Thompson v. Thompson

9 Ind. 323

Opinion

Gookins, J. —

This was an action to recover real estate. Both parties claimed, the property under James A. Thompson, deceased — William Thompson, the plaintiff, as purchaser, and Martha E. Thompson, the defendant, as Ms devisee. The judgment below was for the defendant.

The plaintiff claimed title under a deed alleged to have been made by the deceased, which was never recorded, and has been lost. One Moore testified that in 1839, he was residing with the deceased; that at Ms request he accompanied him to the house of a justice of the peace, residing some eight or ten miles off; that James A. Thompson ac knowledged before the justice a deed for the land in question to his brother, William Thompson; that it was a deed in fee simple, with warranty of title; that he read and witnessedit; that he could not remember the consideration expressed; that they returned home by way of Covington, the plaintiff’s place of residence, where the deed was delivered to him. He believed the name of the justice was Lewellyn. The witness did not describe the lands by their congressional subdivisions and numbers, but identified one eighty-acre tract as the home farm, and three others as the Shoafstall farm — the two farms lying about a mile apart.

The deceased lived on the home farm, which lay within about three-fourths of a mile of Covington.

The plaintiff deposed that the deed was lost; that he had, made diligent search for it, and it could not be found; and that he had neglected to have it recorded.

It was proved that a justice by the name of Leioellyn resided at the time in Wabash township, Fountain county, eight or ten miles from Covington, who was dead; that the justice and the recorder resided, at the same time, in Covington, who were still alive; and no reason was given why the deed was not acknowledged before one of the latter, instead of before justice Lewellyn.

Frequent declarations of the deceased were testified to, mostly by members of the family, to the effect that he had sold the lands to the plaintiff, who was to support the father and mother, and that when he got his pay, he would have no further interest in them.

The administrator of the estate of James A. Thompson deceased, testified that he found, in a pocket-book of the deceased, the following obligation, in the plaintiff’s handwriting:

“ May 7th, 1839. I promise to pay J. A. Thompson 3,300 dollars, when he gives me possession of the lands which he is occupying at this time. W. Thompson.

“ I further agree in the purchase of the lands to take care of father and mother, and maintain them as long as they live, from the time J. A. Thompson gives me possession of said lands. W. Thompson.”

The evidence of both parties showed that J. A. and W. Thompson came to Indiana and settled near Covington about 1826; that for many years they had been partners in a tannery on the home farm, in distilling, in merchandizing, and that they had erected together a warehouse. J. A. Thompson resided on the farm, and maintained his father and mother, until his death, in 1853. James owned two-thirds in the partnership, and William one-third interest.

The defendant was an illegitimate daughter of the deceased, he having never married. She lived with him until his death, and was a minor at the time of the trial. In Iris last sickness he made a will by which he devised his real estate to her, which he estimated to be worth 10,000 dollars. His personal property, which he estimated at the same, subject to certain specified apportionments, was .left to follow the law of descents.

It appeared in evidence that the deceased claimed the land in question as his own, until his death; that he was in the continued occupancy of it; that he built a house upon it worth some 400 or 500 dollars, and had laid the foundation and prepared the materials for another, at the time of his death; that he had planted an orchard; and that at all times since 1839, he had appeared to be the owner.

Evidence was given to show that immediately after the death of J. A. Thompson, the plaintiff took possession of the money he had on hand, amounting to about 44 dollars, a part of which he paid to hands for harvesting on the place. His confessions were also proved to the effect that some papers which he found, which he stated were of no value, he burnt, among which were receipts for taxes. One Kelly administered on the estate (no executor having been named in the will), at the plaintiff’s request. Kelly testified that the papers pertaining to the estate were delivered to him by the plaintiff; that at the time of so doing, he stated that his brother held a large note against him, which they searched for, but did not find; and that he afterwards found the note in the back part of an old pocket-book.

The plaintiff claimed that the estate was indebted to him over 5,000 dollars.

David Brier, who drew the will, testified that the deceased told him at that time that William was largely indebted to him, and seemed uneasy in consequence of the unsettled state of their mutual dealings.

The defendant gave in evidence, over the plaintiff’s objection, declarations made by I A. Thompson in 1846, when the plaintiff was not present, to the effect that he had bought William out, and that he owned all the property himself. Other declarations of the deceased, made at different times after the alleged conveyance to the plaintiff, to a similar effect, were given in evidence, over the plaintiff’s objection — to which he excepted. As some of the instructions given at the instance of the defendant, assumed that there might have been a surrender of the deed, or a reconveyance by William to James, this testimony may have had an important bearing upon that question.

