and again in Madson v. Madson, 69 Minn. 37, 71 N. W. 824, that, in order to disqualify a witness who is not a party to the action, his interest must be legal and certain, not remote and [319] contingent. But the statute on its face makes a party to the action incompetent whether he is interested or not. At common law a party to the record was not a competent witness. 1 Greenl. Ev. § 329. But, if a defendant had no interest in the event of the suit or was improperly made a party, the plaintiff could not, by thus making him a party, deprive the other defendants of the benefit of his evidence. Id. § 358. See sections 355-357. If Mrs. Sherer had interest enough to be a proper party to this action she had interest enough to render incompetent her testimony as to conversations with a deceased person. True, her only interest in the real estate in question is that of the inchoate statutory dower which she would have if the defendants succeeded in defeating the establishment of the alleged lost deed or deeds. But, while this interest is contingent and uncertain, it is sufficient.to constitute her a proper party to the action and, being such a party, she was not competent to testify as to such conversations. 3. There is nothing in defendants’ claim that the court erred in admitting secondary evidence as to the contents of the second deed. There is evidence in the case tending to prove that Sherer wrongfully took the deed, and when called for cross-examination he denied that he ever took it, or that it ever existed. 4. Mrs. Tracy was a witness for plaintiffs and was asked if she had requested Sherer to return this deed. She answered: “No, sir, I did not, but I have written him.” Defendant’s counsel: “I move to strike out that part of the answer.” The motion was denied, and this is assigned as error. We are of the opinion that the court did not err, if for no other reason, because it was not stated what part of the answer was intended to be assailed by the motion, and no ground for the motion was stated. 5. On cross-examination, Sherer was asked if he-had not at a certain time sent a telegram to Tracy, containing certain statements. The overruling of the objection made on the ground that it is secondary evidence was error without prejudice, because the witness denied that he ever sent such a telegram. 6. It was competent to prove the admission of defendant Mamie J. Sherer. True, her admissions were not evidence against her husband, but they were against her and therefore admissible. The [320] evidence in question was also competent to impeach the credibility of Mrs. Sherer as a witness. 7. It was not error to refuse to allow Mrs. Tracy’s evidence to be impeached on an immaterial point. 8. One John Tracy, a witness for defendant, testified that he read what plaintiffs claim was the second deed; that it was simply a bogus deed, such as defendant claimed it to be, and he so told Mrs. Tracy. This was in the house of James Tracy, just before his death, and the witness further testified that Mrs. Tracy went immediately into the other room and abused him on his death bed. Mrs. Tracy, being called in rebuttal, was asked what John Tracy said on this occasion. In answer, she testified to what her husband said to-John Tracy about this deed. Counsel for defendants moved to strike out the answer “as incompetent, irrelevant, and immaterial, and conversations and admissions in the parties’ own favor.” The court denied the motion, and this is assigned as error, because it was testimony as to conversations with a deceased person. This was not the ground of the motion, which was that the evidence (not the witness) was “incompetent,” and was an admission “in the parties’ own favor.” The assignment of error is not well taken. 9. The eleventh assignment of error relates to the refusal of the court to permit the witness Cotton to explain again what he had already explained, — that he knew that the $500 which Sherer borrowed of the witness was to go to Tracy, because Sherer had told the witness that he (Sherer) was going to loan it to Tracy. 10. A carpenter, who testified for plaintiffs as to the cost or value of the new house, stated on cross-examination that he had no education, that his wife helped him to do the figuring, as she always did in his business, and that all he knew about the figuring was what she told him. Defendants then moved to strike out his testimony as to the value of the house. The motion was properly denied. For all that appears, he may have relied on these figures merely in corroboration of his independent judgment as to the value of the house. This is all of the 22 assignments of error that we deem worthy of any special notice. We have examined all of them, and find no error in any of the rulings referred to. The order denying a new trial is affirmed.