Opinion
February 26, 1942.
1. EVIDENCE: Depositions: Admissions Against Interest: Misdescription of Land. Plaintiff's deposition in another case was admissible as an admission against interest even though the deposition misdescribed the land in controversy, as it appears from the inquiries made in the deposition that the plaintiff was being asked about the land involved in this action.
2. EVIDENCE: Witnesses: No Adverse Inference from Failure to Testify when Deposition Offered. Where the deposition of a party is offered in evidence, there is no adverse inference to be drawn from his failure to testify.
3. QUIETING TITLE: Plaintiff Must Prevail on Own Title. In statutory actions to quiet title to land, plaintiff must prevail solely upon the strength of his own title, and not upon the weakness of the title of his adversary.
4. QUIETING TITLE: Failure of Plaintiff's Title: Defendant's Title Immaterial. There being nothing in the record that would justify the overturning of the finding of the trial court that plaintiff had no title, the validity of the deed under which defendant claims is immaterial.
Appeal from Gentry Circuit Court. — Hon. Ellis Beavers, Judge.
AFFIRMED.
Leonard Johnson, W.L. Johnson, Thompson Griswold and Perry A. Brubaker for plaintiff in error.
(1) Where the plaintiff in ejectment suit claims under administrator's deed and sale he need only show in the first instance the deed, the order of sale and the order of the court approving the sale. Prive v. Springfield Real Estate Assn., 101 Mo. 107. (2) A collateral attack is an attempt to impeach the judgment by matters dehors the record. Karicofe v. Schwaner, 196 Mo. App. 565, 196 S.W. 46. (3) The probate courts of this State are the creatures of the organic law and their jurisdiction and rules of procedure are definitely defined and limited by the statutes of the State of Missouri. It is a well settled rule that the powers of such court are entirely derivative. They possess no inherent powers and exercise such only as conferred by legislation. They have no common law or chancery jurisdiction. Elliott Estate v. Wilson, 27 Mo. App. 218; Jefferson County v. Cowan, 54 Mo. 237; Burckhartt v. Helfrich, 77 Mo. 376. (4) All recitals in administrator's deed are prima facie correct and such deed cannot be collaterally attacked. Johnson v. Beasley, 65 Mo. 250; Bray v. Adams, 114 Mo. 486. (5) Order proving sale and deed is prima facie evidence of a legal sale. Johnson v. Beasley, 65 Mo. 250. (6) It being admitted that the Probate Court of Clinton County, Missouri, had jurisdiction to administer upon the estate of James W. Watson, deceased, and in the process of said administration had authority to make an order for the sale of real estate to pay debts of the estate of James W. Watson, deceased, its finding and making of an order to sell real estate to pay debts was a judicial act, and as such became a judgment, and as such was entitled to the same presumptions of verity as are accorded to the judgment of courts of general jurisdiction. Camden v. Plain, 91 Mo. 117; Robbins v. Boulware, 190 Mo. l.c. 43, 88 S.W. 674; Noland v. Barrett, 112 Mo. 181; Johnson v. Beazley, 65 Mo. 250; Scanland v. Walters, 265 S.W. 688. (7) The judgment of the probate court determining facts essential to its jurisdiction is conclusive as against a collateral attack. Trust Co. v. Moore, 263 S.W. 530; In re Judy, 166 Mo. 13; Camden v. Plain, 91 Mo. 117; In re Davidson, 100 Mo. App. 293; Yoeman v. Younger, 83 Mo. 424. (8) The judgments, orders and decrees of probate court having jurisdiction of the subject matter and between parties over which the court has jurisdiction cannot be collaterally questioned. Camden v. Plain, 91 Mo. 117; Sherwood v. Baker, 105 Mo. 472; Macy v. Stark, 116 Mo. 481; In re Davidson, 100 Mo. App. 263. (9) Where the right of the court to assume jurisdiction of a cause and proceeds to judgment depends upon the ascertainment of facts in pais, it is presumed in a collateral proceeding that the court, having retained jurisdiction, found such facts in favor of jurisdiction. A fortiori, if the court directly finds disputed facts which would be necessary to give jurisdiction to render judgment, the finding is conclusive in a collateral attack. Naeglin v. Edwards, 224 S.W. 764; Cobe v. Ricketts, 111 Mo. App. 105; Cox v. Boyce, 152 Mo. 576; Sullinger v. West, 211 S.W. l.c. 67; Thompson v. Pinell, 199 S.W. 1013; State v. Staten, 