We think its admission was erroneous. The general rule is well settled that the declarations of a vendor, made after his' conveyance, are not admissible in evidence to defeat it. Doe v. Moore, 4 Blackf. 445, and authorities there cited. It is true that the declarations of a party in possession, in derogation of his own title, may be given in evidence (Doe v. Evans, 8 Blackf. 322); and there are cases in which they are evidence to prove fraud in the vendor, after a pretended sale. But no fraud is alleged here, as against the grantor, nor would it avail the defense if it were alleged and proved. His conveyance would bind him and his devisee.

The plaintiff prayed the following instruction:

“If the jury believe that James A. Thompson, in the spring or summer of 1839, executed to William Thompson a deed for the land in dispute, in consideration of the execution to James by William of the note or agreement read in evidence; and that since the death of James, and before the commencement of this suit, William tendered to the administrator of the estate of James the amount of said note, and demanded possession of said lands; the jury must find for the plaintiff, unless they are satisfied that William Thompson has reconveyed said lands to James.”

The foregoing was the second of a number of instructions prayed by the plaintiff. The third refused, and the fourth refused as asked, and given as modified, will be considered in connection with it, without setting them forth at length. They raise the question, whether the grantee in a conveyance can, as between himself and the grantor, defeat his right to recover the property, by any other means than by a reconveyance. On this question we think the law was correctly given to the jury in a modification of the fourth instruction. It is as follows:

“ If the deceased got possession of the deed by delivery, or with the consent of William, with the view of surrendering the title conveyed by the deed, William cannot recover.”

His inability to recover would not, in such a case, be because lands can be conveyed by parol; but because he has voluntarily destroyed the evidence of his title. He cannot be permitted to allege that a deed is lost, and thereupon give parol evidence of its contents, when he has surrendered it to be cancelled. The deed is not lost in such a case.

We say nothing, at present, in reference to a recorded deed, where the record is lfiade, as under our statutes, of the same grade of evidence as the original. There would be this difference in the two cases: the parol proof might vary from the lost instrument, while the record would be a transcript of it. See Mason v. Grant, 21 Maine R. 160; Wilson v. Cassidy, 2 Ind. R. 562; Speer v. Speer, 7 id. 178; 1 Greenl. Ev. s. 265, note 3. We intentionally limit the rule, as here laid down, to cases between the parties to the deed, and those standing in the same relation to each other.

Other instructions prayed by the plaintiff, were refused; but as the same questions arise upon those which were given, they will not be separately noticed.

■ At the instance of the defendant, the Court instructed the jury that “a deed which contains certain conditions subsequently to be performed by the purchaser, is void if he should fail and refuse to perform those conditions.”

This instruction, though not strictly correct, should not, when applied to the evidence, be held erroneous. An estate upon condition subsequent, does not revert until entry for the condition broken. 4 Kent’s Comm. 122, et seq.—2 Black. Comm. 155, 165.—Cross v. Carson, 8 Blackf. 138.—Doe v. Cassiday, at the present term

Footnotes

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(1). But the evidence shows that J. A. Thompson remained in possession until his death, and that he left the defendant in possession likewise, as his devisee. He could not enter upon his own possession, for condition broken; and, although he might, perhaps, under the circumstances, have proceeded by action to divest the estate of the grantee, it would have been a useless act, which the law does not require. The defendant set up her title in opposition to that of the plaintiff in this action, and we are of the opinion that that was sufficient. She had an equity, at least, and that was all she needed to defend her possession. 2 R. S. p. 39, s. 56, sub-sec. 3. An instruction should be held right if it would produce the proper result upon the facts of the case, whether technically accurate or not. Shook v. The State, 6 Ind. R. 113.

The second instruction given, at the instance of the defendant, is as follows:

“ If the jury should believe, from the evidence in this case, that William Thompson purchased, and received a deed for, the land in controversy, from James A. Thompson, and that a part of the consideration of the deed was the support and maintenance by William of their father and mother, the deed is void if William failed to comply with that stipulation until the death of their father rendered its performance impossible by him.”

