Hilts v. Ladd

• Decision Date: 31 July 1899
• Citation: 58 P. 32,35 Or. 237
• Parties: HILTS v. LADD et ux. [1]
• Court: Oregon Supreme Court

58 P. 32

35 Or. 237

HILTS v. LADD et ux. ^[1]

Supreme Court of Oregon

July 31, 1899

Appeal from circuit court, Union county; Stephen A. Lowell, Judge.

Suit to impeach a decree by Rachel M. Hilts against Freeman S. Ladd and Mary A. Ladd. From a decree setting aside the former decree, defendants appeal. Reversed.

T.H Crawford, for appellants.

L.B Cox, for respondent.

BEAN, J.

This is a suit to impeach and set aside a decree of this court on the ground of newly-discovered evidence, and comes here on an appeal from a decree granting the relief demanded. In brief the facts are that in October, 1893, Homer Nessley, Frank Nessley, and Charles Nessley, being in possession of certain lands in Union county, and claiming to own the same in fee under a warranty deed from the plaintiff, brought a suit in the circuit court of that county against the present defendant to quiet their title to such lands which resulted adversely to them. They subsequently appealed to this court, and, while the appeal was pending, reconveyed the land to the plaintiff. The decree of the court below as afterwards affirmed (29 Or. 354, 45 P. 904), whereupon this suit was instituted for the purpose above stated. In the original cause of Nessley against the defendant, it was claimed by the Nessleys, as it is claimed by the plaintiff in this suit, that the land in question had been sold and conveyed by the defendant in the year 1873 to his brother John R. Ladd, the predecessor in interest of the Nessleys and plaintiff, and that the deed of conveyance was burned, without having been recorded, in a fire which destroyed John R. Ladd's house in the year 1876. The execution of such deed was the real and only point in issue in the case, and upon it much evidence was given on both sides, the material portions of which, as they influenced the decision of this court, are summarized in the opinion of Mr. Justice Wolverton. The Nessleys produced upon the hearing several witnesses who testified to having signed the deed; one of them claiming to have read it over, and undertaking to give its contents, the manner in which it was signed, how it was witnessed and acknowledged, etc. Other witnesses were called, who testified as to statements made by the defendant inconsistent with a claim of ownership to the land. The defendant, however, positively denied ever having made this deed, and gave other evidence tending to corroborate his denial; and this court found, as a conclusion from all the testimony, that he was right. The object of the present suit is to overturn this decree and set it aside on the ground of newly-discovered evidence tending to prove the execution of such deed, and which it is claimed could not have been produced on the former trial by the exercise of reasonable diligence. This newly-discovered evidence consists of the oral testimony of five witnesses (McComas, Deal, Cramblitt, Martin, and Reeves), who testified to facts and circumstances tending to support the plaintiff's theory of the case. McComas testifies that he was a notary public in Union county in 1873; that in March of that year, by request of the defendant and his brother, he drew up a deed of conveyance of the premises in controversy from the former to the latter; that the defendant signed it by his mark, and acknowledged it before him as a notary; and that he then signed as a witness. Martin says that in the spring of 1873 he was employed by McComas; that upon a certain day McComas prepared a deed of the premises in controversy, from the defendant to his brother, and that it was duly signed by the defendant with his mark; and that he attested it as a witness. Deal says that he was in the office of McComas some time in the spring of 1873, and saw the defendant execute a deed of the premises in controversy to his brother, and saw him sign it by his mark. Cramblitt's testimony is substantially to the same effect. And Reeves says that, in the spring of one of the years in the early '70's, he was working for the defendant's brother; that upon a certain day the defendant directed him to hitch a horse to the buggy, saying that they were going to Lagrande to make a deed "to that land"; that the two brothers went away, and upon their return the same evening defendant informed witness that the deed had been made out. The defendant insists, among other things, that the evidence by which the former decree is sought to be impeached, is at best, merely cumulative, or, rather, an accumulation of witnesses upon a point directly in issue in the former case, and is therefore insufficient to support the bill; and, second, that, if the newly-discovered evidence is competent, it is not sufficiently material, satisfactory, or convincing to justify or warrant the decree appealed from.

By our statute (Code, § 377), bills of review are abolished, and it is provided that a decree in equity may be impeached or set aside by an original suit. But it is only the form that is abolished. The substance remains the same. And an original suit, under the statute, to set aside or impeach a decree on the ground of newly-discovered evidence, can only be maintained upon similar grounds to those which would be sufficient to maintain a bill of review, or a bill in the nature of a bill of review, at common law. Crews v Richards, 14 Or. 442, 13 P. 67. Now, it is generally agreed that mere cumulative evidence upon a point in issue in a former trial is not sufficient to support a bill of review, although this is perhaps not an entire uniformity of opinion in the authorities as to whether the mere discovery of new witnesses to prove a matter which was in issue in the former case is cumulative evidence, within the meaning of this rule. In the early and leading case, in this country, of Respass v. McClanahan, Hardin, 342, it is maintained in an opinion, the reasoning of which is so full and clear that Mr. Justice Story said in Dexter v. Arnold, 5 Mason, 315, Fed.Cas. No. 3,856, that he should hesitate longer for acting against it, and expressed regret that he could not transfer it to his opinion in Wood v. Mann, 2 Sumn. 335, Fed.Cas. No. 17,953, that the discovery of new witnesses to prove a matter which was in issue in the original cause is not a ground for a bill of review, but that the new proof to support such a bill must be matter of record, or a writing not known before. In the course of the opinion the court said that, after a most careful search, it could not find "one case reported, in which a bill of review has been allowed on the discovery of new witnesses to prove a fact which had been before in issue, although there are many where bills of review have been sustained on the discovery of records and other writings relating to the title which was generally put in issue. The distinction is very material. Written evidence cannot be easily corrupted, and, if it had been discovered before the former hearing, the presumption is strong that it would have been produced, to prevent further litigation and expense. New witnesses, it is granted, may easily be procured by it, and the danger of admitting them renders it highly impolitic." Mr. Chancellor Kent, in Livingston v. Hubbs, 3 Johns.Ch. 124, arrived at a like conclusion, and seemed to think that such new evidence must not be a mere accumulation of witnesses...