Wiley v. Christ

The opinion of the Court was delivered by Kennedy, J. —The first error assigned is, that the court, below did not give an affinnal.ive instruction to the jury on the point submitted by the plaintiffs in error, who were also the plaintiffs below7. The point submitted by the plaintiffs was, that if the jury should believe, as was contended by the plaintiffs, that the deed of conveyance from Jane M’Creary, for the land in dispute, to the defendant Lewis Christ, had been re-delivered by him to her, and at, the same time the bonds which she held upon him for the payment of the purchase money of the land, had been given up by her to him, for the purpose of being cancelled, and that they7 were cancelled accordingly, with a view of setting the purchase of the land by Lewis Christ from Jane M’Creary aside ; the circumstance of Jane M’Creary’s retaining the deed in her possession, without destroying it, until after her marriage with Christ, and his thereby regaining [199] the possession of it, would not reinvest him with the title to the land. To this the court, in addressing the jury, say : “ it is not contended that if the deed was cancelled and actually given up, and the contract rescinded, that the fact of the deed remaining in her possession at the time of her marriage and afterwards, or its having afterwards come to his possession, would vest in him any title; nor that any parol declarations of Jane M’Creary, after her marriage with him, would vest in defendant any title which would continue beyond her lifetime.” It is argued that this was not an explicit and direct answer to the plaintiffs’ point. It appears to me, however, that the jury could not misapprehend the meaning of the court in regard to it; and if so, that is certainly all that can or ought to be required. It is impossible, I think, to understand the charge of the court otherwise than as if they had instructed the jury almost in so many words, that the proposition contained in the plaintiffs’ point was not contended against by the defendant’s counsel, and that the deed being in the possession of Jane M’Creary at the time of her marriage with Lewis Christ, and the deed thus coming into his possession again as her husband, would not vest in him the title to the land. We therefore think this error is not'sustained. Another question was broached by the counsel for the plaintiffs in the argument, which does not seem to have been put to the court below for their answer or direction to the jury on it. That is, whether the mere cancelling of the deed under which Lewis Christ held the title to the land in question at one time, divested him of it and revested it in Jane M’Creary the grantor. That it would not, I think, is fully established by numerous authorities, as well as by the nature and inefficacy of the thing itself, under the provisions of our act against-frauds and perjuries, to produce such an effect. Bolton v. Carlisle, 2 H. Bl. Rep. 263, 264; Clavering v. Clavering, Prec. in Ch. 235; Dando v. Tremper, 2 Johns. Rep. 86 ; Gilchrist Bulkley, 5 Conn. Rep. 262 ; Botsford v. Morehouse, 4 Conn. Rep. 350 ; Farrar v. Farrar, N. Hamp. Rep. 191 ; Holbrook v. Tirrell, 9 Pick. Rep. 105, and 4 Kent's Comm. 452, where these authorities are all referred to in note (a). It may, however, be, that the party who has, for a full price received by him of the grantor, consented to the destruction of a deed never put on record vesting him with the title to real estate, for the purpose of reinvesting the title in the grantor, would not be permitted to show by parol or secondary proof, the former existence and contents of the deed ; if it appeared to the court, from his own showing, that he had destroyed it, or given his assent to the destruction of it, for the purpose of reinvesting the grantor with the title ; or if it appeared from his evidence that the deed was destroyed without his consent, and the court therefore should admit parol evidence to supply the want of the production of the deed itself; and the adverse party afterwards show most clearly that-the deed was destroyed by the consent of the grantee for the purpose of divesting him of the title to the estate and revesting it again in the grantor, the court would proba [200] bly instruct the jury lhat if they believed the fact to be so, they should hold the grantee bound by such act and assent upon his part.; and that in equity and good conscience he was precluded from setting up and claiming under a deed which he had voluntarily destroyed, and for doing of which he had received a consideration equal to the value of the estate. If it be objected to this, that it is passing an estate in fee simple in land without any writing to that effect being signed by (he parly granting the same, or by his agent authorized by writing to do it for him, and therefore contrary to the act. against frauds and perjuries, I say that I think it may be considered as coming within the principle upon which it has been held that parol contracts executed in whole, or to a certain extent in part only, are not within the mischief intended to be provided against by the act. For instance, if in the present, case it had been clearly proved that, after Jane M’Creary had for a full price conveyed by her deed the land to Lewis Christ in fee simple, and delivered to him the possession thereof, without any part of the price being actually paid, but his bonds given to her securing the payment of it, they had, under a verbal agreement made between them, cancelled the bonds, and the deed of conveyance unrecorded in pursuance thereof had been given up by him to her, together with the possession of the land, believing that this was sufficient, and all that was necessary to reinvest her with the title to the land ; it seems to me that it would have been such an execution of the agreement as would have taken it out of the act against frauds. The cancelling of the bonds was equivalent to the payment, of a similar amount of money by Jane M’Creary to Lewis Christ, to obtain the land again. He owed it to her, and she in considemtion of getting the land back released him from the payment of it. In short, the land was agreed to be taken, and the possession of it, together with the title, in pursuance thereof were actually given up and received in payment and full satisfaction of the bonds : upon which the bonds were accordingly cancelled. Although it. was a mistake, common probably to both the parties, to think that all this was sufficient to reinvest Jane M’Creary with the legal title to thejand ; yet I cannot avoid believing that it was sufficient in equity, at least, to make her the cestui que use and Lewis Christ a trustee for her use. A second error has been assigned, that the court erred in telling the jury that “the rule of law is, that the declarations of a person against his interest are generally stronger evidence than his declarations in favour of it.” There certainly was no error in this that could prejudice the plaintiffs, who claimed the land as the heirs of Jane M’Creary and the benefit of declarations made by her in her own favour; for the court might have gone further and have told the jury that the rule of law in such case was, that the declarations of a party, or of those under whom he claimed might be given in. evidence against him, but could not be evidence in his favour at all. This rule and distinction are founded upon a principle of human na [201] ture which seldom prompts a man to say any thing against his own interest, unless it be true ; and being so, it is therefore evidence entitled to full credit: while in other cases generally, so great is the moral infirmity of human nature, that the declarations of a parly, or of those under whom he claims, in favour of his interest, are entitled to no credit whatever in judicial proceedings; and cannot, if objected to, be received as evidence at all—not even when made on oath. There was, then, no error in the court, after the declarations had been received, cautioning the jury against giving too much credit to those made by the party in his own favour, by telling them that they were not as strong evidence for him, as his declarations against his interest would have been, when, in law, as evidence, those made in his favour were entitled to no credit whatever. Judgment affirmed.