We cannot subscribe to this doctrine. The instruction is not perspicuously worded, and its precise import is not clear. It is objectionable for that reason. We understand, however, that it proposes to give a construction to the deed, by proof of the nature of a part of the consideration agreed to be given for the land; and this is not predicated of a consideration expressed in the deed alone, but would include one proved aliwnde. The consideration expressed is the least important part of the deed, and may be varied to almost any extent, by parol evidence. Rockhill v. Spraggs, at the present term (2). The estate created does not depend upon it, but upon the conditions and limitations contained in the instrument, descriptive of its quantity and duration, found generally in the premises, habendum, &e. 4 Kent’s Comm. 468. We do not pretend to say that a deed might not be so drawn as to annex a condition to the payment of the consideration; but we understand this instruction to include a consideration proved as well as one expressed. None of the cases referred to (Cross v. Carson, 8 Blackf. 138; Stone v. Huxford, id. 452; Hefner v. Yount, id. 455; or Leach v. Leach, 4 Ind. R. 628), are at variance with this view. In the latter case, the bond which contained the condition, and the deed, were construed together as one instrument. The estate was voidable, not void. Conditions subsequent are no favorites of the law. 4 Kent’s Comm. 129. Equity will often relieve against them, but will never, except in extreme cases, lend its aid to divest an estate for a breach of such condition. Id. 130. They are neither to be presumed nor proved aliunde — except, perhaps, to turn a deed absolute into a mortgage; and a close scrutiny of the authorities will show that even that is not an undoubted proposition.

The third instruction was erroneous. It was as follows:

“ A valid deed must, on its face, carry immediate possession. It is void, as’ a deed, if it stipulates for the surrender of possession at a future or uncertain time.”

It was an ancient rule of the common law that an estate of freehold could not be created to take effect in the future (2 Black. Comm. 165); and so it was held in Welsh v. Foster, 12 Mass. R. 93; Gale v. Coburn, 18 Pick. 397; and Brewer v. Hardy, 22 id. 376. Whether that rule would apply to the assurances now in use with us, it is not necessary to inquire. Mere possession is no essential part of the estate, and a stipulation to surrender it at a future day could not divest an estate created by other parts of the deed.

The fourth instruction given, supposes a conveyance by the deceased to the plaintiff; a parol repurchase by the vendor, and full payment of the purchase-money; and his continuance in possession until his death, making lasting and valuable improvements under the immediate notice of the plaintiff. The retransfer, under such circumstances, the jury were instructed, would not be within the statute of frauds.

This, the appellant insists was erroneous. Whether strictly correct or not, it would be no ground for reversing the judgment; because, upon the assumed state of facts, the plaintiff would not have been entitled to a verdict. See authorities, swpra. In Johnston v. Glancy, 4 Blackf. 94, it was held that the entering into possession pursuant to a parol purchase, would take the case out of the statute; but that a mere continuing in possession by one purchasing while thus in possession, was not sufficient. But in' the same case it was held that the purchaser would not be turned out until the purchase-money was repaid. See, also, Shirley v. Shirley, 7 Blackf. 452.

The following instruction was given at the instance of the defendant:

“ The consideration named in a deed is one of its most essential stipulations; and in any attempt before a Court to establish a lost deed, it is indispensable that the conside ration it-contained should be clearly proved.”

This was erroneous. Between the parties, a deed is good without a consideration. Doe v. Hurd, 7 Blackf. 510. A devisee is bound by the testator’s deed equally with himself.

The following instruction was given at the instance of the defendant:

“If the jury believe, from the evidence, that William Thompson, the plaintiff, burnt, or in any way destroyed, any of the papers of the deceased, James A. Thompson, without the knowledge and consent of those who were interested in the estate of said deceased, it devolves on him to show by proof other than his own statements, what those papers contained; and on his failure to do so, the law raises the presumption against him, that they were of the highest value to the defendant in this suit, and entitles her to a verdict.”

