E.E. Yarbrough Turpentine Co. v. Taylor

• Decision Date: 15 June 1916
• Docket Number: 3 Div. 226
• Citation: 198 Ala. 202,73 So. 458
• Parties: E.E. YARBROUGH TURPENTINE CO. et al. v. TAYLOR.
• Court: Alabama Supreme Court

73 So. 458

198 Ala. 202

E.E. YARBROUGH TURPENTINE CO. et al. v. TAYLOR.

3 Div. 226

Supreme Court of Alabama

June 15, 1916

Rehearing Denied Dec. 30, 1916

Appeal from Chancery Court, Autauga County; W.W. Pearson Chancellor.

Bill by Alice V. Taylor against the E.E. Yarbrough Turpentine Company and others, to restrain respondents from going upon certain land and boxing and scraping the trees for turpentine, and to cancel the lease in so far as the same purports to carry authority for any additional time to work and operate the timber on and after a certain date. Decree for complainant and respondents appeal. Reversed and rendered.

W.A Gunter, of Montgomery, and J.M. Tucker, of Prattville, for appellants.

Gipson & Booth, of Prattville, and Evans & Friedman, of Montgomery, for appellee.

SAYRE J.

There is but a single question in this case, and that is a question of fact. It is, whether the lease in controversy between the parties was altered after its execution, as charged by complainant. The judge of the fifteenth circuit, sitting in equity, decreed in accordance with complainant's contention. The statute requires that this court in such cases on appeal shall give no weight to the chancellor's decision upon the facts, but shall weigh the evidence, and give such judgment as may here be deemed just. Code, § 5955. The evidence is in irreconcilable conflict. The instrument came from the custody of defendant, to whom it had been assigned, transferred, and set over by the lessees therein named. It is conceded on all hands that the printed form of lease used in its preparation had been changed in other respects by erasures and interlineations before execution and delivery; but the particular alteration in dispute was material, and it operated to the advantage of defendant. It seems, then, from some cases in this state, that the burden of explaining the change rested upon defendant. Hill v. Nelms, 86 Ala. 442, 5 So. 796; Alabama State Land Co. v. Thompson, 104 Ala. 570, 16 So. 440; s. c., 53 Am.St.Rep. 80. However, Brickell, C.J., said in Ward v. Cheney, 117 Ala. 238, 22 So. 996, which was an action at law, that:

"If [alterations, erasures, or interlineations, are] apparent on the face of the deed, and nothing appears to the contrary, the presumption is that they were made contemporaneously with the execution of the instrument. But if any ground of suspicion is apparent upon the face of the instrument, the law presumes nothing--it leaves the question of the time, the agency, and the intent with which they were made, as matter of fact to be determined by the jury"--citing 1 Green.Ev. § 564; 1 Whart.Ev. § 629.

The cases everywhere are in confusion on this general subject; ours, perhaps, not less so than the rest. We think, however, that in cases where the alteration and its effect upon the instrument are apparent, as here, this rule may be gathered: That the burden of explanation results, not as a presumption of law, for with or without explanation the document is admissible in evidence, but as an inference of fact, the weight of which is affected by the appearance of the document, the probable or possible motive for or against alteration, the advantage or disadvantage to the party claiming under it, and such like considerations, the ultimate issue to be determined as a question of fact upon the whole evidence. Burgess v. Blake, 128 Ala. 105, 28 So. 963. See, also, elaborate note to the same case reported in 86 Am.St.Rep. at page 78 et seq.

From the opinion of the judge below we get the very definite impression that the location of the burden of explanation was allowed to determine the result in favor of complainant. That rule of decision is safe enough in cases where there is a definite burden of proof; at any rate, it is the only available rule where the probabilities are so evenly balanced as to exclude a more satisfactory basis of judgment. But here the face of the instrument, the original of which we have before us, is to be considered with a view to determining what degree of suspicion should be attached to it, and the testimony, offered on either side as tending to show the purposes of the parties and the circumstances in which the documentary evidence of their agreement was prepared, must be brought to the test of that likeness to truth which our common knowledge, observation, and experience of human nature warns us to cautiously seek out in dealing with every contested issue of fact in which the interests and feelings of witnesses may be involved.

The instrument in question, a lease of pine land for turpentining, was executed on the 3d of March, 1911. Six months later, but long before any dispute arose as to the terms of the lease, it was assigned, transferred, and set over by the lessees to the defendant in this cause. The witnesses present and taking part in its preparation, the only witnesses in fact from whom we would naturally expect any definite recollection of its terms after so long a time, are all persons of good repute in the communities where they live and are known, as numerous other witnesses have testified, and it is hard to bring our mind to the conclusion that any of them have intentionally misrepresented the facts. We do not impute wrong to any of them. We deal with the case presented by the record, and its nature is such that a finding that some of the most material witnesses to the transaction in question are in error is inevitable; and if the lessees, the Carters, have misstated the substantial facts, then it must follow that they have added deliberate perjury to their crime of forgery--a matter it is not in the human nature of any but the habitual criminal to forget.

The instrument in dispute witnesses a lease from complainant to the Billingsley Turpentine Company, a corporation or partnership in which the Carters, witnesses for defendant were interested. Present and taking part in its preparation were the Carters, acting for the company, and G.W. and L.C. Taylor, husband and son, respectively, of complainant, whom they represented. A printed form,...