D Al. v. Pitzer

• Decision Date: 31 January 1869
• Court: West Virginia Supreme Court
• Parties: Rop.ert K. Robinson d al. v. John W. Pitzer, use, &c

3 W.Va. 335

Rop.ert K. Robinson d al.

v.John W. Pitzer, use, &c

Supreme Court of Appeals of West Virginia.

January Term, 1869.

1. A witness was interrogated as to whether he had a conversation with a certain party, in the spring or summer of a certain year, at a certain place in reference to the execution of a certain deed from himself to another party, and replied that he did not remember any such conversation. It was held that there was no sufficient ground laid for the admission of the statements of the witness to contradict him and impeach his credit.

'2. The statements of a vendor made after a sale and conveyance of realty and personalty, and during the continuance in possession of the vendor as agent and manager of the vendee, are not evidence in chief either to disprove the purchaser's title or to establish fraud in the sale, when the other evidence in the cause failed to involve the transaction between the parties in such doubt or uncertainty or raise a reasonable apprehension of collusion, as would warrant a resort to the statements of the vendor after he had parted with the property, though holding a possession inconsistent with the change of ownership.

3. There is no error in permitting the record of a deed to go in evidence,

where the original is in possession of the party offering such record, without accounting for the original.

4. A deed bearing the following endorsement is properly admitted to record:

"Recorder's Office, Martinsburg, West Virginia, February 17th, 1809. This deed of bargain and sale from Enoch G. Hedges to John W. Hedges was acknowledged in the Recorder's office by the party grantor, and admitted to record. Teste, S. Garrard, R. B. Co. per J. E. Hite, Dept. R. B. Co."

It is not error to admit evidence of the intention of the parties to a deed that the purchaser should have the growing crop, that evidence being in harmony with the deed.

45. Though it is irregular, after the plaintiff has closed his evidence, and after the defendant has begun the delivery of his, to offer a deed in evidence, where the existence of such deed has been proven, without having reserved the privilege of doing so, yet the propriety of doing so is a matter depending upon the circumstances of the case at the time, to be judged of by the court; and there was nothing in the record of this case to show that the action of the court was not justified by the circumstances transpiring during the trial.

7. Though it is not necessary to stop the progress of a trial to prepare a bill of exceptions, yet at least the point made should be saved before the jury retires, and the bill may be then prepared and signed afterwards; but when exception is taken and the progress of the trial stopped for the purpose, and the bill is then prepared and signed, the parties may well rely on the case thus made by the record and shape their course accordingly. In such case it would not be error in the court after the verdict had been rendered, to refuse to amend the bill of exceptions, notwithstanding in general where the exception has been taken before the jury retired but the bill not drawn up and signed till after the verdict, the court may correct the bill to conform to the truth.

8. A party to a suit may be admitted as a witness when there has been a verdict, but no judgment, before the passage of the act of February 7, 1808, permitting parties to testify on their own behalf, in a trial had subsequently thereto.

John W. Hedges brought suit in the name of the sheriff of Berkeley county, on an indemnifying bond, against Robert K. Robinson and W. H. Mong, his surety, to October rules, 1866. The bond was given in pursuance of the levy of an execution in favor of Robinson against Enoch G. Hedges, on property claimed by John W. Hedges. The defendant pleaded conditions performed.

At the November term, 1867, a trial was had and a verdict rendered for the defendant. The plaintiff moved the court to set the verdict aside and grant a new trial, which motion was granted.

During this trial the plaintiff took one bill of exceptions and the defendant three.

