Comstock v. Smith

• Decision Date: 08 January 1873
• Citation: 26 Mich. 306
• Court: Michigan Supreme Court
• Parties: Charles H. Comstock, Administrator, etc., v. Medora E. Smith

26 Mich. 306

Charles H. Comstock, Administrator, etc., v. Medora E. Smith

Supreme Court of Michigan

January 8, 1873

Heard October 11, 1872; October 15, 1872.

Error to Lenawee circuit.

Judgment reversed, with costs, and a new trial ordered.

A. L Millard and C. I. Walker, for plaintiff in error.

Robinson & Brooks and Andrew Howell, for defendant in error.

OPINION

Graves J.

This controversy relates to the same purchase which gave rise to the litigation between these parties, reported in 20 Mich. 338; but the demand now in question is a different one. a

The "claim" advanced on this record was set up in the probate court as a contingent one, and was there rejected. The claimant, Mrs. Smith, appealed to the circuit court, and upon an issue made up in that court, and tried before a jury, a verdict was rendered establishing her right.

The case is now brought to this court by the administrator, who alleges numerous errors. It is believed, however, that many of the questions which were learnedly discussed by counsel, and which, by themselves, would require very serious attention, will be found to disappear when the exigencies of the case are fully understood.

In the probate court the claim was preferred by a petition, sworn to on the 15th of December, 1868. This petition set up a sale by Mrs. Smith, on the 25th of January, 1866, to decedent and one Darius C. Jackson, of certain oil land, an oil well thereon, and machinery, and some personal property, all in Canada, for seven thousand six hundred dollars as the purchase price, of which two thousand dollars was to be paid down; two thousand, in six, twelve, and eighteen months, secured by mortgage on the land; and the remaining three thousand six hundred dollars, to be paid "to one John Decow, the original owner of the said land and premises, and from whom the said Medora E. Smith purchased the same, by paying and taking up thirty-six different promissory notes of one hundred dollars each, made by the said Medora E. Smith and John N. Smith, her husband, jointly, and payable to the said John Decow."

The petition further stated that the property was conveyed pursuant to the agreement; that decedent and Jackson paid fifteen hundred dollars of the two thousand dollars required to be paid down; that they gave the mortgage for two thousand dollars, as agreed, and, during the lifetime of Comstock, paid thirteen of the Decow notes, and that nothing further had been paid.

The petition also stated that the Decow notes were all dated September 25, 1865, and gave the times for their maturing, from which it appeared that several, claimed to be unpaid, had fallen due, and that several others had not matured. It was not stated that the claim was founded upon any writing, and none was offered in evidence in the probate court.

In order to form an issue in the circuit court, the claimant filed a declaration containing special allegations, and the common money counts, but not averring an agreement in writing , and the plaintiff in error filed a plea of the general issue in the statutory form, and added thereto a special notice, in which he stated that he "would insist, and give in evidence under the general issue, that the contract in the declaration mentioned (if any such there was), was a contract for the sale of land, and that there was no note or memorandum thereof in writing, signed by decedent, or by either of the other parties to the contract, or by any person authorized."

It does not appear that the plaintiff in error, on or before pleading on his side to make up the issue, raised any objection that the cause of action, as represented in the declaration, differed from that set up in the probate court.

This preliminary view is believed to be sufficient for our present purpose.

In taking up the points to be examined, it will be most convenient to depart from the order in which they are placed in the printed record.

On the trial in the circuit court, the defendant in error based her claim exclusively upon a clause appearing in the deed made by herself and husband to decedent and Darius C. Jackson, and which reads as follows: "And the said parties of the third part shall have quiet possession of the said land, free from all incumbrances, with the exception of a mortgage thereon from the parties of the first and second parts to one John Decow, upon which there is due at this time, three thousand six hundred dollars, which sum is to be deducted from the consideration hereinbefore mentioned, and paid by the parties of the third part to the said mortgagee."

Several closely allied questions, relating to this deed, and especially to this clause, were raised by plaintiff in error, and among them there was one group of questions connected with an objection that the deed itself was never accepted by the decedent and Jackson, the grantees named in it; and another group of questions connected with an objection that the closing part of the clause just recited, and being that part of it which asserts that the three thousand six hundred dollars was to be deducted from the consideration and paid by Comstock and Jackson, was written over an erasure, and was an unwarranted alteration.

These questions can be more distinctly and satisfactorily disposed of, if the heads to which they belong are distinguished and examined separately, and in following this course the matters connected with the objection last mentioned, will be first considered. Those matters as exhibited by the record relate, first, to the action of the court in admitting the instrument to be read as evidence to the jury, and, second, to the charge and refusals respecting the disputed passage.

The deed was allowed to be read to the jury against an objection that the concluding paragraph of the clause before quoted, appeared to have been written on an erasure, and this objection is still urged. The other grounds of objection to the admissibility of the deed, so far as they are still insisted on and deserve attention, will be sufficiently noticed in another connection.

The objection now under consideration, proceeds upon the assumption that the alleged infirmity was apparent, that being so, it was incumbent upon the claimant primarily to give evidence to the court to remove a presumption which the law raised against the rectitude of the paper, before the instrument could become competent evidence, and that this preliminary proof was not adduced. It is not possible to say upon this record, that it was apparent that a portion of the clause was written upon an erasure, but conceding that it was, the objection is still susceptible of two answers: First, this objection did not relate to matters of mere incidental or formal proof, or to any distinction between primary and secondary evidence, but it implied that the court, under the guise of passing upon the admission of evidence, might, in substance, take the trial of a main fact from the jury and decide it upon a preliminary inquiry.

The authenticity of the special clause in the deed was a direct and vital issue of fact which the jury, under appropriate instructions, were entitled and required to decide according to their opinion of the evidence bearing upon it, and as the writing itself, as it actually appeared, was a very material and pertinent part of that evidence, the judge was not at liberty to exclude it upon any opinion of his own, either that it was spurious, or that evidence tendered to the court in explanation of unfavorable appearances, was inadequate, without taking for granted, or prejudging the very point in dispute, and invading the province of the jury.

And, in the second place, the defendant in error did actually adduce explanatory evidence to the court in advance of the admission of the paper to the jury. The witness, Fisher, was examined at great length before the deed was submitted, and he testified that he was one of the subscribing witnesses, that he drew the deed, and that the controverted clause was in his handwriting and was put in before execution. If it were admitted, therefore, that the suspected passage was only admissible to the jury after evidence to the court to explain away the ground of suspicion, it seems very manifest that the requirement on the subject, as construed by the authorities which sustain it, was fully complied with.

We are to consider next the rulings of the court in giving the law to the jury on this branch of the case, and in the outset, it will be observed, that while its acceptance by decedent and Jackson, was denied, there was still no dispute that the deed itself, as an instrument of conveyance, was duly signed and acknowledged by the claimant and her husband; and one phase of the controversy appears to have been whether, supposing the deed as a mere conveyance, to have been accepted, the disputed clause ever received the express or implied assent of decedent. The investigation of this question, as one not wholly excluded by a theory that the clause was inserted, either before the deed was accepted, or even before it was signed, gave rise to several minor questions looking to its solution, and the charges given in relation thereto, at the instance of the plaintiff in error, were certainly quite as favorable for him as the case permitted.

Passing these instructions, we reach the rulings complained of.

The plaintiff in error maintains that the court erred in refusing his requests, and in the charge given touching the burden of proof and the legal presumption raised on the appearance of the instrument. The requests so refused were the eighth and ninth of those preferred by the estate, and the charge given adopted the eighth request of the claimant, with a modification and addition.

It has been...