268 Mo. 288, 187 S.W. l.c. 44; Fitzgerald v. Road District, 195 S.W. l.c. 697. (10) Vacating a judgment collaterally can never be preferred or brought by a stranger under any circumstances. Harding v. Lee, 51 Mo. 241. (11) The filing of a petition in the probate court by an administrator for the sale of real estate to pay debts gives the court jurisdiction over the real estate. Smith v. Black, 231 Mo. 681, 132 S.W. 1129. (12) A judgment rendered by a court having jurisdiction of the parties and of the subject matter unless reversed or annulled in some proper proceeding is not open to contradiction or impeachment in respect to its verity, validity or binding effect by parties or privies in a collateral attack. 34 C.J., p. 511; Hess Warming Co. v. Elevator Co., 280 Mo. 162, 217 S.W. 493; Smith v. Black, 231 Mo. 681, 132 S.W. 1129; Jones v. Edeman, 223 Mo. 312, 122 S.W. 1047. (13) A collateral attack is an attempt to impeach a judgment by matters dehors of the record. 34 C.J., p. 520, sec. 827; Karicofe v. Schwaner, 196 Mo. App. 565, 196 S.W. 46. (14) Orders and decrees of a probate court in any case in which jurisdiction attaches are not open to contradiction or re-examination in a collateral proceeding. Veihmann v. Veihmann, 250 S.W. 565; McIntyre v. St. Louis, 286 Mo. 234, 227 S.W. 1047; Oldaker v. Spiking, 210 S.W. 59; Wright v. Hetherlin, 277 Mo. 99, 209 S.W. 871; Crum v. Hart, 286 Mo. App. 572, 156 S.W. 1089. (15) It has been held that a judgment may be impeached in a collateral attack on the grounds of fraud in its procurement by a stranger to it. However, that is an exception to the general rule that a judgment regular on its face cannot be attacked collaterally and applies to cases where the stranger attacking the judgment is prejudiced by it in respect to some pre-existing right. The doctrine usually is applied when there is a case of collusive judgment in fraud of creditors. A stranger whose rights accrue to him after the rendition of the judgment alleged to have been obtained by fraud, cannot attack such judgment on that ground in a collateral proceeding. Stoutimore v. Clark, 70 Mo. 471; Githens v. Barnshill, 184 S.W. 145; Abington v. Townsend, 197 S.W. l.c. 256. (16) The exception to the general rule regarding a collateral attack upon a judgment can avail only one whose rights have been affected by it, and not one who acquires an interest in the subject matter of the judgment after its alleged fraudulent procurement. The defendant in error Freeman, had no rights which were affected by the judgment of the Probate Court of Clinton County, Missouri, in ordering the sale of real estate and in the confirmation of the report of sale of the land in question he, the said Freeman, defendant in error, having acquired his alleged claim for right of title and to the possession of the tract of real estate in dispute long after said administrator's deed. Stoutimore v. Clark, 70 Mo. 471; Githens v. Barnshill, 184 S.W. 145; Abington v. Townsend, 197 S.W. l.c. 256. (17) Parties to an action and parties in privity with them cannot collaterally impeach a judgment on the grounds of fraud. DeGrow v. DeGrow, 7 Mo. App. 121; State ex rel. v. Ross, 118 Mo. l.c. 45; Reed Bros. v. Nicholson, 158 Mo. 624; Johnson v. Realty Co., 167 Mo. 325; Abington v. Townsend, 197 S.W. l.c. 256. (18) If the action has an independent purpose and contemplates some other relief or result although the overturning of the judgment may be important or even necessary to its success then the attack upon the judgment is collateral. Abernathy v. Railway Co., 286 Mo. 30, 228 S.W. 486; State ex rel. v. Ellison, 285 Mo. 301, 226 S.W. 559; State v. Bank, 279 Mo. 228, 213 S.W. 815. (19) Even if a judgment is voidable, that is so irregular or defective that it would be set aside or annulled on a proper direct proceeding for that purpose it is well settled as a general rule that it is not subject to a collateral tax. Reed v. Nicholson, 158 Mo. 624; Posthewaite v. Ghiselin, 97 Mo. 420; Gunby v. Cooper, 177 Mo. App. 354, 164 S.W. 152. (20) A judgment cannot be impeached on the grounds that there was fraud in the concoction of the judgment. If the answer could raise such an issue it would be to allow the destruction of a judgment for fraud upon a cause of action stated only in the answer. This cannot be done. Moss v. Fitch, 212 Mo. l.c. 502; Daniel v. Pryor, 227 S.W. 105; Howey v. Howey, 240 S.W. l.c. 456.
