Kyle v. Slaughter

ANDEKSON, J. Tliat A. H. Slaughter executed and delivered to the plaintiffs’ mother, before her death, a deed to the property involved, there can be little or no doubt. Indeed, the defendant admits this fact in her evidence, but contends that said deed contained a reversionary clause, in case of the death of the first Mrs. Slaughter, the grantee, before the grantor. It is true this clause is testified to by the defendant, who is more largely interested than any one else; but she is contradicted by every witness who knew anything about the deed, some of whom are absolutely disinterested and are not shown to be even related to any of the parties. Kennedy, the draftsman and one of the subscribing witnesses, Avas positive that the deed did not contain the clause contended for by the defendant. Lockhart, the other subscribing Avitness, says he read it over twice and it contained no such clause. Mrs. Kyle testified that she had read the deed and it contained no such clause. True, Mrs. Kyle is interested in the suit; but her interest is not near so great as that of the defendant. We also have eAdclence by Holly and Mrs. Kyle that A. H. Slaughter set up no claim to the property after the death of his former Avife, except a life estate in same as her surviving husband. Again, the inquiry arises: If the deed contained the proviso claimed, Avliy did A. H. Slaughter, AAdio Avas the [112] sole beneficiary under said proviso, destroy the document upon executing the deed to his second wife? If the deed contained this clause, its preservation by A. H. Slaughter would have established beyond dispute his title to the property and his right to convey it to his second wife. S'ane and reasonable people do not, as a rule, destroy evidence favorable to the establishment of their own title. A party who destroys the evidence by Avhich his claim or title may be impeached thereby raises a strong presumption against the validity of his claim.— G-reenleaf on Evidence, §§ 31, 37; Thompson v. Thompson, 9 Ind. 323, 68 Am. Dec. 638; Jones v. Knauss, 31 N. J. Eq. 609; James v. Bion, 2 Sim. & Stu. Eng. 600. We fully recognize and sanction the often-repeated rule of this court: “The decision of the trial court, refusing to grant a new trial on the ground of insufficiency of the evidence, or that the verdict is contrary to the evidence, will not be reversed, unless, after allowing all reasonable presumptions in favor of its correctness, the preponderance of the evidence against the verdict is so decided as to clearly convince the court that it is wrong and unjust.” We think the great preponderance of evidence in this case is so contrary to the verdict as to clearly convince us that an injustice has been done the appellants, and that it is our imperative duty to reverse this cause because of the refusal of the trial court to grant a new trial. Reversed and remanded. Tyson, o. J., and Doavdell and McClellan, JJ., concur.