Pool v. . Anderson

Connor, J. Conceding that, notwithstanding the fact that Stockton, and those claiming under him, Have been in possession of the land since the execution of the bond for title, the burden of proof to' show that the purchase money had been paid was on defendant, we think that his Honor correctly held that the note was competent evidence to be considered by the jury upon that issue. Plaintiffs’ counsel strongly urges that there is no evidence connecting the note with the bond for title. We think that there is evidence tending to show that it was given in part payment of the purchase money for the land. In every respect *626 except amount it is shown to correspond with the recitals in the bond. It bears the same date. There is evidence tending to show that it was written and witnessed by the same person, at the same time, and that the name of the payer has been cut off. If the jury found that it was given in part payment of the purchase money, we think the .fact that it was found in its present condition, wrapped in the bond for title, among Stockton’s papers, after his death, is a pregnant circumstance tending to show that it was paid by him; especially is this so, in view of the long-continued possession of the land under the bond. It is true that the mere possession, by the payer, of a note without any endorsement thereon is not evidence of payment unless it appears that it was delivered to the payee. When, however, the bond for title, executed by the payer, reciting the execution of a note, accompanied with the -possession of the land by the payee for twenty-eight years, both parties to the transaction being dead, the note is found in the possession of the payer, wrapped in his muniment of title, it should not be excluded from the jury. The possession does not raise any presumption of payment or change the burden of proof. It is a circumstance — a condition, open to explanation, but of sufficient relevancy to the fact in issue to entitle it to be considered in connection with other evidence to aid the jury in arriving at a correct conclusion. It is a mistake to say that rules governing the admissibility of evidence, where the question of relevancy is involved, are technical. They are based upon conclusions, drawn from experience rather than logic. For instance, it is well known that among persons not engaged in trade, banking or other occupations requiring the keeping of books containing a record of their transactions, where a note is paid, the payer usually cuts or tears his name out of it and preserves it. Anyone having occasion to examine the papers of persons deceased knows that he usually finds the notes, which such persons have paid canceled, as the one in controversy. It may be said that such is'the general custom. The possession of a note under the conditions found in this case would be regarded as very strong evidence of its payment. This conclusion would be strengthened when the person claiming that the debt for which the note was given has not been paid is *627 unable to produce another note corresponding to the debt, in date, amount and other respects. It was suggested that the declaration by Stockton that he had paid the note would not be admissible. This is true, but its exclusion would not be based upon the suggestion that such declaration was not relevant, but upon the principle that a man’s declarations, made in his own interest, are not admissible. Here we have an act consistent with admitted facts and condition's and inconsistent with the theory that he had not paid for the land. The other evidence bearing upon the issue is not set out in the record. It is simply stated that declarations of both parties to the transaction were admitted. Certainly, in the condition of the case, it would aid the jury to show that the note was found in the possession of the payee, wrapped in his bond. Jurors are men of experience and observation; they usually attach proper weight to facts and circumstances relating to the transactions which they are investigating. "While the courts should carefully exclude such evidence as is misleading or confusing, they should admit such as experience has shown to'be enlightening and helpful in getting at the truth, which is the ultimate end to which every judicial investigation should be directed. We concur with his Honor’s ruling. There is No Error.