R.H. Musser for defendant in error.
(1) Watson on accepting the appointment of administrator became a debtor to the estate of James W. Watson and remained such debtor until he satisfied this debt shown by the judgment of the probate court and the execution issued therefor. Orniston v. Trumbo, 77 Mo. App. 310. (2) The judgment against Watson and his bondsmen on the accounting of a final settlement by the probate court, not being appealed from, from its date became valid and binding. State ex rel. Hyslop v. Billby, 50 Mo. App. 162. (3) Conveyances among relatives are signs from which fraud may be inferred. Matz v. Miami, 108 S.W.2d 975; Bank v. Blick, 115 S.W.2d 27; Fulkerson v. Sappington, 104 Mo. 472. (4) The plaintiff did not take the witness stand and was charged with the character, knowledge and intent of the conveyance to him, and was present all during the trial. Mason v. Perkins, 180 Mo. l.c. 708. (5) Where a conveyance is fraudulent and void a judgment creditor may levy an execution upon the property. Ryland v. Calson, 54 Mo. 513; Kinley v. MacKlin, 2 Mo. App. 241; Dunnica v. Coy, 28 Mo. 525; Woodard v. Mastin, 17 S.W. 308, 106 Mo. 324; Holden v. Wade, 200 S.W. 1053, 273 Mo. 231; Dalton v. Barron, 239 S.W. 97, 293 Mo. 36; McDonald v. Rumer, 8 S.W.2d 592. (6) Where the consideration is insufficient, fraudulent, or no consideration at all, the judgment creditor can enforce his collection on the land. Johnson v. Stevins, 66 S.W. 933, 167 Mo. 325; same, 76 S.W. 1021, 177 Mo. 581; Bank of Fulton v. Nicholas, 100 S.W. 613, 202 Mo. 309; Synder v. Free, 21 S.W. 847, 114 Mo. 300; Leaper v. Bates, 85 Mo. 224; Bank v. Fry, 115 S.W. 439, 216 Mo. 24; Ward v. Stutzman, 212 S.W. 65.
Plaintiff in error, plaintiff below, filed suit in ejectment against defendant in error to recover possession of the SW¼ of the SE¼ of Sec. 30, Twp. 57, R. 32, Clinton County. A question of title was raised, by subsequent pleadings, by both parties and the cause concededly became one in equity to determine title. The venue was changed from Clinton County to Gentry County, where the court found that plaintiff in error had no interest in the land, but that defendant in error was the owner, and plaintiff below sued out writ of error. We shall refer to the parties as plaintiff and defendant.
James W. Watson executed his will July 21, 1925, and died in May, 1926, seized of the land in question and other land. In the will, six forties, in said section 30, were devised to testator's children, and grandchildren, subject to the life estate devised to his wife, Kansas Watson. The wife and the other devisees survived the testator, but the wife died in 1926. The remainder interest in the land in question was devised to Charles E. Watson, son of the testator. The wife was named executrix in the will, but she waived her right to administer, and Charles E. Watson was appointed administrator with will annexed.
Plaintiff claims title under a quitclaim deed dated June 1, 1927, from Charles E. Watson and wife, and under a deed dated May 9, 1928, made to him by Watson as administrator. The administrator's deed is based upon an alleged private probate sale. April 18, 1928, of the land in question to pay debts of the testator. Defendant claims title under a sheriff's deed based upon a probate court judgment, Clinton County, rendered May 11, 1935, against Charles E. Watson as administrator of the Watson estate and the sureties on his administrator's bond. The judgment, sheriff's sale, and the sheriff's deed to defendant were subsequent to plaintiff's deeds, but defendant contends that the quitclaim deed and the administrator's deed to plaintiff were mere shams, phony, and that Charles E. Watson was, in fact, the owner of the land in question at the time of the judgment and at the time of the levy and sale thereunder. Defendant has been in possession since shortly after his purchase at the sheriff's sale September 23, 1935.
The principal questions are: (1) Was administrator Watson, in fact, the owner of [715] the land at the time of the probate court judgment, or, to state the question otherwise, were the quitclaim deed and the administrator's deed, under which plaintiff claims, mere shams, phony, as defendant contends? and (2) Was the probate court judgment against Watson a valid judgment?
