Powell v. Batson

Berkshire, President. The controversy in this case, I think, must turn mainly, on the validity of the paper-writing, filed with the appellees’ billas “exhibit No. 2.” It purports to be a receipt from the defendant Powell, to the complainant Aaron T. Batson, for all demands, and acknowledgment that he was to have back the 22J acres of land, which he had previously sold to Powell. It is clear, therefore, that if this paper is to be regarded as genuine, the appellee’s right to a partition of the whole tract of 67J acres, conveyed to the defendant and the female appellee by John Davidson, is made out, and consequently there would be no error in the decree complained of. If, however, the validity of the paper is not satisfactorily established, then the controversy would be narrowed to the difference between the 22J acres and a moiety of the entire tract of 67J acres. As the genuineness of the paper is denied by Powell, on oath, in his answer to the original bill, and afih’med by Batson, under oath, in his answer to the cross-bills, their testimony is thus neutralized, and the question of its validity must depend on the other testimony in the cause. How then does it stand on the independent testimony ? The signature of Powell to the paper is proven distinctly by four witnesses, viz.: "William H. Shields, Isaac A. Morris, Maxwell Davis and John C. Fleming. On the other hand it is disproved by two witnesses, Josephus Bailey and James B. Sinsell, while a number of other witnesses express [616] some doubts, but decline to speak positively, or with anything like certainty, as to the genuineness of Powell’s signature. Three of the witnesses, viz: Shields, Morris and Davis, were attempted to be discredited and impeached, and unless the effort was successful, I think the validity of the paper ought to be regarded as established. For if the testimony, especially of Shields and Morris, or either of them, is to be taken as true, it must, in my judgment, be conclusive of the question. Shields testifies that some time after the date of this paper he went, at the instance of Powell, to see Batson, to make some arrangement to cancel a land trade about the land in controversy, and to prevail on him to give up to Powell some paper which he, Batson, held for the lands. That Batson declined to do anything, and stated that “he intended to hold the landand that upon communicating to Powell what Batson said, the former said something about a deed, and stated that “if he had not destroyed it, he could still have held the land.” He further proves that he was sheriff of Taylor county for upwards of eight years from 1850, and that during that time, Batson generally paid the taxes on the land in controversy, and paid the larger part of such taxes, but that he would sometimes pay the one-half and leave Powell to pay the other half of said taxes. Morris proves that he was present when the paper was signed by Powell, at the time the settlement and arrangement was made between him and Batson, and that Powell at the same time agreed to destroy the deed that Batson and wife had previously made to him for the 22 J acres, and that this arrangement as to the destruction of the deed, was adopted at the suggestion of the witness, as it would save the cost of a conveyance, &c. The question now is: Were these witnesses, or either of them, successfully impeached? Without adverting to the testimony in detail, I am compelled, after a careful examination and analysis of it, to [617] conclude that tbe effort to do so was clearly unsuccessful. Their testimony, therefore, not being essentially impaired, as before seen, the validity of the paper in question is to be regarded as established. And so regarding it, renders it unnecessary to consider what the position of the parties would have been if it had been overthrown, and the controversy thereby reduced to the question of the extent of the original purchase by Powell. It is insisted by the appellant that, the court erred in affirming by its decree the genuineness of the paper in question, without first directing an issue as to its validity, to be tried at the bar by a jury. That the chancellor has a discretionary authority to direct, or to decline to direct, an issue to try any material fact put in issue by the pleadings in the cause, is not doubted, and the doctrine is well settled by the authorities. Such discretion, however, it is equally well established, is a sound or legal discretion, and its improper exercise, either in directing or declining to direct an issue, may be reviewed and corrected by the appellate court. Wise v. Lamb, 9 Grattan, 294; Mitterly, administrator, v. Hagan, 18 Grattan, 231. Whether the discretion exercised in any case falls within the definition of a sound discretion may be, and often is, a very difficult question to determine, and depends alone on the facts and circumstances of each case. In Wise v. Lamb, the ease was reversed, because an issue had been improperly directed, while in the case of Mitterly, administrator, v. Hagan, there was a reversal of the decree for the failure to direct one. In the former case the defence of usury was set up against the collection of certain bonds, and an issue to try that question was directed by the chancellor, upon which a verdict was rendered, affirming the usury and sustaining the de-fence. It was held, however, that the proofs in the cause furnished no sufficient grounds for directing such issue, and the case was accordingly reversed, the issue and the verdict thereon were set aside, the injunction dissolved and the bill [618] dismissed. Lee, J., in delivering the opinion of the court, after adverting to the testimony in detail, says: “ Now giving to this testimonyits fullest weight and widest latitudefor inference, it is impossible to say that it makes out the charge of usury contained iu the bill, or overthrows, or even shakes the positive, direct and express denial of that charge, and of the facts and elements in which the supposed usury was alleged to consist.” And again, “but it is well settled that a mistake in the exercise of the discretion of the court upon this subject, is just ground for appeal.” And after adverting to certain cases that would make it proper for an issue, he further observes: “ So where the evidence is conflicting, or there is contradictory evidence between persons of equal credit and equal means of information, and the evidence is .so equally balanced that it becomes doubtful which scale preponderates, an issue will be proper.” The proper criterion, therefore, (if any could be suggested,) by which to test the propriety or impropriety of such issues, I take to be this: that where in a given case the decree rendered is sustained with reasonable certainty by the facts and circumstances disclosed by the record, there would be no error, in omitting or refusing to direct an issue to try any material matters of fact put in issue by the pleadings. But if the correctness of the decree is made to depend on the existence or non-existence of such material facts, and the evidence and circumstances of the case are so equally balanced, as to «make their existence or non-existence doubtful, then it would be error to fail or refuse to direct an issue to be tried by a jury. It does not appear in the case under review, that either party demanded an issue, and, as in my judgment, the decree complained of was well justified by the evidence in the ■cause, it follows that there could be no error in omitting to direct an issue to try the validity of the paper-writing in question. The remaining error relied on. is, the refusal to continue and rehear the cause upon the affidavits filed in support of [619] the motion for such continuance and rehearing, upon the ground of after discovered testimony. It appears that the additional testimony discovered, consisted of one witness, whose evidence, it appears, would be cumulative only and in support of other witnesses, as to facts already testified to in the cause. I am of opinion, therefore, that no proper ground was shown for the continuance, and that the court did not err in overruling the motion. Upon the whole, I cannot see any error in the decree complained of, and think it ought to be affirmed, with costs and damages. The other judges concurred. Degree aeiirmed.