Saunders v. Greever

7 S.E. 391, 85 Va. 252, 1888 Va. LEXIS 34

• Court: Supreme Court of Virginia
• Decided: August 16, 1888
• Status: Published

Opinion

Richardson, J.

(after stating the case in the language aforesaid), delivered the opinion of the court.

This is a controversy between two sisters and their only brother, the sole heirs and distributees of the deceased father, Hiram A. Greever, who died intestate on the 23d of May, 1882. The sole question for decision is one of fact, and is within a very narrow compass; yet so wide and unrestrained has been the range of investigation, that the question at issue has been buried almost out of sight by the introduction of a vast amount of irrelevant matter wholly foreign to the issue made by the pleadings in the cause. The result is that we have a record of over four hundred and thirty pages of printed matter, of which one hundred and forty-five pages are devoted to the single deposition of the defendant himself, while all the other witnesses, some, fifty in number, occupy two hundred and eight pages, leaving some seventy-odd pages to the lengthy and decidedly argumentative pleadings and exhibits therewith.

The sole question is, to whom does the property in dispute, that set forth in schedule “A” with the complainants’ bill, belong ? This being the question for decision, and it being a question of fact, and as the female appellants claim that this property belonged to their father, the intestate, at his death, and since to his estate, and that they, as heirs and distributees, are entitled to share it ratably with the appellee, the remaining heir and distributee, and as the latter does not claim an interest as distributee, but claims the whole subject in his own right as purchaser from his father, the intestate, in his life-time, it is obvious that the question must be solved and the right determined according as the evidence predominates in favor 'of the one party or the other.

In the first place, it is necessary to lop off and put out of view certain matters to which much of the evidence in the cause has been directed, and which have no necessary connection with or bearing upon the real question in issue.

1st. The defendant in his answer refers to a certain cattle contract existing between himself and his father for some years before the death of the latter. He says, “With regard to the cattle mentioned, there has never been any dispute about these. Your respondent was to furnish the cattle, and they were to be kept upon the place if they could be kept there; if pasture had to be hired, each party paid one half of this, and when the cattle were sold the profits, less what was paid on said pasture and costs of purchase, was to be equally divided between respondent and his father; and respondent always admitted this and never claimed any other interest out of the sales of these cattle.” In the depositions in the cause much is said about this cattle contract, which obviously has nothing to do with the question in hand ; and as no question was raised in the bill in respect thereto, and as the defendant in his answer admits that there was never any dispute about these partnership cattle, the subject may be dismissed as wholly foreign to the question to be decided.

2d. A large portion of the record is occupied with testimony respecting a farming contract said to have existed between the intestate and his son, James S. Greever, from about the year 1873 to intestate’s death. The bill tendered no issue nor made any reference to any such contract. The simple and only statement in the bill touching the relations existing between the father and son is, that James S. Greever lived with his father as a child and member of his family. The only statement in the answer of James S. Greever is that, for the last thirteen years prior to the death of his father, with the exception of the winter months for a part of that time, when James S. Greever was in the legislature, the said Hiram A. Greever and James S. Greever were engaged in farming and cattle-raising together. It is, then, perfectly clear that it is wholly immaterial whether such farming contract existed or not, and that, if it did exist, it is in no way pertinent to the issue made up in this cause. This matter, then, is foreign to and out of the case.

These matters out of the way, we recur to the question, does the property in dispute belong to the intestate’s estate, or is it the property of James S. Greever ? If the former, it must be distributed as claimed by the appellants, and if the latter, James S. Greever must be protected in his rights. Whether this property belonged to Hiram A. Greever at his death, and now belongs to his estate and is liable to distribution, or whether it was and is the property of James S. Greever in his own right, is a question to be determined by the weight of evidence.

Let us first enquire into the origin of James S. Greever’s claim, and into the character and sufficiency of the evidence relied on to sustain that claim. The property in dispute, as already stated, is set out in schedule “ A,” with complainants’ bill. It constitutes the bulk of' the personal property on the farm of Hiram A. Greever at the time of his death, and includes horses, cattle, sheep and hogs; all the farming implements of every description, and every vestige of household and kitchen furniture, not excepting the piano purchased by the intestate for the use of his daughters, the carpets on the floors, the pictures on the walls, the chairs, tables and table linen and furniture, nor even the bed upon which the intestate slept, nor the table from which he ate his meals, nor any the smallest article of household or kitchen furniture essential to his daily use and comfort.

