Orr v. Clark

The opinion of the court was delivered by Tyler, J. The case is this: The land in controversy was owned in fee by Alzina J. Whitcomb, who died intestate, December 15, 1874. Her husband, Austin S. Whitcomb, died May 14, 1887. Their only children and heirs were Alta J. Clark and Ella T. Orr, who, soon after their mother’s decease, executed between themselves a written instrument by which they agreed that their father, the said Whitcomb, should have the occupation and use of said land during his life and at his ■ decease the survivor of the'sisters should take the fee. Alta J. was the wife of defendant Clark and Ella T. was the wife of Horace J. Orr and the mother of the oratrix. The husbands joined in the execution of the agreement, which was signed, sealed, witnessed, acknowledged and left for safe keeping with one Randall, a jus — 143 — tice of the peace, who drew it up. Subsequently Mrs. Clark, with her sister’s knowledge and consent, took the instrument from .Randall’s possession and kept it herself until her death in December, 1883. Her sister died in February, 1886. After the death of his wife, defendant Clark admitted to Whit-comb that he had the written instrument and promised to deliver it to him, but he never did deliver it, and in his answer in this suit and at the trial before the master he denied all knowledge of its execution and existence. No one but the defendant has seen the instrument since the death of-Mrs. Clark. Whitcomb occupied the land until his death, and since that time it has been occupied by the oratrix, who is the sole heir of Mrs. Orr. The oratrix now claims title in fee to the land in the right of her mother, while defendant liulet claims title to an undivided half thereof by virtue of a deed from defendant Clark, who claimed title in the right of his wife. The master reports that he is unable to find what the language of the instrument was and whether or not it was sufficient in law, upon Alta’s decease, to convey her interest in the land to her sister; but he does find that the instrument was made with that intent and purpose on the part of both sisters, in the event that Ella survived Alta. It also appears that defendant Clark, if he has not destroyed the writing, now withholds it, having repeatedly admitted, since his wife’s decease, that it was in his possession. The oratrix now invokes the application of the maxim, Omnia jprcesumuntur contra sjpolialorem and cites, among other cases, Armory v. DeLamirie, 1 Stra. 505. In that case a person in a humble station in life, having found a jewel, took it to the shop of a goldsmith to inquire its value, who, having got the jewel into his possession under pretense of weighing it, took out the stone, and on the finder refusing to accept a small sum for it, returned him the empty socket. An action of trover having been brought to recover damages for the detention of the stone, the jury were directed that, unless the defendant produced the jewel and thereby showed it not to be of the finest water, they should presume the strongest against him and make — 144 — the value of the best jewel that would fit the socket the measure of their damages. This maxim has often been applied in cases where written instruments of evidence have been destroyed or suppressed. This not only raises a presumption that the evidence suppressed would, if produced, militate against the party suppressing it, but procures more ready admission to the evidence of the opposite side. 2 Best Ev. 412. “ If,” says Ld. Ch. Justice Holt, in 1 Ld. Raym. 731, “ a man destroys a thing that is designed to be evidence-against himself, a small matter will supply.” In Hunt v. Matthews, 1 Vern. 408, a widow, before her marriage with her second husband, assigned over the greater part of her estate to trustees, in trust for her children by her first husband. The husband suppressing the deed, was decreed to pay £800, the sum proved to have been mentioned in the deed as the value of the goods. See also, Wardour v. Berisford, 1 Vern. 452, and Dalston v. Coatsworth, 1 P. Wms. 731. In Rex v. the Countess of Arundell, Hob. 109, the king claimed title to land by an attainder of high treason. On its being shown that the deeds whereby the estate came to the party attainted were not extant, but were very strongly suspected to have been suppressed by some one under whom the defendant claimed, a decree was made that the crown should hold and enjoy the land until the defendant should produce the deeds and thecour.t thereupon take further consideration and order. Mr. Best seriously questions whether this maxim has not been carried too far and quotes Lord Eldon in Barker v. Ray, 2 Russ. 72, who said : * * * “ The jurisdiction of the court in matters of spoliation has gone a long way. * * * To say that if you once prove spoliation, you will take it for granted that the contents of the thing spoliated are what they have been alleged to be, may be, in a great many instances, going a great