Plaintiff introduced, with other evidence, the quitclaim deed, the administrator's deed, and called administrator Watson as a witness. The quitclaim deed to plaintiff, as appears, supra, was executed by Watson and wife June 1, 1927, and recites a consideration of $300. The administrator's deed (May 9, 1928) to plaintiff recites that it was based upon an order (April 18, 1928) of the probate court of Clinton County; that Cecil T. Bostwick, plaintiff here, became the purchaser of the land in question for $2400, and had paid $1600 cash to the administrator and for the balance had executed a note for $800 due in 5 years and secured by deed of trust on the land. The quitclaim deed and the administrator's deed were duly recorded.
Administrator Watson, as a witness for plaintiff, testified that prior to his father's death, he had the land in question rented from his father, and that upon his father's death, he went into full possession and remained in possession until defendant took possession. He says, however, that, after "the sale of the land in the probate court," he rented from Bostwick, the plaintiff. Watson further testified that plaintiff got the $1600 claimed to have been paid when the administrator's deed was executed, from his (Watson's) wife, and gave a note therefor to her, and that plaintiff executed the $800 note and deed of trust as recited in the administrator's deed. He said that plaintiff paid $1600 first, and paid later $300 on the $800 note, and paid the balance of the $800 note by paying the balance on a note owed in his lifetime by James W. Watson, deceased. Administrator Watson, January 6, 1933, satisfied the record of the deed of trust securing the $800 note.
The facts upon which defendant relies are about as follows: The probate court judgment against administrator Watson, and upon which defendant's claim of title is based, was for $459.15, and, as stated, was against Watson, administrator, and the sureties on his administrator's bond. Among the grounds upon which the validity of the judgment is attacked is that there was no notice given the administrator or his sureties of the hearing resulting in the judgment. Administrator Watson filed five settlements and these were introduced by the defendant. The record does not show the date of the first settlement, but it appears from the settlement that the balance due the estate was $3447.64. The second settlement was filed and approved August 11, 1927, and shows a balance due the estate of $3385.23. The third settlement was filed and approved January 17, 1928, and shows a balance due the estate of $3521.91. According to the settlement, $2136.80 of this balance was for notes due the estate.
So far as appears, no settlement was filed subsequent to January 17, 1928, until February 5, 1935, at which time the administrator filed what is termed a final settlement. By this settlement it is made to appear that the estate owed the administrator $38.42, but the settlement was not approved. Thereafter, Cora Roberts, Mollie Watson, guardian of Carl J. and Edna L. Watson, minors, grandchildren of James W. Watson, deceased, A.R. Alexander, and Merrill K. Watson, filed exceptions to the final settlement. February 28, 1935, the court issued a citation to the administrator, which stated that the named exceptors had filed exceptions. The citation directed the administrator to appear in the probate court on March 14, 1935, at 10 A.M. and show cause why he had not made a just and true account, and why he should not be removed as administrator, "and to make final settlement of all property and assets of said estate in your hands and deliver same as may be ordered by the court." The citation was served on the administrator on March 1, 1935, in DeKalb County, by the sheriff of that county.
March 14, 1935, the return day of the citation, there was a hearing in the probate court on the exceptions, at which hearing the administrator was present, but not the sureties on his bond, or either of them. The court, in its finding, reviewed various charges and credits made and taken by the administrator and found that he owed the estate $1663.34.
March 20, 1935, the court made an order which recited that the court had that day examined the administrator's bond, and "it appearing to said court" that on September 3, 1932, citation was issued to the administrator directing that he make a "new bond," and it further appearing that on September 17, 1932, the sureties on the administrator's bond had filed a suggestion of his insolvency [716] (See Sec. 28, R.S. 1939) and of his waste of the estate, and had expressed a desire to be relieved of further liability on the bond, it was ordered that the administrator "enter into a new bond as such administrator with good and sufficient sureties, in the sum of $3,250.00, to be conditioned according to law, and that he be notified hereof by a certified copy of this order sent to him by registered mail at his present post office address, Stewartsville, Missouri (DeKalb County) and that unless a new bond is so entered into within ten days from the date of the receipt of this order by said administrator, he will be removed as such administrator."