James S. Greever claims to be the bona fide owner of this property by two purchases from his father in the year 1873, one of which was made in the early spring of that year, and embraced part of said property, and the other in the month of June of that year, embracing the residue thereof. He claims that the consideration moving from him was the relinquishment by him of all claims to moneys due by his father to him, the amount of which he does not pretend to state with accuracy, but thinks it was some $600 in gold and State bank notes which he let his father have in 1862, and some $200 or $250 since the war. He does not pretend to remember accurately either how much he gave thus for the property, how much of the $600 was gold and how much hank notes, or what the amount was which he let his father have subsequent to the war. He does not claim that he held or ever had any written evidence of the indebtedness aforesaid of his father to him; on the contrary, he says that in the numerous transactions between them, in which sometimes one and sometimes the other was debtor, no note, bond, or other written evidence was given or taken. He says that, in making the purchases of the property in question, no written list was made and no estimate made piece by piece of the property, but that in consideration of this property, acquired by two purchases, he relinquished all claim to the money which he let his father have during and after the war as aforesaid. He does not pretend to be able to state how much of the debt due him by his father was relinquished on account of the first of said purchases, nor how much on account of the second; hut simply insists that he relinquished his claim on his father as the result of the two purchases; nor did he contemplate making the second purchase at the time he made the first, hut, as he says, he hesitated about making the second purchase, and only made it at the earnest solicitation of his father. He executed no receipt to his father, and the latter executed no hill of sale to him, nor was any entry made of either transaction on the books, regularly kept, in which the transactions or, at least, the results of numerous settlements between them were entered.

He claims that he took possession of the property by virtue of his said two purchases, and has ever since held, owned and controlled the same as his own; that it was, with the knowledge and consent of his father, ever afterwards listed and assessed in his name, as shown by the assessor’s books, and that the tax-tickets therefor were made out against him, and that he has regularly paid the taxes with his own money.

Such, briefly outlined, is the claim of the appellee, James S. Greever. His sisters, the female appellants, utterly deny his claim; deny that he ever purchased or paid for the property as alleged, and insist that the property, though on the commissioner’s books aad assessed in the name of James S. Greever, was in reality, from the 'time of said alleged purchases until their father’s death, not the property of said James S. Greever, but was the property of their father, and that he had for all said period the unquestioned possession of same, and used, controlled and disposed of it at his pleasure; that all moneys paid by James S. Greever for taxes on said property, so assessed in his-name, were refunded to him by their father; that the property was assessed in the name of James S. Greever for a purpose known to them, but they do not disclose what that purpose was; that James S. Greever never, during their father’s life-time, pretended to have purchased or to own the property, but admitted to them immediately after their father’s death that he had paid nothing for it, and had no claim thereto. And they insist, further, that the property really and truly belongs to their father’s estate, and should be equally distributed between them and their brother, the said James S, Greever. Such, briefly stated, is their claim.

Whilst the sole question to be decided is, whether the property in dispute was, at the death of Hiram A. Greever, his property, or was it the property of James S. Greever, yet the case is one presenting some extraordinary features, such as are rarely met with even in the unhappy squabbles so frequent among heirs and distributees in respect to the distribution of their patrimony.

It is a controversy touching personal property of considerable value, yet of insignificant worth compared to the baneful influences too likely to flow from the disrúption of family ties, and from faith broken between sisters and brother, to which it has given rise. It is a controversy growing out of a claim asserted by the brother and founded on an alleged contract between him and his father in the life-time of the latter. We must treat the matter as the law treats it.

In discussing the relation of parent and child in its different phases, it is said in 1st Tuck. Com. p. 130: “It may not be improper here to add that contracts between parent and child are regarded in equity with a jealous eye.” Citing 1st Vez. 400; 2d Atk. 159, 254, 258; 1st P. Wms. 639, and 3d Br. C. 156. This doctrine is recognized in all the books, and is due to the relation which exists between parent and child. Hence, in all such cases, when the bonafides of the transaction is brought in question, it is requisite that the proof be clear, cogent and convincing.

