Fitzgerald v. Goff

• Decision Date: 12 December 1884
• Docket Number: 10,183
• Parties: Fitzgerald, Trustee, v. Goff
• Court: Indiana Supreme Court

99 Ind. 28

Fitzgerald, Trustee, v. Goff

No. 10,183

Supreme Court of Indiana

December 12, 1884

From the Marion Circuit Court.

Judgment is affirmed with costs.

A. L Roache and E. H. Lamme, for appellant.

W. W Woollen, for appellee.

OPINION

Howk, J.

This was a suit by the appellee, Eliza A. Goff, against the appellant, Fitzgerald, trustee of the "Mercantile Trust Company of New York," and a number of other persons, as defendants. In her complaint the appellee alleged that she had the legal title to, and was in the peaceable possession of, the south half of lot No. 8, in Coburn and Blackford's subdivision of square No. 11, in the city of Indianapolis; that the appellant and each of his co-defendants set up and claimed an interest and estate in and to such real estate adverse to the appellee's estate and interest therein; that heretofore, from January 1st, 1879, to March 19th, 1881, the defendants, the Mercantile Trust Company of New York, the appellant, the trustee of such company, and its agent, Charles E. Coffin, wrongfully and without her consent collected, received and appropriated to their own use the rents, issues and profits of the above described real estate, amounting in the aggregate to, to wit, the sum of $ 500; that the defendant, the Mercantile Trust Company, was a corporation organized under the laws of the State of New York, and its principal office was in the city and State of New York, and the defendant Coffin and Addison L. Roache were its duly authorized agents in the city of Indianapolis. Wherefore appellee prayed that the defendants, and each of them, might be compelled to show their title to, or interest in, the real estate aforesaid; that such title or interest may be declared null and void as against the appellee's title; and that she might recover judgment for the rents aforesaid as damages, etc.

The defendant, the Mercantile Trust Company, separately answered by a general denial of the appellee's complaint, and it also filed a separate cross complaint, wherein it alleged that it was the owner in fee simple, and entitled to the possession, of the real estate in controversy; that the appellee pretended to claim some interest in or to such real estate, but that, in fact, she had no interest therein, and that her unfounded claim was a cloud upon the title of such cross complainant. Wherefore it prayed that its title might be quieted, etc.

To this cross complaint appellee answered in two paragraphs:

1. By a general denial; and,

2. That the pretended title and ownership of the cross complainant in and to the real estate in controversy was based upon what purported to be a deed from the appellee to one John L. Hanna of the real estate in controversy, a copy of which deed and of its acknowledgment before one William V. Hawk, a notary public of Marion county, is set out in the body of the second paragraph of appellee's answer to the cross complaint; and that she, the appellee, never executed and delivered such deed, and the same is not her act and deed. Wherefore, etc.

The deed referred to in such second paragraph of her answer purported to have been executed by appellee on the 20th day of March, 1875, and to have been acknowledged on the same day, month and year, and was a (short form) general warranty deed. Such second paragraph of answer was verified by the oath of the appellee.

The first trial of the action resulted in a verdict for the appellee, and, over a motion for a new trial for cause shown, in a judgment accordingly in her favor. Appellant then paid the costs, and took a new trial as a matter of right under the statute. The cause was again tried by a jury, and a general verdict was returned for the appellee. Over appellant's motion for a new trial, the court rendered judgment for the appellee, as prayed for in her complaint.

The overruling of the motion for a new trial is the only error assigned here by the appellant. In this motion many causes were assigned for such new trial, but of these we need only consider such as the appellant's counsel have specially directed our attention to in their exhaustive briefs of this cause.