March 29, 1935, the administrator asked for and was granted leave to file an amended final settlement. In the application for such leave it was stated that he had discovered certain errors causing the final settlement "not to conform to the facts, and that said settlement is incorrect, and that this petitioner, the above named administrator, desires to file an amended settlement to correct said errors." The amended final settlement was filed April 18, 1935, but was not approved. In the amended final settlement it appeared that the estate owed the administrator $13.07, and not $38.42, as was shown in the original final settlement. On the day that the amended final settlement was filed, the probate court adjourned until May 11, 1935, at which time, as appears, supra, the judgment against the administrator and his sureties was entered.
There is no showing that the administrator, his sureties, or either of them, or any one interested in the Watson estate, appeared on that day, May 11, 1935. And there is no showing that the administrator, or any one else, was served with notice to appear on that day. The administrator was in court the day court adjourned to May 11th, but there is nothing to show that he was present at the time of adjournment. And there is nothing in the order of adjournment, so far as appears, as to what would be taken up on May 11th.
Pertaining to the Watson estate, the court, on May 11, 1935, found: (1) That theretofore the administrator had been ordered to file a proper settlement; (2) that a hearing was had March 14, 1935, at which the administrator and his attorney were present, and that at this hearing the just indebtedness of the administrator to the estate was determined; (3) "that thereafter (March 20, 1935) by an order of record, and after due notice, this court directed" that the administrator file a good and sufficient bond in 10 days, and that he has failed to do so.
On May 11, 1935, the letters of administration granted to Watson were revoked, and Julian L. O'Malley was appointed de bonis non and qualified same day. And the court, as appears from the order, went on to find that ex-administrator Watson should pay Nellie Watson, guardian, $170.83; the widow and heirs of Alfred H. Watson, deceased, $158.17. These items were for alleged excess charges made by administrator Watson for the release of two forty-acre tracts of the estate from "the indebtedness of the estate." It was further found that administrator Watson had taken credit for $67.45, costs in certain estate litigation, which costs he had not paid, and that he had taken credit for probate court costs, amounting to $29.75, and an attorney's fee of $15.00, neither of which he had paid. Also, it was found that he had taken credit for $17.95 for commission to which he was not entitled. The total was $459.15.
It was found that the administrator was indebted to the estate in the sum of $459.15 for the use and benefit of those mentioned, Nellie Watson et al., supra. It will be noted that on March 14, 1935, the court found that the balance due the estate was $1663.64. And on May 11, 1935, it was found that the $459.15 was "now due Julian L. O'Malley, administrator, from Watson and the sureties on his official bond." And it was "adjudged and decreed by the court that the said Julian L. O'Malley have and recover of and from Charles E. Watson" and his sureties, naming them, "the sum of $459.15, and it is further ordered and adjudged by the court that upon the collection of said sum the said Charles E. Watson" and the sureties "be and are hereby fully released from any and all further liability by virtue of being principal and sureties on said administrator's bond as aforesaid.
"It is further ordered, adjudged and decreed that execution issue for and against said parties for said sum.
"And it is further ordered, adjudged and decreed by the court that the said Julian L. O'Malley, administrator aforesaid, proceed forthwith to collect said sum of $459.15 and that when collected he make distribution thereof in accordance with this order and judgment."
[717] The sheriff's return on the execution shows that defendant purchased at the execution sale on a bid of $600. Defendant also invokes certain portions of the evidence of administrator Watson. As stated, supra, Watson testified that plaintiff paid to him $1600 in cash when he, plaintiff, purchased the land in question at the probate sale. On being asked where he deposited the $1600 cash, he said "I don't think I deposited it anywhere. I think it was taken and paid on the Hemple note in cash." The Hemple note was a $4142.00 note given to the Bank of Hemple by James W. Watson and wife, April 24, 1926. Reminded that the cashier of the Bank of Hemple had testified that a payment on that note had been made by the administrator with a check, Watson said, "Yes, and I paid him some more that same day."
