Diehl v. Emig

The opinion of the court was delivered, May 12th 1870, by Thompson, C. J. It is elementary doctrine that the contents of a deed of conveyance lost, destroyed or suppressed, may be established by parol evidence in an action of ejectment, when its existence as a valid instrument has first been satisfactorily proved: McReynolds v. McCord, 6 Wright 288. The effect of such proof is of equal force in sustaining the title of the grantee as if the deed itself had been presented. This is so ex necessitate rei, otherwise titles might be defeated by fraud or accident, without fault on part of the vendee, and in disregard of the consideration for the conveyance. A rule like this would he so obviously unjust that it could not exist in any civilized land. A near equivalent of such a rule, would be any rule which should render such proof impracticable by technical requirements,or to the order of proof; such for instance as the requirement of perfect proof in the theory of a 'first step taken before a second should be attempted. All competent evidence in such a case should be received when offered, whether in logical sequence or not, especially if offered to be followed by what would make out a complete case if believed. When the testimony is in, it is the duty of the judge to inform the jury what the law requires to be extracted from the body of it in order to make out a good and valid case in law, and what effect a failure to do so would have. A party must begin with his proof somewhere; and where, is less important a great deal than its completeness. A judge will look at the latter with great care as being of the very essence of the contest, and at the former as a desirable result rather than an essential one. We think the first offer of the plaintiffs below should have been received. It was not only orderly but essential. It went to prove [327] tbe drawing of a deed by a scrivener at tbe request of the grantor, John Emig, Sr., for the land in question to his daughter Sarah, and to establish its execution and delivery to her. The witness saw it after he had drawn it as requested; and it ,was completely executed by the grantor’s signature in the presence of a witness, and was duly acknowledged before a magistrate. It was produced by the grantor, it is trfle, but simply to obtain what he supposed was necessary in order to make it valid as a complete conveyance. The signatures of the witnesses, and. more especially the official certificate of the magistrate, attested that the deed was executed and had been delivered. “ Signed, sealed and delivered,” was the solemn statement of the grantor, formally acknowledged before a magistrate,and admitted to the witnesses. In Blight v. Schenk, 10 Barr 285, it was held that such circumstances, unaccompanied by any fact which would countervail their effect, would establish a prirná, facie case of due execution, including delivery, and call upon the other side to rebut their effect by proof of non-delivery. This view was overlooked by the learned judge below; and not only were these facts thought to be no evidence of delivery, but the accompanying proffered facts set forth in the offer were held to be no aids in the establishment of the material fact. The auxiliary proof, as it may be called, not only strengthens the presumption of delivery of the deed arising from its acknowledgment, but was itstelf strengthened by that fact. It was offered to show acts and declarations of the grantor, in and out of the presence of his daughter, in exact accordance with the effect of his conveyance, and furthermore how he happened to have possession of the deed. He declared the land hers — told his tenant in effect to attorn to her; told him and others that she owned the land; and he acted as her agent in leasing the farm and collecting rents for her. He took charge of her papers and money to keep for her, as he declared, and at her request, during her life. We are to consider all this as if it had been proved, because in its identity and unimpeached form the court refused to hear it, on the ground that it was inherently insufficient to tend to prove an execution and delivery of the deed. We discharge our duty in this review by simply holding, as we do, that all this was competent testimony, and, if believed, important evidence for the plaintiffs for the purpose for which it was offered, without applying to the features of the case in hand, or to any special features that may be in it — ■ that will be done by the court and jury, aided by counsel when it is re-tried. This assignment of error is therefore sustained. That portion of this offer containing the facts about the tin box, and the declaration about its containing his daughter’s writings and money, and the acts and doings of the executors in regard to it, together with the offer of testimony contained in the [328] third bill of exceptions, were undoubtedly evidence not only as being the acts and declarations of the executors to whom the box and its contents came, and the parties to the action, as raising some grounds to infer fraudulent management, and to suppress the truth, but also to charge spoliation of the deed in question upon them, especially as the offer was also to show that they refused to produce the box and its contents as it came into their hands on notice to do so. If a jury should be convinced of the spoliation, it would he their duty to infer anything in favor of the deed as against the spoiler. I do not limit the testimony to this view alone. It may be important in other aspects ; certain it is it ought to have been received. As George Diehl, the husband of the grantee in the deed, will probably be a competent witness for the plaintiff in another trial, under the provisions of the Act of 1870, to prove what is proposed to be proved by him on the last trial, the scope of these offers will he more distinctly apparent. We think the fourth assignment of error is also sustained, independently of this consideration. There seemed to be some appearance of an idea in the mind of the court below,that the ground of the controversy assimilated itself to a case of parol sale, and hence declarations of the grantee could not be given in evidence. The evidence was not to prove a grant or sale by parol, but the existence of a deed containing the terms of a grant. The factum of a grant was not proposed to be proved — but the instrument containing it, and then the contents would show the grant, and the case would not be within the Statute of Frauds and Perjuries. The existence and loss of the deed was a fact in pais, to be proved like any other fact; of course its nature would require clear and full proof of the fact, but this would not exclude the declarations of the grantor, especially when corroborated by actual proof of the existence of the deed at one time. We are of opinion that the other bills of exceptions contain no error as to the rejection of the testimony of the plaintiffs below. As the law stood the husband was not a competent witness, although he will be, we think, under the act above referred to, to prove anything occurring since the decease of the decedent, and that was what was proposed to be proved by him. The wife was incompetent under the Act of 1869, and will he under the Act of 1870, to prove what was proposed to be proved by her at the last trial. These errors are therefore not sustained; but the judgment must be reversed for the reasons given above. Judgment reversed, and venire de novo awarded.