It is undoubtedly true, that a party who destroys the evidence by which his claim or title may be impeached, raises a strong presumption against the validity of his claim. And if the plaintiff destroyed papers of the estate, and especially receipts for taxes, which are important documents, involving, in many instances, the validity of a title, he committed a great wrong; but yet the presumption against him would not be of that conclusive character indicated by the instruction. The jury were told, in effect, that if the plaintiff destroyed any papers of the deceased, the defendant was entitled to their verdict. The law of nations, as recognized in continental Europe, under certain circumstances, raises a conclusive presumption against the spoliator of papers indicating the national character of a vessel (1 Kent’s Comm. 157, 158); but even that rule does not ordinarily prevail in England and the United States. 1 Greenl. Ev. s. 31.—The Pizarro, 2 Wheat. 242, note (e). This rule has no place in the Courts of common law. On proof of the existence of a paper, the testimony of the party who ought to have the custody of it touching its loss, with evidence of diligent search for it, is addressed to the Court. If its loss is established, he is allowed to go to the jury with evidence of its. contents. But his adversary may prove that he has withheld or destroyed it, and if he satisfactorily establish that point, every presumption will be indulged against him, in reference to its character. 2 Cow. and Hill’s Phil. Ev. 293.—3 id. 1193—Life and Fire Insurance Company v. Mechanics’ Fire Insurance Company, 7 Wend. 31. The rule is well stated by Sutherland, J., in the case last referred to.

The fifteenth instruction given was as follows:

“ The admissions made against himself by a party to a cause, pending the suit concerning the matters in controversy, are conclusive against him.”

We know no law for this instruction. Admissions made in Court, for the purposes of the trial are conclusive; but others proved to have been made during the pendency of the suit, are not only not conclusive, but generally weak evidence. They are obviously strong or weak, according to the circumstances under which they are testified to have been made. We except, of course, those admissions which are held conclusive on grounds of public policy. 1 Greenl. Ev. s. 210.

The foregoing, with some other instructions, were given .upon the prayer of the defendant. The Court, of its own motion, instructed the jury that “in making proof of the existence and contents of a deed which is lost, the party must prove its contents, which embrace the conditions and covenants it contains, the consideration and date of the deed, and its delivery. It is not sufficient to prove generally that it was a warranty deed, &c. He must substantially prove such parts of the deed as will enable the Court to say what the legal effect of the deed is, without relying upon the witnesses’ opinion as to what such legal effect is.”

This instruction imposed too great a burden upon the plaintiff. The jury were instructed among other things, that the date of the lost deed must be proved. A deed is good without a date. The will on which the defendant relies in this case has no date.

In regard to the mode of proving a lost instrument, Mr. Greenleaf says: “If the instrument is lost, the party is required to give some evidence that such a paper once existed — though slight evidence is sufficient for this purpose— and that a bona fide’and diligent search has been unsuccessfully made for it, in the place where it was most likely to be found, if the nature of the case admits of such proof; after which, his own affidavit is admissible to the fact of its loss. The evidence of loss is addressed to the Court, and not to the jury.” 1 Greenl. Ev. s. 558. Proof of its contents is necessarily addressed to the jury, but under the direction of the Court, that on the one hand, vague and uncertain recollections will not do (Id. note 1; Metcalf v. Van Benthuysen, 3 Comst. 424), and on the other, that a degree of precision which the memory never retains, is not required. The property conveyed, the estate created, the conditions annexed, the signing, sealing, and delivery, are required to be proved with reasonable certainty, by witnesses who can testify clearly to its tdnor and contents. Had the defendant intended, in this case, to object to the character of the proof, she should have done so at the proper time. All the evidence went to the jury without objection. Whether it was sufficient or not, it was their province to decide.

Z. Baird, 8. A. Huff, J. M. La Rue, 8. C. Willson, and J. E. McDonald, for the appellant (3). E. A. Harmegcm, for the appellee (4).

The following instruction was given:

“If the jury believe, from the evidence, that the deed was made in 1839, and that it was on the condition mentioned in the paper signed; and that ever since that time the land has been held, and sold, and improved by James, with the knowledge of William, by the erection of lasting and valuable improvements; William is estopped from setting up title to it in the hands of the devisee.”

This is an erroneous application of the doctrine of estoppel. Whatever presumptions may arise from the facts assumed, should have been left to the jury. But the devisee stands upon the title of the devisor. Whatever he knew about the state of the title, has the same effect as if known to her. A devisee takes as a purchaser, but not as a purchaser for a valuable consideration, and they only are affected by an estoppel in pais. Such estoppel is rendered, conclusive because others, ignorant of the facts, have acted upon the admissions of a party, expressed or implied from his conduct, in derogation of his own rights. 1 Greenl. Ev. s. 207.—Gatling v. Rodman, 6 Ind. R. 289.—Barnes v. McKay, 7 id. 301.

Per Curiam.

The judgment is reversed with costs. Cause remanded for a new trial.

Ante, 63.

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Ante, 30. See note to that case for authorities.