Defendant introduced a deposition of plaintiff taken in another case. Prior to 1922, administrator Watson owed one Kelley a note secured by deed of trust on some land. Kelley foreclosed November 6, 1926, and from the foreclosure there was credited on the note the sum of $2052.20, leaving a balance due of $567.76. Thereafter, Kelley brought suit, "to set aside some conveyances," against Watson, individually and as administrator, his wife, Cecil T. Bostwick, plaintiff here, and A.R. Alexander, who was trustee in the $800 deed of trust given by plaintiff to secure, as claimed, the $800 note, supra. In the suit to set aside, and subsequent to both the quitclaim and the administrator's deed, Kelley, on December 13, 1928, took the present plaintiff's deposition in Chandler, Oklahoma, and that is the deposition introduced. It was admitted on the theory that it contained admissions against interest. In the deposition plaintiff testified:
That he was a brother of administrator Watson's wife; had never married; was about 30 years old and resided in Lincoln County, Oklahoma, and had never resided in Clinton County, Missouri, except for about 3 months in 1919 or 1920; that he was in Clinton County, Missouri, in August, 1923, but had not, since then, been in Clinton County. He further testified that he had not seen Charles E. Watson since 1924. (Watson testified that all transactions with plaintiff as to the purchase of the land, etc., were by mail, but that he had none of the letters.) In the deposition plaintiff was asked if he was familiar with the SE¼ of the SW¼ of Section 30, supra, and said that he had seen it. The land in question is the SW¼ of the SE¼. The deposition then goes on as follows:
"Q. You at one time owned that piece of property? A. No. sir. Q. Have you ever owned that piece of property? A. No, sir. Q. On or about the 5th day of May, 1928, will ask you to state whether or not you executed a quitclaim deed, naming A.R. Alexander and Charles E. Watson, administrator of the estate of James W. Watson, deceased, as grantees, whereby you conveyed the property just described, to those parties? A. I think I did, if I remember right. Q. You think you did? A. Yes: Q. Ask you to state whether or not you became the purchaser of the property just described at an administrator's sale on the 18th day of April, 1928? A. Did I purchase it? Q. Yes. A. No, sir. Q. Then if the records of Clinton County, Missouri, disclose that you became the purchaser of that property at an administrator's sale, that is a mistake, is that right? A. May be, yes; if I remember right. (The report of sale was filed April 18, 1928, and shows only the land in question sold to plaintiff on that date.) Q. Ask you to state whether or not you paid Charles E. Watson or any person for him, as administrator of the estate of James W. Watson, deceased, the sum of $1,600.00, as the purchase price of the property above described, on or about the 18th day of April, 1928? I don't think I did, if I remember. Q. Ask you to state whether or not on or about the 1st day of June, 1927, you executed and delivered a quitclaim deed to Charles E. Watson and Elsie L. Watson, conveying the property above described? A. Yes, sir. Q. What was the consideration for that deed? A. I have forgotten. Q. To refresh your memory, was it $300.00? A. It might have been; something like that. Q. Now, as a matter of fact, it was Charles E. Watson and Elsie L. Watson that conveyed that property to you, wasn't it? A. It might have been. Q. Did you pay Charles E. Watson and Elsie L. Watson $300.00 for the property [718] above described, on or about the 1st day of June, 1927? A. I don't remember whether I did or not. (June 1, 1927, was the date of the quitclaim deed.) Q. Do you now remember whether or not you bought the property from them? A. No, sir. Q. You don't remember of purchasing this property at an administrator's sale? A. No, sir. Q. Do you now have any claim on this property? A. No, sir. Q. Have you ever had any claim on this property? A. No, sir. Q. Ask you to state whether or not, on or about the 5th day of May, 1928, you executed to Charles E. Watson, administrator, a promissory note in the sum of $800, bearing interest at the rate of five per cent annually, and due in five years from that date? A. No, sir; I don't remember anything about it. . . . Q. Did you ever at any time pay Charles E. Watson, administrator of the estate of James W. Watson, deceased, $1,600.00 in money — A. No, sir. Q. As part purchase price of the land just described? A. I don't think I did, if I remember right. Q. Then if the records pertaining to this land, in Clinton County, Missouri, show that you purchased this land at an administrator's sale, for the sum of $2,400.00, and that you executed a trust deed to secure the sum of $800.00, as partial payment on this land, those records are wrong? Is that true? A. May be. Q. Don't you know? A. Sir? Q. Don't you know? A. To be frank with you, I don't believe I remember. Q. You don't remember of purchasing the land? A. No, sir. Q. Will you now say that you did purchase the land? A. No, I didn't purchase it. Q. You now say you didn't buy the land? A. Yes. Q. Do you now say that you did receive a quitclaim deed to this land from Charles E. Watson and Elsie L. Watson, dated June 1, 1927? A. I don't remember whether I did or not. Q. Do you say you didn't? A. I might have. Q. Do you now say that you paid the Watsons $300.00, on or about that date, as a consideration for the execution of this quitclaim deed? A. I don't think so. Q. Do you say that you didn't? A. Yes, sir."