The plaintiff's exception was for the following cause:

Enoch G. Hedges had been introduced to prove that the property levied on was the property of the plaintiff, and upon cross examination was asked if he "had a conversation in the spring or summer of 1866 with James W". Robinson, in the recorder's office, iu reference to the execution of the deed from yourself to the plaintiff," to which the witness replied that he did not remember having any such conversation with James W. Robinson at the time and place stated. The defendant alleging that this was the foundadation for the introduction of impeaching testimony, introduced the testimony of James W. Robinson, as follows: that lato in the spring or summer of 1866, I had a conversation with Enoch G. Hedges, in the ante-room of the recorder's office of Berkeley county, about the sale and conveyaice of his property to his brother, John W. Hedges, which then had been made. That upon that occasion, he commenced the conversation by requesting me to take an assignment of an open account, which lie held against Peter Dick, and collect it for him. I told him that there was no necessity for that, as the law in relation to the suitor's oath had been so modified, that it did not apply to any case, where the cause of action was since the first of April, A. D. 1865; that his account against Dick was of that character and that he could collect it in his own name. He said that there were other reasons, that he was in debt, and that it might be attached; he then said he would assign it to Mrs. Israel Robinson, who was the widow of a deceased relative."

"That the said Enoch G. Hedges then said he had put all his property, real and personal, out of his hands; that parties were obtaining judgments against him for property he had taken while he was in the rebel army; I told him that I had not heard that he had taken that course; that I thought it was hardly worth while to do it; that perhaps the judgment might not stand. He was not willing to risk it, and that he had assigned all his property to his brother John. He said his wife objected to it at first, saying, she did not think it was an honorable way of dodging responsibilities. He said he told her that if they did not do it, their property would all be consumed by the judgments that would be taken against him, and that he did not intend to put himself in a position where he would be compelled in their old age to labor for their bread and meat; be said a part of their means had come through her, and he did not mean that it should be wasted for anything he had done; that the transfer he had made to his brother John, would leave the property to his (Enoch's) hands and under his control and that he could have the use of it.

" That the claims against him, for which it was likely to be taken, were unjust, and that it would not be right to have

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his property taken to pay them. That the transfer he had made of his property would not rob any honest creditor to whom he.owed honest debts. That he did not owe much else and would soon pay his honest debts, and, amongst others, named the claim of defendant, Eobert K. Robinson, as one he would pay.

" That his wife, upon his representing his circumstances and condition, assented to the assignment. I asked him if his brother John would stand by him, and whether, after all, his property might not be taken to pay these judgments. He said he thought John would stand by him. He spoke of the suit and judgment in favor of defendant, R. K. Robinson, against him, and said it was uncalled for and unnecessary, that he would have paid it without suit, but he would want some time on it. That his farm would have to be stocked; that he had lost by the war; that his farm had been stripped, and that he would have to stock it before he could pay the defendant's judgment; that he thought the defendant had treated him harshly; that he did not need the money and ought not to sell the little stock he had. If he persisted in selling it, he would have to get John after him.

" He asked me what I thought about it; I told him the debt was an honest one and he had better let it alone. I told him there was danger in it, that it might open up the whole question of his assignment to John, and that John might not be able to maintain his title. He said he thought John would stand by him in anything he might do, and that there would be no danger as to the title. Mr. E. G. Hedges is about sixty years old; until the war commenced, the family of E. G. Hedges and myself had always been on very intimate and friendly terms; I am the nephew of Robert K. Robinson."

The plaintiff objected to the admissibility of this evidence for the purpose of impeaching the witness Hedges, but being overruled by the court, he excepted.

The defendant's first bill of exceptions was as follows:

"Be it remembered, that upon the rendition of the verdict in this cause, the defendant, by his counsel, moved the court to amend the bill of exceptions, filed by the plaintiff, during the progress of the trial, by the insertion of the following facts, which were stated by E. GL Hedges, the witness referred to in said bill of exceptions, which statements were made before the testimony of James W. Robinson was allowed to go to the jury, as stated in said exceptions, to wit: The said E. GL Hedges testified that the consideration of the deed filed with said exceptions of the plaintiff, was the sum of 8, 000 dollars, in which sum in part, he stated, he was indebted to John W. Hedges, at whose relation or for whose benefit this suit was brought, the said John W. Hedges, being the grantee in said deed, and the residue of said sum of 8, 000 dollars, he stated, the said John W. Hedges expected to pay in discharge of debts due by said E. G. Hedges, and that the ruling of the court, stated in said exceptions was, in part, founded upon the previous...