In Poorman v. Kilgore, 26 Penn. St. 365 (67 Am. Dec. 425), we find the following instructive passage: “We may notice still another principle of law that is applied very beneficially to restrain the exceptions to the statute ” (meaning the statute of frauds), “and which is of special importance in this case, though its application is not peculiar to cases under this statute. We allude to the law of evidence that grows out of the family relation. It is so usual and natural for children to work for their parents, even after they arrive at age, that the law implies no contract in such cases. And it is so natural for parents to help their children by giving them the use of a farm or house, and then to call it theirs, that no gift or sale of the property can be inferred from such circumstances. It is so entirely usual to call certain books or utensils or rooms or houses by the names of the children who use them, that it is no evidence at all of their title as against their parents, but only a mode of distinguishing the rights which the parents have allotted to the children as against each other, and in subjection to their own paramount right. The very nature of the relation, therefore, requires the contracts between parents and children to be proved by a kind of evidence that is very different from that which may be sufficient between strangers. It must be direct, positive, express and unambiguous. The terms must be clearly defined, and all the acts necessary for its validity must have especial reference to it and nothing else ” ; citing Mehaffy v. Share, 2 Pa. 365; Hack v. Stewart, 8 Pa. St. 213; Bush v. Bush, 9 Id. 262; Lantz v. Frey, 14 Id. 201; Saunders v. Wagonseller, 19 Id. 251; Lantz v. Frey, 14 Id. 366; McCue v. Johnston, 25 Id. 308; Hugers v. Walker, 12 Id. 175. And the judge proceeds: “The importance of this rule is very apparent, for it requires hut a glance over the cases of this class to discover how sad has been the experience of the courts in family disputes growing out of the exceptions which have been allowed to this statute; and how many and how distressing must have been the ruptures of the closest ties of kindred that have been produced and perpetuated by the encouragement thus given to try the experiment of extracting legal obligations out of the acts of parental kindness.”

In the light of these principles, let us look to the evidences of ownership relied on to sustain the claim of James S. Greever under this alleged oral contract of purchase. It is unquestionably true, and it is so conceded on all hands, that the property was listed as early as 1873, and assessed and taxed as the property of James S. Greever, and had been so listed for taxation and put on the commissioner’s books by his direction, with the knowledge and assent of Hiram A. Greever. This appears by the deposition of the commissioner himself; but other than this there is nothing evincing that there had been a honafide sale of the property in dispute by the father to the son, as will be seen from the remaining testimony offered by the appellee.

M. B. Tate was introduced by the appellee. He was the owner of a debt of the Farmers Bank on L. H. Tate, B. F. Aker and Hiram A. Greever, the latter being a surety or endorser On this debt judgment was obtained, and execution thereon went into the hands of B, S. Bonham, sheriff of Smyth county as we shall presently see when considering the testimony of said sheriff; and we shall see, too, that this debt is the key that unlocks and opens to view much of the mystery connected with this alleged sale by father to son. Tate testifies that the sheriff (Bonham), after having an interview with Hiram A. Greever, and learning that his personal property was claimed by James S. Greever, came to him (Tate) and required an indemnifying bond, which he refused to give, without assigning any reason for his refusal; and he says that Bonham insisted on his giving the bond that he might sell the property on the Greever place. And said Tate also deposes that before he became the owner of said bank debt, he had a conversation with Hiram A. Greever about the transfer of his property, in which the latter said to him that he had no property, having turned it all over to his son, James. Tate says this conversation and statement occurred at his home when H. A. Greever was urging him to subscribe to the erection of a new railroad depot; and it appears that said Greever made the statement about having turned his property over to his son by way of excusing himself from subscribing for the erection of the depot; for Tate says, that he subscribed and pushed the paper to Colonel Greever and asked him to do likewise, but that he declined, making the statement above about turning his property over to his son, whereupon Tate replied, “ Colonel Greever, I never would ask a man to do a thing I would not do myself.”

Then the appellee introduced said Bonham, sheriff He makes this statement: “About the month of June, 1877, there was an execution in my hands, as sheriff of Smyth county, against L. H. Tate, B. F. Aker and H. A. Greever, in the name of the Farmers Bank, claimed by M. B. Tate, for principal, interest and costs, amounting to about $1,400. There being no personalty of Tate and Aker that I knew of, I went to see Colonel Greever about it. I saw him at the gate in front of his house, and showed him this execution and asked him what he proposed to do about it. He said that he did not have personal property that the debt could be made out of; that he had become involved in' money matters; that he had to raise quite a large sum of money, and that he had no other means of raising it except out of the stock on the place, and that his son, James, had some money, and that he had sold his stock on the place to James.” After some other questions and answers having no real connection with the question at issue, Bonham is asked if his father and Colonel Greever were not intimate friends, and if witness did not frequently hear Colonel Greever, in conversations with witness’ father, during the last years of said Greever’s life, say that he was managing the place where he lived for his son, James? This question was objected to, and properly objected to, for it not only plainly indicated the answer desired, but was certainly not pertinent to anything in issue. But the witness answered: “ Yes, sir; my father and Colonel Greever were very intimate friends. I know of his staying all night with my father frequently when I was there myself. I heard him tell my father that he had become embarrassed in money matters and had to sell his stock to James, and that he was now managing the farm for his son, James, and that he had no interest in the stock on the place.” This answer, too, was objected to as irrelevant, which it plainly is; and of just such irrelevant and impertinent matter is the record, in the main, made up, and all of which should have been suppressed by the trial court, it all having been objected to at the time.

