Dunson v. Heun

SOMERVILLE, J. Appellee filed the bill to quiet his title to a certain lot in the town of Floralla. Appellee, having proved his peaceable possession of the property, as well as the other material averments of the bill, was entitled to relief, unless appellant showed a better title in himself. — Kendrick v. Colyar, 143 Ala. 597, 42 South. 110. This appellant attempted to do by showing a deed to the lot executed to himself by the then owner, one J. E. Hughes, and wife, in October, 1897. Conformably to the statute (Code 1907, § 3374), appellee filed his affidavit that to the best of his knowledge and belief this deed ivas a forgery, thereby devolving on appellant as its proponent the burden of proving its due execution. Appellee claims title, through mesne conveyances, under a deed executed to his remote grantor by George [154] W. Dunson, the father of appellant, and offers evidence to show that the deed now purporting to be from Hughes to B. L. Dunson was in fact made to George W. Dunson, and that the deed was falsely altered after its delivery by the erasure of the latter’s name, and the substitution of B. L. Dunson’s name in its stead. Appellant, on the other hand, offered evidence tó show that, though the original draft of the deed was to George W. Dunson as grantee, the intention was to convey to B. L. Dunson, and that the error was corrected by substituting the name of the latter with the knowledge and by the authority of the grantor, Hughes, before the delivery of the deed. This was the only issue in the case, and the chancellor, holding that the evidence was equally balanced, and that, therefore, appellant had not met the burden of proof imposed upon him with respect to the execution of the deed offered by him, rendered a final decree in favor of appellee, granting the relief prayed for. We have narrowly scanned and weighed the evidence on both sides of the issue, but deem it inexpedient to discuss it at length, and accordingly present only in sparing outline those of its features and tendencies which seem to us persuasive of the conclusion we have reached. The deed in question was executed in 1897. In May 1899, G. W. Dunson and wife! executed to appellee’s remote grantor, H. R. Dugan, a warranty deed conveying the lot in question, and covenanting that they had a good right to sell and convey. In June, 1899, Dugan conveyed to one Straughn, in May, 1900, Straughn conveyed to one McDuffee, and in April, 1903, McDuffee conveyed to appellee. Not until three months after appellee received his deed from McDuffee was the Hughes-Dunson deed placed on record. These facts are not without significance, nor is G. W. Dunson’s ex [155] planation of liis deed, to Dugan at all satisfactory. J. E. Hughes, the grantor, his son J. T. Hughes, and H. Jordan, the two attesting witnesses, and J. F. Gilmer, the magistrate, have no recollection of any change being made in the name of the grantee after the deed was executed and acknowledged, and no recollection of B. L. Dunson’s name being mentioned as a party to the transaction. Although the recollection of these witnesses is not very positive, they are. as much so as could be expected after the lapse of 11 years. So far as appears, they are all entirely disinterested and the composite effect of their testimony is to very strongly negative the claims of appellant in regard to the alleged change in the deed. It is not likely that the grantor and the magistrate, the alleged chief actors in effecting the alteration, would entirely forget that circumstance, and both are reasonably certain that it did not occur. On the other hand, G. W. Dunson, J. W. Williams,- and J. W. Qualls, testifying as eyewitnesses to the transaction, describe in detail how Gilmer came out of the store and handed the deed 'to Dunson, who examined it, and stated that it was all right, except the deed should be to his son, and that it should be changed; and how Gilmer went into the store and proceeded to make the change with his own hand in the presence of J. E. Hughes. We have examined the narratives of these witnesses Avith critical care, and are not favorably impressed with their trustworthiness. It is to be borne in mind that the transaction in question occurred about 11 years prior to the time this testimony Avas given. It is true that the memory is often tenacious of details, and especially of some particular detail, of a transaction of remote or ancient date. This is more likely to be the case if the witness was personally interested at [156] the time, or if some special related occurrence has served to impress the details on his memory, or to keep them alive. But when, after 11 years have passed, the witness, though interested in the transaction, undertakes without the slightest hesitation to supply by positive affirmation a score of insignificant details, including every act and statement of some half dozen participants, his mnemonic achievement, while it may excite the wonder or admiration of the credulous, arouses in the judicial mind an instant suspicion of its sincerity and its verity. And when such a feat is performed by witnesses who were but casual observers, without the slightest interest in the transaction, and with no related occurrence to impress their minds, even great credulity Avill be overtaxed. Let any one select a similar transaction in which' he personally participated a decade, or even few years, ago, and attempt to reproduce its unimportant details in narrative form, or disconnectedly, and he will acknowledge the justice of our criticism of this testimony. The original deed is before us. In four different places “George W.” has been erased and “B. L.” inserted in its place. The three chief witnesses for appellant, named above, testified positively that these alterations were made by Gilmer. The face of the instrument disproves it. The merest tyro in the study and comparison of handwriting would know at a glance that these insertions are not made by the pen of Gilmer, who wrote the two certificates of acknowledgment. The question is not even debateable. Inconsistently with the testimony of these witnesses, appellant’s counsel argues that the grantor himself made the changes. A comparison of these letters with the grantor’s writing in the descriptive part of the deed clearly convinces us to the contrary. It must be conceded that the issue is somewhat [157] clouded, by tbe testimony of several of appellant’s witnesses to the effect that on several occasions ante litem the grantor stated either that he had or believed from what others said that he had made the deed to B. L. Dunson. He explains this, however, by saying that previous to making these statements G. W. Dunson had informed him that such was the case, and that he was 'merely accepting that statement without much thought about it. On a full view of the whole evidence, and a consideration of all the various aspects of the case, we cannot but agree with the conclusion of the chancellor that appellant, as respondent in the court below, has not met the burden of proof devolved on him by law, and that, by reason of that failure, the issue of fact presented to the court must be resolved in favor of the appellee. The decree of the chancellor is therefore affirmed. Affirmed. All the Justices concur.