Graves v. Colwell

• Decision Date: 30 September 1878
• Citation: 90 Ill. 612,1878 WL 10217
• Parties: JONATHAN GRAVES et al.v.PRESLEY COLWELL.
• Court: Illinois Supreme Court

90 Ill. 612

1878 WL 10217 (Ill.)

JONATHAN GRAVES et al.

v.PRESLEY COLWELL.

Supreme Court of Illinois.

September Term, 1878.

OPINION TEXT STARTS HERE

APPEAL from the Circuit Court of Stark county; the Hon. J. W. COCHRAN, Judge, presiding.

This was ejectment by appellee, the plaintiff below, against appellants, the defendants below, to recover a valuable tract of land in Stark county. Mirandus B. French was the common source of title.

Appellee's chain of title was a deed from French to Thomas Colwell, bearing date October 14, 1856; a deed from Thomas Colwell, Sr., and wife, to Adolphus Colwell and appellee, bearing date November 9, 1858; and a deed from Adolphus Colwell to appellee, bearing date October 17, 1874.

The chain of title of appellants was the deed from French to Thomas Colwell, dated October 14, 1856; a deed from Thomas Colwell, Jr., to Presley Colwell, bearing date August 11, 1859; a deed from Presley Colwell and wife to Jefferson Trickle, bearing date October 8, 1864; a deed from Jefferson Trickle and wife to F. F. Brockway and Andrew J. Scott, bearing date October 18, 1869; and a deed from said Brockway to said Scott, who is one of the appellants, bearing date August 17, 1872. The same deed from French was the first link in each chain of title.

It appeared, from the evidence, that Thomas Colwell, Sr., and Thomas Colwell, Jr., were father and son, and lived together, and that both they and French, the grantor in the first deed, had been dead for many years before this litigation arose.

On the trial, before a jury, in the Stark circuit court, appellee introduced his chain of title and rested his case. Appellants then introduced their chain of title, and evidence tending to prove that Thomas Colwell, the younger, was the Thomas Colwell indicated in the deed from French. Appellee then, in rebuttal, introduced evidence tending to prove that Thomas Colwell, the elder, was the Thomas Colwell intended in the deed. The verdict of the jury and the judgment of the court were for appellee. The record is brought to this court by appeal.

Among the errors assigned are, that the court gave improper instructions for the plaintiff below; that the court refused to give proper instructions asked by the defendants below; that the verdict of the jury was contrary to the law and the evidence; and that the circuit court erred in overruling the motion for a new trial.

Messrs. M. SHALLENBERGER & SON, for the appellants.

Mr. M. A. FULLER, and Mr. J. E. DECKER, for the appellee.

Mr. JUSTICE BAKER delivered the opinion of the Court:

The plaintiff made out a prima facie case by availing himself of the presumption of law that the father and not the son was intended by the deed from French. Lepiot v. Browne, 6 Mod. Rep. 198; Kincaid v. Howe, 10 Mass. 203; Padgett v. Lawrence, 10 Paige, 170; The State v. Vittum, 9 N. H. 519; 2 Wharton's Ev. § 1273.

It, then, devolved on defendants to introduce evidence sufficient prima facie to rebut this legal presumption, and, as they did so, they would have been entitled to a verdict if the case had stood still there. The case of the defendants, as disclosed by their testimony, considered in and of itself, rebutted the legal presumption, and thereby the onus was shifted back to plaintiff, and he was bound to produce proofs sufficient to overcome, or at least equal in probative force, the case of the defendants. Plaintiff did introduce certain rebutting evidence, and, he having done so, the verdict of the jury should have been in conformity with the preponderance of evidence on the whole case. If the testimony of defendants was of greater probative force than the rebutting evidence of plaintiff added to the probative value of the legal presumption, then the verdict should have been for them. If the evidence in the concrete case, including the evidential weight of the presumption of law, was in equilibrium, then plaintiff might still have availed himself of the presumption of law, as an arbitrary rule of law, and been entitled to recover.

It has been said, that presumptions of law derive their force from jurisprudence and not from logic, and that such presumptions are arbitrary in their application. This is true of irrebuttable presumptions, and, primarily, of such as are rebuttable. It is true of the latter until the presumption has been overcome by proofs, and the burden shifted; but when this has been done, then the conflicting evidence on the question of fact is to be weighed and the verdict rendered, in civil cases, in favor of the party whose proofs have most weight, and in this latter process the presumption of law loses all that it had of mere arbitrary power, and must necessarily be regarded only from the standpoint of logic and reason, and valued and given effect only as it has evidential character. Primarily, the rebuttable legal presumption affects only the burden of proof, but if that burden is shifted back upon the party from whom it first lifted it, then the presumption is of value only as it has probative force, except it be that on the entire case the evidence is equally balanced, in which event the arbitrary power of the presumption of law would settle the issue in favor of the proponent of the presumption.

Regarded in its evidential aspect, a given presumption of law may have either more or less of probative value, dependent upon the character of the presumption itself and upon the circumstances of the particular case in which the issue may arise. Some legal presumptions are more probable and inherently stronger than others. So, also, differing circumstances may give differing degrees of probability to one and the same legal presumption. A promissory note is made to A B, and it turns out there are two persons of that name in the community,--a father and son. The question of identity arises, and, primarily, as fixing the burden of proof, the law says it is presumed the father was intended. Thus far the presumption is judicial and arbitrary. An issue is formed, and the son establishes, prima facie, that he and not the father was indicated, and the father then offers rebutting evidence. Now, this issue, thus made, is to be determined by the weight of evidence and upon the whole case, and in determining such issue the presumption has lost (unless there be an equilibrium) its merely arbitrary character, and is entitled only to its logical value. If A B, the son, was, at the date of the transaction involved in the controversy, a mere infant of tender years, wholly unacquainted with business affairs, and the father was engaged in the active pursuits of life, the probability that the father was meant is very great, and the legal presumption would have much more of probative force than it would have in a case where the son was a mature man and in active business, and the father aged and retired from business.

In this case, the first and second instructions given for appellee were as follows:

“1. The jury are instructed, that where a deed is made to one of two persons of the same name, being father...