Again, this witness (Bonham), on cross-examination, says: “ At the interview and conversation I had with Colonel Greever at his gate, spoken of in my deposition above, he said that he had no household property worth attempting to make a debt of that size out of; that he had arranged his household property among his children; he said there was a piano over there in the house that was not subject to his debts, that it belonged to Jennie and Rebecca.”

And further on in his cross-examination, Bonham says in substance that James S. Greever was present at a part of the conversation between him and Colonel Greever at the front gate of the latter; that after Colonel Greever got through with a part of his statement about selling his property to James, he said to Colonel Greever that property found in the possession of the debtor was prima facie his and subject to levy, and that the party claiming the property would have to set up a claim to it; that Colonel Greever then called his son, James, up, and he set up a claim to the property, by purchase from his father, in about the same words the Colonel did ; and that Colonel Greever said that he had sold his stock on the place to James to raise a certain sum of money that he had to raise; that James said the same thing in regard to the stock on the place ; that neither of them said anything to witness about any sale of the household property that he remembers; that nothing further was said except about the stock on the place, and that James said he had purchased all the stock on the place.. And then the witness was pressed, especially in the tenth question propounded to him on cross-examination, to tell what had occurred in other and subsequent conversations with Colonel Greever to that at his front gate, but nothing was elicited except a repetition of what he had already said; and his deposition was closed; but in a very, short time the witness demanded, as he had the right to do, to make a further statement or answer to said question No. 10, which being allowed, he said: “ Colonel H. A. Greever said to him that he would not do a thing of this sort upon his own liabilities, but that he did it for the purpose of fixing the debt on B. F. Aker and L. H. Tate; that their real estate was abundantly good for this debt; that he never proposed to repudiate one dollar of his contracts.”

This, except the deposition of James S. Greever himself, presently to be referred to, is all the evidence offered by him that can he said to give the least support to his claim; and the deposition of Bonham, especially his last and supplemental statement, when taken in connection with the other evidence on behalf of the appellee, goes very far towards lifting the curtain and exposing to open view the real nature of the transaction between father and son, which is the base-rock of the appellee’s claim, and strongly tends to demonstrate that the claim is not supported even by his own evidence, and that it has no real foundation either in fact or in law. But it may be asked, Why so? The answer is simple and easy. It is because James S. Greever claims all the property in dispute, as set out in schedule “A” with bill, which consists of all the valuable live stock on the place, all the numerous and valuable farming implements, all the household and kitchen furniture, and all other articles enumerated in said schedule, except two side saddles, the claim to which he has relinquished since filing his answer ; while Bonham, his principal witness, proves that in the interview at the front gate of Colonel Greever, he (Greever) only-stated that he had sold the stock on the place to his son, James, and that the latter, who was called up, claimed not to have bought anything more. It is because, in the same interview, Colonel Greever distinctly stated that he had become financially embarrassed, and had to raise a large sum of money; that his son had some money, and that to raise the money he had sold the stock—not stock, farming implements and household and kitchen furniture—to his son, James, thus clearly evincing that he had sold the stock only and for cash, and had received it from his said son at the time of the sale; while James S. Greever now claims not only the live stock, but all that is set forth in schedule “A,” and that the consideration for the purchase was not cash paid, but the relinquishment of all claim to an old debt due by his father to him, the amount of which debt he does not pretend to remember or state with accuracy. And yet we find (by Bonham’s statement) James S. Greever standing by and claiming, in June, 1877, four years after the pretended purchases of 1873, only that he had purchased the stock, meaning, of course, the live stock on the place; for Bonham states that Colonel Greever only claimed to have sold the stock, and that James S. Greever, when called up, stated his purchase in about the same words it had been stated by Colonel Greever. It is because while Tate, the owner of the bank debt, and Bonham disagree as to whether there was any reason assigned for declining to give the indemnifying bond—the former saying that he declined without giving any reason, while the latter says that Tate gave as the reason that the real estate of the principal debtor made his debt amply secure—they do agree in the more important particular that Bonham, the sheriff, insisted that Tate should, give the indemnifying bond, thus evincing that the sheriff, at least, was well satisfied that there had been no real sale, even of the live stock, by the father to the son ; and because the testimony of Tate does not prove that Hiram A. Greever admitted that he had sold to James S. Greever the property claimed by the latter, or any property whatever, but only that Colonel Greever said he had turned all Ms property over to his son, James, which would embrace both real and personal estate, and which by no means amounts to clear, strong and express proof of the claim asserted by James S. Greever, and nothing else.