The fact was conceded upon the trial, and is not controverted here, that, prior to the 20th day of March, 1875, the appellee, Eliza A. Goff, was the owner in fee simple and in the possession of the real estate in controversy. The appellant asserted below, and asserts here, that the "Mercantile Trust Company of New York" was and is the owner in fee simple, and entitled to the immediate possession, of such real estate; but it claimed to derive its title thereto from, through and under the appellee Eliza A. Goff, and it asserted no other or different title to such real estate, or right to the possession thereof, except such as it claimed under Mrs. Goff, through her alleged mesne conveyance of the real estate to John L. Hanna. If the appellee conveyed the real estate to John L. Hanna, by her alleged deed thereof, dated March 20th, 1875, then it subsequently became the property of the Mercantile Trust Company, for it is not controverted that Hanna mortgaged such real estate to the trust company to secure a loan of money, and that by and under such mortgage such company had acquired all the title and estate which John L. Hanna had or held in and to such property. In the second paragraph of her answer to the appellant's cross complaint, as we have seen, the appellee averred under her oath, that she never executed and delivered the deed of March 20th, 1875, to John L. Hanna, and that the same was not her act and deed. The sufficiency of this paragraph, either in form or substance, was not called in question in the trial court, nor is it questioned here. Manifestly, the paragraph tendered an issue upon the controlling question in the case.

Upon this issue the jury found generally for the appellee. In answer to interrogatories propounded by the court the jury found specially, in substance, as follows:

The evidence in this cause shows a perfect title in Eliza A. Goff, of record, on the 20th day of March, 1875, to the real estate described in her complaint; and that she is an illiterate and uneducated person, and can not write her name. She did not sign her name, nor make her mark to her name to a deed for said real estate, dated March 20th, 1875, and purporting to be from her to one John L. Hanna. The name of Eliza A. Goff was signed to the said deed by Mrs. Hubbard, and no one directed it to be done. From where Eliza A. Goff was sitting, she could not have seen her daughter (Mrs. Hubbard) sign her name to said deed when it was done. Said deed was not read, nor explained, to said Eliza A. Goff by any person, nor did she, with intent so to do, deliver the said deed to John L. Hanna. Eliza A. Goff never acknowledged the execution of said deed.

With this statement of the case, and of the question at issue, we proceed now to the consideration of the matters complained of here by appellant's counsel. It is earnestly insisted by counsel that the verdict of the jury was contrary to, and not sustained by, the evidence in the cause, and was contrary to law. We can not disturb the verdict on these grounds, under the long-settled practice of this court. The questions for trial were mainly questions of fact, involving alleged fraud and forgery, and peculiarly within the province of the jury. The evidence in relation to the alleged execution of the deed by appellee to John L. Hanna was sharply conflicting and could not well be reconciled, and the credibility of the different witnesses was, also, a question for the jury. In such a case, where the verdict has met the approval of the trial court, this court will not disturb the verdict, nor reverse the judgment, on what might seem to be the weight of the evidence. Fort Wayne, etc., R. R. Co. v. Husselman, 65 Ind. 73; Cornelius v. Coughlin, 86 Ind. 461; Fellenzer v. Van Valzah, 95 Ind. 128.

The appellee was a witness on the trial in her own behalf, and on her cross-examination she denied that she had ever executed a mortgage to John L. Hanna, and acknowledged the same before one George W. Powell, a notary public. Afterwards appellant called Powell as a witness and offered to prove by him that appellee had executed such mortgage, and had acknowledged it before him as a notary. The court sustained an objection to the offered evidence, and the ruling is assigned as cause for a new trial. There was no error in this ruling. The evidence was offered for the purpose of contradicting the appellee's testimony brought out by the appellant on an immaterial point not relevant to the issue. 1 Greenl. Ev. 613, note. The appellee's testimony was in answer to a question propounded by appellant, and tendered an immaterial side-issue, as to which he was bound by her answer and could not be permitted to contradict it. 1 Greenl. Ev., section 449. Besides the objection was withdrawn in ample time for the introduction of the offered evidence, if the appellant wished to introduce it.

Appellant offered a witness to prove the good moral character of John L. Hanna, and the general reputation of Hanna for truth and veracity. Upon appellee's objection the offered evidence was excluded. There was no error, we think, in these rulings. Appellee did not attempt to impeach Hanna by introducing evidence touching his moral character, or to show that his general reputation for truth and veracity was not good. A party can not be permitted to introduce evidence to bolster or sustain the moral character or reputation of his witness, where his testimony has been contradicted merely, and no attempt made to impeach the moral character or reputation of such witness. Johnson v. State, 21 Ind. 329; Presser v. State, 77 Ind. 274; Brann v. Campbell, 86 Ind....