Roe & McDowell v. Doe ex. dem. Irwin

By the Court Jenkins, J., delivering the opinion. The verdict of the Jury in this case being for the plaintiff, the defendant moved for a new trial on the several grounds stated above. The Court below refused the motion, and defendant excepted on each-ground so taken. There seems to have been an unusual fatality attending the title papers in this cause, both parties having been compelled to resort to secondary evidence, and the complainant’s chain being made out entirely by evidence of this character, several of the exceptions refer to the insufficiency of this evidence. And it is objected, first, that no sufficient foundation is laid for its introduction. The showing on this head consists, first, of the affidavit of William H. Irvin, the plaintiff’s lessee, and secondly, of that of his grantor, Richard Mathias, who, at the commencement of the action, and when his affidavit was filed, was a party to the record, (a demise having been laid in his name,) but upon his death, pending the action, the declaration was amended by striking his demise. Irwin swears that he believes, that the original grant, and all of the title deeds from the grantees to his grantor, Richard Mathias, (specifically reciting them,) were once in existence, and were burned when the house of the said Mathias was destroyed by fire, and that none of said originals were then in his possession, power or control. Mathias swears positively to the existence of the same papers, and to their destruction by fire—adding, out of abundant caution, they were not then in his possession, power or control. ■ 1. These affidavits come fully up to the 50th Common Law rule of practice, except that the word “ control ” is substituted for the word “ custody.” In Ratteree vs. Nelson, 10th Geo., 439, this Court decided that a party had substantially complied with this rule, who swore, after stating his belief of . [49] the loss or destruction of the original, “ that it was not in his custody, power or control.” In that case, control was substituted for possession, in this for custody. Therefore, strict literal compliance is not required. A party who swears that a paper is neither in his possession nor his control, certainly swears substantially that it is not in his custody. I cannot conceive of custody in the absence of both possession and control. 2. It is objected that the affidavit of Mathias was improperly received, he not being a party at the time. Having been a party when the affidavit was made and filed, and having been stricken from the record only in consequence of his death, his affidavit was a paper of file in the case, and so comes to us; was intended only as evidence for the Court, not for the jury, and wé think was properly considered by the Court. ' But apart from this, the affidavit of Irwin was a sufficient foundation for the introduction of secondary evidence. 3. But other objections were raised against the introduction of these papers. The copy grant is objected to on the ground that, in one place the surname of the grantees is written '“Loyons,” instead of “ Lyons,” the latter being the name of the grantees, and of the persons who conveyed. This is rather hypercritical for grave consideration. The fact of the name having been written both Avays in the grant, shows that in one AA'riting or the other, there was a clerical mistake; and the circumstance, that it was only once written Loyons is suggestive, that the mistake occurred just there. It is objected that the Court erred in receiving the evidence of John P. Lyons to prove the execution and contents of the deed from the owners to Barrington, and in receiving the evidence of Robinson to prove the execution and contents of the deed from Barrington to Mathias. 4. First, it is said thatthé 50th Common Law rule of practice does not govern the case, because plaintiff sought only to give in evidence the contents of the deeds by parol, not copies of them, and that the Common Law rule requiring a shoAving [50] as the foundation for such secondary evidence was not complied with. We think it was. The pre-existence of the deeds was proven, and also their destruction by fire, and all necessary diligence was shoAvn on the part of the plaintiff. 5. It is further objected that the evidence of these witnesses falls short of proving the contents of the deeds in question. They prove who was the grantor, who was the grantee; that the land in dispute was the subject granted; that there was a consideration paid; that the deeds were signed, sealed and delivered in the presence of two witnesses, Lyons and another, having attested one, and Eobinson the other, as subscribing witnesses; each witness states the year in which the deed he witnessed, was executed. Eobinson states that the deed he witnessed, was in the usual form of warranty deeds. We know of no rule which determines with precision the degree of fulness with which the contents of a deed shall be stated in such cases. We think all the law requires is a statement of the substantial, material parts of the deed, so that the jury may determine who were the parties, what the subject of conveyance, whether a deed was really signed, sealed, delivered and attested as the law requires, and as nearly as may be, the time of its execution. The evidence of these witnesses we think fulfilled all these requirements, and was properly referred to the jury for their consideration. 