Bradley v. West , 68 Mo. 69 ( 1878 )

Hough, J.

— This was an action of ejectment instituted March 1st, 1872, to recover the possession of a part of the southeast quarter of section 15, township 55, range 23, the same being military bounty land in the county of Carroll. The cause was tried at the December term, 1875. The defendant relied upon adverse possession under color of title for the period of two years, under the special limitation law applicable to such lands. The plaintiff had judgment and the defendant has appealed.

1. former reoova tract, as evito the whole,

It appears from the record that the plaintiff and the defendant each had actual possession in April, 1869, of a part of the tract in controversy; the plaintiff of a strip on the west side of said tract containing about eight acres, and the defendant of a strip on the east side thereof containing about twelve acres. The intervening portion of the tract remained unoccupied until the summer of 1871, when the defendant took actual possession of a part and subsequently of the whole thereof. On the 22d day of June, 1871, plaintiff brought an action of forcible' entry and detainer against the defendant for the twelve acres occupied by him, and recovered judgment therefor, which judgment was affirmed by this court at its May term, 1875. 60 Mo. 59. A writ of restitution was issued on this judgment and the plaintiff was restored to the possession of said twelve acres on the 11th day of November, 1875. The only possession claimed by the defendant of the land lying between the eight acres on the west and the twelve acres on the east, prior to the summer of 1871, was a constructive possession thereof by reason of his alleged occupation of the twelve acres under color of title before the plaintiff, or any one for him, entered upon the western border of the tract. But the verdict of the jury in the forcible entry and detainer case is conclusive of the fact that the plaintiff entered upon the western border of the tract before defendant entered upon the eastern border, and that the latter’s entry was a forcible intrusion upon the plaintiff’s possession, and when restitution was made under the judgment in that case the statu quo was restored, and the defendant’s possession of the twelve acres, became, from the beginning, the possession of the plaintiff and all constructive possession arising out of the actual possession, under color of title, was thereby extinguished. Ferguson v. Bartholomew, 67 Mo. 212. The only adverse possession, therefore, which the defendant could rely upon, was the possession taken by him iu the summer of 1871, and that was less than two years before the institution of the present suit.

2. witness, other party dead.

As to the deed from Horton to the plaintiff, we are of opinion that the plaintiff was a competent witness to prove the grantor’s name was in the body of the an(j in certificate of acknowledgment at the time such certificate was given by the justice, though Horton, the grantor, was dead. The deed from Horton to plaintiff was not the contract or cause of action in issue and on trial. The cause of action in issue and on trial was the alleged unlawful withholding, by the defendant, of the possession of certain lands from the plaintiff, and both of the parties to this controversy are living. The case does not come, therefore, within the letter of the statute; nor does it come Within the reason of the statute, as the representatives of Horton are not parties to this suit and cannot be affected by the result thereof. The validity of the deed from Horton to the plaintiff arises incidentally, and is not directly and necessarily involved in the issues to be tried. “ By the words ‘ contract or cause of action in issue and on trial/ as used in the statute, the Legislature evidently intended such contract or cause of action as was to be enforced by the proceeding ; that in regard to which an issue was to be formed and a trial had, where the rights of the parties to the contract or cause of action would be determined by the 'result.” Manufacturers’ Bank v. Schofield, 39 Vt. 590, 594. In Downs v. Belden, 46 Vt. 674, it was held that where A sued B in trover for the conversion of property which A bought of C, who was dead, A was a competent witness in his own behalf as to his contract of purchase with C. In Granger v. Bassett, 98 Mass. 462, speaking of the cases in which a pai’ty may be a witness under a statute like ours, the court said: “ His competency must be determined in advance by the nature of the controversy and the question in issue. If, upon that test, he is admitted as a witness in the case, his testimony is competent for all purposes, although it may relate to transactions with a person since deceased, which prove to be involved in or to affect the matter in dispute.” The case of Looker v. Davis, 47 Mo. 141, is to the same effect. We think the rule enunciated in these cases the correct one. It follows that the plaintiff' was a competent witness. In Poe v. Domic et al., 54 Mo. 119, and Johnson v. Quarles et al. 46 Mo. 423, the transactions in reference to which testimony was excluded on the ground that one of the parties thereto was dead, were brought directly in issue by the pleadings. In Angell v. Hester, 64 Mo. 142, a promissory note made by the defendant, was the contract in issue and on trial, and the defendant was offered, as a witness, to vary his liability thereunder, by .reason of a transaction had with the other party to said contract, who was dead. We held that he was properly excluded. We see no error in the record, and the judgment will be affirmed.

All concur.

Arrirmed.