Ross v. Pool

STONE, J. If the testimony of Eoss, Pool and Shropshire be believed, Eoss purchased and paid for the land and other property in controversy, and his bill ought to be maintained. But Pool and Shropshire are effectually discredited, and we feel it our duty to discard their testimony from our consideration. Watts and Sturdevant confirm him in the fact of handing the money to Pool; but that fact is of a class of which the counterfeit is not easily distinguished from the genuine. There are some inconsistencies in Eoss’ statement,, viewed by itself. Any reader of his testimony will have his attention arrested by apparent discrepancies. He testifies that when he purchased, and when he paid, he had no knowledge of Pool’s insolvency, or even of his embarrassment; yet,, when he came to pay the money, there was a degree of particularity — a desire to hedge it about with a “ cloud of witnesses” — that ill accords with a consciousness of a plain,, business transaction. Having, as Eoss pretends, full confinence in Pool’s ability to make him a good title, and in his-solvency, it is a matter of surprise, if not of suspicion, that he should have called witnesses to the payment of the money.. Another unexplained circumstance, is the singular connection, or apparent relation, which the lands in Saline county,. Missouri, bear to the alleged purchase of Eoss from Pool. Three witnesses, Eagland, Brooks and Pearce, give testimony of Eoss’ admissions, tending to show that the one tract of land was the consideration of the other. Mrs. Pool’s testimony is confirmative of this. This testimony, unrebutted, is calculated to raise a doubt of the bona fides of the payment of fifteen thousand dollars in money, as claimed by him. Shropshire, to whom Eoss conveyed the Missouri lands, and Penny, to whom title was afterwards made — not to mention James Pool — could doubtless explain this transaction ; and if, as Eoss contends, his conveyance of the Missouri land to Shropshire had no connection whatever with his purchase from Pool of the lands in controversy, it was due alike to his interest and his character that he should have taken their testimony. It was not done, and no excuse is offered why it was not done. Another fact should not be [609] overlooked. The testimony of the witness, Polk, goes very far to disprove Ross’ ability to pay the fifteen thousand dollars he claims to have paid. The objection to the manner in which this proof was made is not well taken.—Graham v. Lockhart, 8 Ala. 9, Pl. and Mer. Bank v. Borland, 5 Ala. 531. The opinion of the chancellor in this cause is a very carefully considered argument. He presents the strong points of the evidence, which tend to cast suspicion on the transaction • and there is a failure to explain, or break the force of those circumstances. We find nothing in this record which authorizes us to declare that the chancellor erred in his ruling on the facts.—Cummings v. McCullogh, 5 Ala. 324; Hamilton v. Blackwell, December term, 1877; Marshall v. Croom, at this term. Affirmed.