6. The copy deed from Mathias to Irwin, taken from the County records, was objected to on the ground that the original was not sufficiently accounted for, and the overruling of the objection was made a ground of motion for a new trial. We think the testimony of Henry Irwin and Mary Irwin fully accounts for the absence of the original, and that the copy was properly admitted. 7. We detect no error in the charge of the Court, as set forth in the seventh ground of the motion for a new trial. The evidence was very fairly referred to the consideration of the jury, and to say that there was error of law in that charge, would be to hold, that when the destruction of an [51] original deed for land had been satisfactorily proven, parol proof of its contents by a subscribing witness, is insufficient evidence of a transfer of title. This we cannot hold. It is not evidence of a conveyance of land by parol. It is parol evidence of a conveyance by deed,-the loss or destruction of which has been proven as a preliminary to the introduction of secondary evidence, being the best of which the nature of the case admits. It is, however, evidence of a conveyance by deed, and if it satisfied the minds of jurors, that such conveyance was made, it is sufficient. This is the effect of the Court’s charge. 8. Nor can we perceive error in the charge set forth in the 8th ground. It is in substance this: If A. advance to B. $400 to be paid as a part consideration of the purchase of a tract of land for her grandson C., a child of twelve years, on condition that the title be made to that child, and B. give his promissory note for $600, as the remainder of the consideration, and the title be made by the vendor to the child, who is the son of B., it will vest the title in C., and he will hold the land against a subsequent purchaser at sheriff’s sale under a judgment obtained upon said promissory note of B. The purchaser at sheriff’s sale can be in no better condition than the vendor of the land, and payee of the note, upon which the judgment was founded. He could not subject the land to the payment of the note in virtue of the vendor’s lien, because, by conveying to C., he undertook and elected to rely upon the credit of B., knowing that the whole consideration did not move from B. This judgment had no higher lien upon the property than any other against B. The condition of the purchaser at sheriff’s sale, therefore, is that of a man who buys the property of C., an infant, when sold under execution to satisfy the debt of B. The charge of the Court was, that in such a case, C.’s title is better than that of the purchaser at sheriff’s sale, and it was right. 9. The charge refused by the Court, as stated in the 9th ground, was just the opposite of that just considered. If the Court was right in giving the one, as we have held, he was right in refusing the other. [52] 10. The grounds taken that the verdict was contrary to law and to the charge of the Court, and to the evidence, remain to be considered. The Statute of Limitations pleaded by the defendanfcould not bar plaintiff’s recovery under the evidence, because he was under the disability of infancy when the cause of action accrued, and brought his suit within seven years after the removal of the disability. We are unable to perceive that the verdict was contrary in any respect, either to the law or to the charge of the Court. The case really turns upon the evidence, and the only remaining question is, whether the verdict was contrary to the evidence, or strongly and .decidedly against the weight of evidence.' The defendant sought to vitiate the plaintiff’s title by fraud; not committed by plaintiff, (who was a child of twelve years when the deed to him was executed,) but fraud committed by his father, Henry Irwin, with a view to circumvent creditors, to whose rights he insists the purchaser at sheriff’s sale and his assigns are subrogated. There was abundant proof on the part of the plaintiff of the bonajides of the transaction, if the jury believed his witnesses. There was- also proof enough made by one witness on the part of the defendant, taken per se, to establish fraud on the part of Henry Irwin, (plaintiff’s father,) who was the acting party in the purchase. But there was a conflict in the testimony adduced by the parties, and there is, moreover, some discrepancy, on a material point, between two of the defendant’s witnesses. There was no impeachment of any witness, for lack of character for truthfulness. It is a case of doubt,' eminently one to be referred to the sound discretion of. a jury. We cannot say, either that their verdict is without evidence to support it, or that it is strongly and decidedly against the weight of evidence. It ought not to be disturbed. We, therefore, affirm the judgment of the Court below, overruling the motion for a new trial. Judgment affirmed.