And finally, it is because the evidence relied on by James S. Greever is uncertain and varient as to what it tends to prove, and so far from being direct, positive, express and unambiguous, it is vague, uncertain and unreliable, and fails to clearly define the time, terms, or consideration of the contract of bargain and sale it is intended to uphold. And the deposition of E. S. Bonham, especially in his Cross-examination, shows beyond all cavil that he, after his interview with Colonel Greever at the front gate of the latter in June, 18TY, had unquestionable information to the effect that there had been no sale of the property in question by Colonel Greever to his son, James; and this-is made clear beyond dispute by the supplemental answer of this witness to the tenth question on his cross-examination, whereby, though with evident reluctance, he discloses the admission to him by Colonel Greever that this property arrangement between him and his son was only intended to shield his property from sale to satisfy said debt, Colonel Greever saying he would not do such a thing as to his own liabilities, and that he did it for the purpose of making the real estate of the principal debtor discharge the debt, and that he would never repudiate one dollar of his own contracts.

There is no such thing as escaping the damaging effect of Bonham’s disclosure—damaging not to him or to the general character of his statements, but to the claim of James S. Greever, which he was introduced to uphold. It' cannot he true, as seems to have been supposed by the judge of the circuit court, that Colonel Greever made this admission to Bonham, as sheriff, execution in hand, at the interview at Colonel Greever’s front gate, in June, 1877, for if this was so, the fact would indeed be damaging to Bonham, and he could not be excused for going away, execution in hand, and unlevied, in the face of the debtor’s admission that he had not sold the property to his son. It is perfectly apparent that Colonel Greever’s admission was not made at that interview, hut later, and, perhaps, long after the execution had been returned l<no property,” etc.; for the cross-examination of Bonham shows that he was pressed for information subsequently obtained; and in the absence of anything to suggest a different conclusion, it must be presumed to be as unlikely that Bonham, as sheriff, would have been guilty of such flagrant neglect of duty, as that Colonel Greever would have made the admission to him when he first called on him, execution in hand.

A mere glance at the evidence of the appellee, thus far considered, is sufficient to show the weakness of his claim, if not, indeed, sufficient to entirely overthrow it. The question, and only question, being one of ownership, it must be conceded that upon the bill and answer alone, the case would be with the appellee. It must also be conceded that the fact of the transfer of the property on the commissioner’s books from the name of Colonel Greever to that of James ÍS. Greever, by the direction of the latter, with the knowledge and sanction of the former, and its so continuing until the death of Colonel Greever, presents a prima facie case of ownership by James S. Greever, which must be overcome by competent and sufficient evidence in order to overthrow the prima facie cáse thus made in his favor. But the case is far from resting on the bill and answer alone, or on the presumptive title in him by reason of the property being on the commissioner’s books as aforesaid. It has already been shown that the evidence, thus far considered, so far from sustaining, greatly weakens, if it does not entirely destroy, the appellee’s claim. And it is difficult to perceive upon what ground that claim can be upheld in the face of the facts deposed to by it. S. Bonham, the principal witness introduced by the appellee, and where no effort was made in the court below to contradict or discredit him.

But James S. G-reever gives his own deposition, though his father, the other party to the alleged contract is dead. He was objected to as an incompetent witness, but the court below overruled the objection and received his evidence. This question will be deferred for the present, so as to consider his testimony in connection with that opposed to him. This we do, not because we deem him a competent witness, nor because, conceding his competency, his testimony is in all respects admissible; for the great bulk of it is as to the declarations of his father and others, and about matters wholly irrelevant and immaterial, for which numerous objections were endorsed, and all of which, so objected to, should have been suppressed by the court below. But it was not done, and we will proceed first to examine his testimony in connection with that on the part of the appellants, and to show that his own deposition weakens rather than strengthens his case.

The female appellants, Mrs. Saunders and Mrs. Perkins, both gave their depositions in the cause, and both of them testify positively that their brother, James S. G-reever, after the death of their father, told them that he had paid nothing for this property and that he had no claim to it. James S. G-reever denies making this statement, and admitting that he had repeated conversations with them, separate and together, proceeds to state what he did say, his statement being entirely different from anything they had testified to. They were called in rebuttal, and they each deny his statements, and emphatically reiterate their former statements. Here, then, we have two witnesses against one.