As stated, plaintiff, in the deposition, was asked about the SE¼ of the SW¼, and not the SW¼ of the SE¼, the land in question, and plaintiff, in the brief, calls attention to that fact in urging the alleged incompetency of the deposition. When the deposition was offered, such objection was not made. The objection then made was that it was "a record of the circuit court of another circuit and it has not been properly identified." There is some evidence in the record tending to show that plaintiff claimed to own land of the James W. Watson estate other than the land in question, but from the inquiries made in the deposition, it is quite apparent, we think, that plaintiff, in the deposition, was being asked about the land involved here.
It also appears that neither Mrs. Watson, who is said to have loaned plaintiff the $1600, nor plaintiff, testified. The case was on trial for two days, and plaintiff was present. Just before the case closed, Watson was recalled by defendant and was asked where his wife was, and said that she was at home. Then he was asked where plaintiff was, and said, "He went to my place at Stewartsville. He had to take Butler home." Who Butler is, does not appear, nor does it appear why plaintiff had to take him home, or why he did not testify. It is well settled that "the failure of a party having knowledge of facts and circumstances vitally affecting the issues on trial to testify in his own behalf, or to call other witnesses within his power who have knowledge of such facts and circumstances, raises a strong presumption and inference that the testimony of such persons would have been unfavorable and damaging to the party who fails to proffer the same." [Russell v. Franks et al., 343 Mo. 159, 120 S.W.2d 37, l.c. 41, and cases there cited.] However, the unfavorable inference rule stated is not applicable here because defendant introduced his adversary's deposition. One may not have the advantage of the inference and the evidence, too. [Clapp v. Kenley et al., 277 Mo. 380, 210 S.W. 10, l.c. 12, 13.]
Defendant called as a witness, John J. Robinson, an attorney. Over the objection [719] and exception of plaintiff, Robinson was permitted to testify that administrator Watson told him that he, Watson, "owned the land (of the Watson estate) that was in the name of Cecil Bostwick." The objection to the evidence of Robinson was on the ground that whatever was said to Robinson on the subject was said when the relation of attorney and client existed and under such circumstances as to make it privileged. It will not be necessary to rule the point. Absent this evidence, there was sufficient evidence to support the finding of the trial court on the question of plaintiff's ownership of the land in question.
On an objection made by plaintiff to a question asked one of defendant's witnesses, the trial court said: "Here is the way I look at this matter. Apparently the parties themselves didn't consider Bostwick got title through this quitclaim deed, given shortly after the father's death, but if he did, he took it subject to the father's debts. So far as I have been able to find, there is no approved final settlement. There is no place in the settlement he made where the proceeds he had were ever accounted for. No place in the annual settlements, which are not final, but are admissions against interest — no place where this money was ever accounted for."
It "is well settled that, in statutory actions to quiet title to land, plaintiff must prevail solely upon the strength of his own title, and not upon the weakness of the title of his adversary." [Cullen et al. v. Johnson, 325 Mo. 253, 29 S.W.2d 39, l.c. 46, and cases there cited. See also, Owens v. Owens et al., 347 Mo. 80, 146 S.W.2d 569, l.c. 577; Brown v. Weare et al., 348 Mo. 135, 152 S.W.2d 649, l.c. 655.]
The trial court found that plaintiff had no title, and there is nothing in the record that would justify the overturning of that finding. It will not be necessary to rule the point on plaintiff's contention as to the validity of the sheriff's deed to defendant. The validity of that deed is no concern to plaintiff, if he has no title. [Cullen et al. v. Johnson, 325 Mo. 253, 29 S.W.2d 39, l.c. 46; Senter v. Wisconsin Lumber Co., 255 Mo. 590, l.c. 601, 602, 164 S.W. 501; Wheeler v. Reynolds Land Co., 193 Mo. 279, l.c. 291, 91 S.W. 1050; Parker v. Wear et al. (Mo.), 230 S.W. 75, l.c. 78.]
The judgment entered by the trial court recites that the court found that defendant "is the sole owner in fee simple absolute of the land" in question. That means, of course, as between plaintiff and defendant.
The judgment should be affirmed and it is so ordered. Hyde and Dalton, CC., concur.
The foregoing opinion by BRADLEY, C., is adopted as the opinion of the court. All the judges concur.