length.” In this case it is not necessary to go further than was held in Life & Fire Ins. Co. v. Mechanics Fire Ins. Co., 7 Wend. 31, “ that the refusal to produce books or papers upon notice given, — 145 — -does not warrant the presumption that if produced they would show the facts to be as alleged by the party giving notice; the only effect of such refusal is, that parol evidence of their contents may be given; and if such secondary evidence be imperfect, 'vague and uncertain as to dates, sums, etc., every intendment and presumption shall be against the party who might remove all doubt by producing the higher evidence. Some general evidence of such parts of their contents as are applicable to the case must first be given before any foundation is laid for any inference or intendment on account of their non-production.” Downing v. Plate, 90 Ill. 268, is also a case in point. It may fairly be presumed that, when a witness refuses to explain what he can explain, the explanation would be to his prejudice. This presumption will not alone suffice to establish the contents of the suppressed document, but may be considered in connection with secondary evidence. Therefore, if the defendants’ exceptions are not sustainable as to the admission and exclusion of evidence by the master, the oratrix is entitled to the relief prayed for. The testimony of the witness Brown was properly admitted. It did not give legal construction to the written instrument but merely stated its contents. As the instrument was not produced, it was competent for the oratrix to show by oral evidence the purpose for which the parties thereto said it was made and what they said it was about at the time of its execution. In this view the testimony of the witness Melissa Hulet was properly admitted as the best obtainable evidence of the contents of the paper. No rule of law excluded Horace J. Orr from testifying. His wile was not a party to this suit. He and defendant Clark were parties with their wives to the written agreement, but they are both alive and competent witnesses as to the contents of the agreement. Dawson v. Wait, 41 Vt. 626. The question propounded to the witness Orr was a proper one. It is true he began his answer improperly by saying he could — 146 — state the meaning of the paper, but what he in fact said was no-more than a recitation of its language. The testimony of Andrews as to the admissions of Whitcomb was properly excluded. Whitcomb occupied the land after his wife’s decease, with his daughters’ consent. He was a tenant by courtesy without their consent. What he supposed about the title while he was thus occupying could not give construction to the writing or affect the title of his daughters or of their legal representatives. Defendant Clark had given evidence relative to the contents of a letter written by the oratrix to him, and what she testified was in proper rebuttal of his evidence upon that subject. What she said about the paper seems to have been in explanation of what was partly brought out in her cross-examination. She did not state the contents of the paper, but merely said she was told by her mother that there was one: Defendant Hulet took his deed of the land March 10, 1888,, after the déath of the two sisters and after the termination of the life tenancy of their father; therefore the law of co-tenancy -seems to have no application to the case. The oratrix was then 'in actual possession of the land, and it was incumbent on the defendant to inquire as to the character of the title under which she was in such occupation. He was constructively charged with notice of all the facts that he might have learned by reasonable inquiry. Shaw v. Beebe, 35 Vt. 205; Canfield v. Hard, 58 Vt. 217. While a delivery is essential to the validity of a deed, it is not necessary that there should be an actual manual delivery. If it is so disposed of as to evince clearly the intention of the parties that it should take effect as a conveyance, it is a sufficient delivery. Conlan v. Grace, 36 Minn. 276 (30 N. W. 880); 3 Wash. Real Prop. 330. This writing was not in the usual form of a deed of conveyance. It was,. as the master finds, a writing declarative of an agreement made between Mrs. Clark and Mrs. Orr, that the sur — 147 — vivor of them should have the entire land in fee, and was framed for the purpose of carrying that agreement into effect. That agreement was never revoked, but stands as evidence of the wishes of the parties thereto in respect to this land, and it should have the effect of a conveyance. The delivery to Randall, in the circumstances disclosed, was sufficient. The pro forma decree is reversed and cause remanded under a mandate that the temporary injunction be made perpetual, and that the defendants make such conveyance of the premises in question to the oratrix as the Court of Chancery may adjudge necessary to carry out the terms and conditions of the written agreement. Rowell, J., being indisposed, did not sit.