They both, in their examination-in-chief, state positively that they never heard their brother claim, that he had purchased the property until after he had qualified as administrator, and that he so qualified without their knowledge or consent. In his deposition he denies their statements, and in respect to the first of them deposes in this language: “ I mean to say I heard my father tell them, that is the girls, Mrs. Saunders and Mrs. Perkins, in his life-time, that he had sold this property to me, or that I had bought it, and I mean to say that after the purchases and transfer of this property they were in hearing when my father and myself were talking in regard to it; my recollection is that I heard him tell the girls so, not only about the time of purchase, but afterwards.” They in rebuttal deny ever having heard any such conversation between their father and brother, deny that either told them of any such sale and purchase ; and they repeat their former statements and say that they never heard their father say he had sold the property, and that he always claimed it as his own and controlled it accordingly. Here again is the positive testimony of two witnesses against one.x

They, the two sisters, in their examination-in-chief, state positively that their brother, James S. Greever, agreed with them, after their father’s death, to divide this property, as well as the balance of the estate, equally between the three. James S. Greever, in his deposition, says that he did agree to divide this property with them upon the condition that they would agree to divide the real estate as proposed by him, and upon the further condition that they refund to him the debt he had relinquished on his father, with interest. They in rebuttal deny this statement and again reiterate their former statements. And they say: It was immediately after the death of their father that their brother agreed to divide this property, and that the agreement was subject to no condition, and they say the agreement was this: “ General Greever was to take charge of the property and manage it as though his father had not died, gather the crops, etc. At the end of the year all was to be equally divided.”

Again, James S. Greever deposes: “ I remember distinctly saying, after my father’s death, to my sisters, that I owned more horses than I had need for, and that I then thought of disposing of some. I also told them that my father, just a short time before his death, had said to me that he thought that I could very well get along with fewer horses, and advised me to sell some. 1 mean my father advised me to sell some of my horses.” In rebuttal they testify that they were not present and know nothing of such conversation, and that they never knew that he owned any but two horses, the same about which they spoke in their examination-in-chief.

About this matter, Mrs. Saunders, in her second deposition, speaks fully and clearly. She says: “My brother is mistaken. •I never heard my father say that he had sold the property to my brother. It was recognized as my father’s property; he always owned and controlled it as long as he lived. I never heard any conversations as detailed. I never heard my brother claim this property till long after my father’s death. My brother is mistaken; the property when spoken of was always recognized as my father’s, and my brother always recognized it as my father’s property, with the exception of his own individual property, as heretofore mentioned in my deposition. I mean I never heard of my brother claiming this property until some time after my father’s death. He said then that he might claim it, as it was on the commissioner’s books, but that he would not do it, as it would not he right; that he had not bought it nor paid anything for it. I mean to say that this conversation about not claiming the property was immediately after my father’s death, and that it was some time after his death when he did claim it.”

Now, looking at the deposition of James S. Greever in the light of the facts deposed to by his two sisters, and in the light of the admission made by Oolonel Greever to R. S. Bonham, as testified to by the latter, how is it possible, when we apply the law to the facts, to reach any other conclusion than that the appellee’s case is not strengthened by his own deposition; that whatever may have been the object in putting the property in dispute on the commissioner’s books in the name of James S. Greever, it was not the result of a bona fide sale to him by his father, Hiram A. Greever, and' that it conferred no title upon James S. Greever; that it belongs not to James S. Greever, but to the estate of his deceased father, and was the property of the father during all the time it remained on the commissioner’s books in the name of the son, and is now part of his estate and distributable equally between the two sisters and the brother.

Touching the right of the sisters to share in the distribution of this property, so conclusively established by an abundance of competent evidence, there is one other circumstance that is powerfully corroborative not only of their testimony, but of the justness of their claim We allude to the written agreement, already set out, of May 21th, 1882, only four days after the death of the intestate, which was signed by all the parties.

This paper evinces the utmost confidence reposed by the sisters and their husbands in the brother, James S. Greever. The father had died in the midst of the cropping season, after having made contracts and engagements with reference to the current year; and it was thought best for the interests of all the distributees to continue the farming operations for the year under the management of their trusted brother, James S. Greever, who was one of the distributees, equally interested and more familiar with the decedent’s plans for the year than any of the others. Hence the agreement, after setting out the fact that by the death of Hiram A. Greever the two sisters and brother are the joint owners of all the intestate’s estate, real and personal, proceeds to confer large and liberal powers upon the brother for the then current year. It provided that James S. Greever should, during that year, and longer if it should be deemed necessary, have “ the entire management and control of all this property as he has had control of it heretofore, to manage and attend to as he may deem best for the joint interest of himself and his two sisters,” and with full authority for that purpose to make any sales or purchases of personal property that he might think advisable and deem promotive of the interest of all.

And, in conclusion, it is expressly stipulated that as James S. Greever’s whole time will necessarily be employed in the performance of this engagement, to the exclusion of all business other than to manage this property, he should have such compensation therefor, out of the joint property, as the three persons named in the agreement should say he is entitled to.

It is difficult to conceive how this agreement could be held to refer to anything other'or less than all the personal property on the Greever lands, except the few articles before referred to and conceded to be the property of James S. Greever. It .will be observed that nothing is excepted, and that for the management of all this joint property, James S. Greever is to be compensated, he devoting his entire time thereto, and to manage it “ as he has managed it heretofore.” How directly does this language comport with the testimony of the two sisters that it was their father’s property, and that their brother lived with their father as a child and member of his family and used or controlled the property as their father’s and subject to his orders and supervision. And how exactly does the language, “ as he has managed it heretofore,” agree, in its general bearing, with the direct and positive testimony of the two sisters, that their brother, after the death of their father, and just preceding the written agreement under consideration, admitted to them that this property was not his ; that he had paid nothing for it and had no claim to it.

Again, without the property in dispute, or other property of the kind, it was impossible to continue the farming operations for even one day. Why did not James 8. Greever, if this property was his, when he was so carefully stipulating for compensation for his personal services, stipulate also for compensation for the indispensable use of this large and valuable personal property, without which the crops could not be made and saved. Is it conceivable that he could or' would have overlooked so important a matter ? Will it be said that he left this large and important matter to his sisters.? Then why, and upon what principle, did he stipulate for the minor and leave the major to take care of itself? Looking to this written agreement in the light of the other evidence and all the surrounding circumstances, can its peculiar phraseology be accounted for or reconciled with any other theory than that the property in question was not his, he having not paid anything for it and having no claim thereto, as admitted to his sisters immediately after the death of his father ? We think not.

Yet again; when we look to the property appraised (as shown by James S. Greever) and sold as all the personal property belonging to the estate, we find it consists of comparatively very little except grain and hay and the half interest in the lot of yearling cattle. What was it, then, to which James S. Greever was to devote all his time ? Was it to sell and buy in the interest of all the joint owners, and for which he so carefully stipulated for compensation? It could have been nothing else than the property now claimed by him as his own, nor can the language of the agreement be made to apply to anything else. From the language of the instrument, and the surrounding circumstances, the only rational conclusion is, that James S. Greever, though the property was on the commissioner’s books in his name, from 1813 until his father’s death, never purchased it, never paid anything for it, did not own or claim it until long after his father’s death and after the agreement of May 2*7th, 1882, and cannot now claim it. There is in this written agreement everything in support of the claim of the sisters—nothing that tends in the remotest degree to uphold that of the brother.

As to the question of ownership, as evinced by Colonel Greever’s uniform and unquestioned possession and control of the property in dispute, the circumstantial evidence is overwhelmingly that he, and not his son, was the true owner. More than a score and a half of witnesses, consisting of members of the family, neighbors and friends, merchants, family physician, wagonmaker, shoemaker, blacksmiths, stock buyers and employees on or about the farm, depose to a great number of facts and circumstances utterly inconsistent with any other idea than that Colonel Greever not only possessed and owned this property, but, without restraint or hindrance, exercised absolute dominion over the same, disposing of it as to him seemed best. He, in the presence and with the knowledge of his son, sold horses and took the bond payable to himself, and, when the bond became due, by his son, demanded and received the money as his. He sold another horse and took the pay in threshing grain. He bought blooded bulls to serve his cows, bred his mares to horses of his own choosing, sold sheep and wool from his flock, bartered wool for jeans and grain sacks to be used on his farm, and was careful to mark the new grain sacks with his own initials.

These, and similar acts of ownership, were continuously exercised by Colonel Greever from 1873, the time of the alleged purchases by James S. Greever, down to the time of his death, in 1882. During all that period not one act is proved indicating that this property belonged to James S. Greever, save and except the hare fact that it was on the commissioner's books in his name; nor is a single person found who ever heard that he claimed it, except R. S. Bonham, and that matter has already been sufficiently disposed of. Then, if we .leave out of view the direct and positive testimony of the female appellants as to James S. Greever’s admission to them that he had paid nothing for the property and had no claim thereto, and the coinciding admission of Colonel Greever to Bonham, and look alone to the other evidence, as stated above, it is ample to overturn the claim of James S. Greever and establish that of his sisters, the female appellants. In fact, no just conception of the facts and law of* the case will permit the rejection of their claim. So clear, strong and cogent is the presumptive evidence of ownership by Colonel Greever that it, independently of the direct and positive evidence, is all sufficient for the purposes of the appellants. In discussing the subject of presumptive evidence, Mr. Greenleaf says: “So, also, as men generally own the personal property they possess, proof of possession is presumptive proof of ownership.” 1 Greenl. on Ev. § 34. The material facts and circumstances directly testified to in this case by an unusually large number of witnesses, clearly evince not only that Colonel Greever had the unquestioned possession and control of this property, but that he, as such owner, continually exercised absolute dominion over it.

There is yet other circumstantial evidence strongly opposed to the claim of James S. Greever. His father, Hiram A. Greever, was a painstaking, cautious and prudent man. He kept regular books of account, in which he charged himself with what he owed and credited himself with what he paid. By these books he settled with merchants, mechanics, laborers and others, and it was rare that his books did not prove accurate to a cent. On these books there is no entry of the indebtedness of father to son, which the latter claims was relinquished by him in consideration of the property here in dispute, though the books of the father do contain entries as to frequent transactions and settlements between him and this son. To break the force of this fact, James S. Greever goes far back in his father’s life and in his own recollection, and recounts a number of important business transactions had by his father which are not mentioned or entered on the books. And in the long list of transactions referred to, which are entered on the books, he mentions two that weigh heavily against him. 1st. He refers to the fact that many years before his father’s death he, James S. Greever, got a neighbor, Mr. Seabright, who was going to Baltimore, to buy him a hat; that Seabright.purchased and brought the hat to him, which he offered to pay for, but Seabright said no ; I have, or will have, some transactions with your father, and I will settle it with him ; that in subsequent dealings with Seabright his father paid for the hat; that some time afterwards, on looking over the hooks, he discovered that his father had not charged him with the price of the hat, and that he called his father’s attention to the omission; that his father said, “I intended the hat as a present to you” ; that he (James S. Greever) said, if you don’t charge it, I will; and that his father still refusing, he went to the book and charged himself with the hat. This certainly looks like father and son dealt with each other on strictly business principles. 2d. In his deposition, James S. Greever refers to a settlement between him and his father, in October or November, 1865, by which he fell in debt to his father, in the sum of $650, which sum was charged to James S. Greever on his father’s hooks. Now, the major part of the old debt (some $800), which James S. Greever said he let his father have, was furnished, he says, in 1862, or about- that time. Why did he not have the $650, in which he fell in debt to his father only three years later, credited on his father’s indebtedness to him? Why submit to be charged by his father, upon settlement in 1865, with $650, when, according to his claim now, his father was indebted to him? These things are inexplicable except upon the theory, supported by the evidence in this case, that the father was not indebted to the son.

We have considered the case as if James S. Greever was a competent witness, he having been so considered and treated in the court below. It only remains to consider whether he was a competent witness, his father, the other party to the transaction, which is the subject of investigation, being dead. If competent at all it is by reason of the language contained in the 22d section of ch. 172, Code 1873, as amended and re-enacted by ch. 256, Acts 1876-7, p. 265. In the act as amended, after enumerating the cases in which the common law rule remains unaltered, the following language occurs; “ and when one of the original parties to the contract, or other transaction, which is the subject of investigation, is dead, or insane, or incompetent to testify by reason of infancy or any other legal cause, the other party shall not be permitted to testify in his own favor, or in favor of any other party having an interest adverse to that of the party so incapable of testifying, unless he shall be first called to testify on behalf of such last mentioned party, or unless some person having an interest adverse to that of the party so incapable of testifying shall have previously testified to some fact occurring before such inability accrued,” etc.

It is plain that James S. Greever was incompetent to testify in his own behalf, and that the court below erred in overruling the objection to his competency and in receiving his deposition. Of course he was incompetent at common law. Nothing in Code 1873, ch. 177, §§ 21 and 22, as amended by the act above quoted from, alters the common law rule in such case. His father, one party to the transaction under investigation, being dead and incapable of testifying, the son, who is the other party to that transaction, is also incapable under section 22, as neither of the several conditions whereupon he might have become capable exist here. That is, he was not called on to testify in behalf of the other party, who was dead, and no person having an interest adverse to that of that other party had testifie-d to any fact that occurred before that party became incapable by death, it being perfectly clear that the sisters of James S. Greever, the living party to the transaction under investigation, have no interest adverse to their father, the other and dead party.

But it has been shown that, with or without his own deposition, James S. Greever has no case. If, as is barely possible, he does not get from his father’s estate all that he thinks himself entitled to, he can only attribute his failure to a singular neglect to protect himself by that prudent caution and foresight which, as a rule, he is proved to have exercised in his ordinary business transactions. But it is not for this court to indulge in speculations as to possibilities or even probabilities. We can only deliver the conclusions and result which flow from the law and the facts, deeply regretting the bitterness of strife to which this unfortunate family difference has given rise. We are clearly of opinion that the decree of the circuit court is erroneous in every particular, and that it must be reversed and annulled, and the cause remanded with instructions for such further proceedings as may be necessary to a final decree in the cause.

Decree reversed.