Jasper v. Hazen

• Decision Date: 03 March 1894
• Docket Number: 6731
• Citation: 58 N.W. 454,4 N.D. 1
• Court: North Dakota Supreme Court

58 N.W. 454

4 N.D. 1

JOHN W. JASPER v. ARTHUR H. HAZEN

No. 6731

Supreme Court of North Dakota

March 3, 1894

Appeal from District Court, Cass County; McConnell, J.

Action by John W. Jasper against Arthur H. Hazen. Plaintiff had judgment, and defendant appeals.

Affirmed.

Benton & Amidon, (Sumner Ladd of counsel,) for appellant.

Equity ought to be extremely cautious in its consideration of parole testimony to show a deed in form a mortgage. Andrews v. Ins Co., 3 Mason (U. S.) 6. The evidence must be clear convincing and equal in force to that upon which a deed will be reformed for mistake. Kent v. Lasley, 24 Wis 654. A mere preponderance of proof is not sufficient. Sloan v. Becker, 34 Minn. 491; McClellan v Sanford, 26 Wis. 595, 607. The burden rests upon the moving party of overcoming the strongest presumption arising from the terms of the written instrument. Holland v. Blake, 97 U.S. 624, United States v. Maxwell Land Grant, 121 U.S. 325, 381; United States v. Budd, 144 U.S. 154; Meade v. Ins. Co., 64 N.Y. 453; Ford v. Joyce, 78 N.Y. 618; Tufts v. Larned, 27 Ia. 330; Lynn v. Barkley, 7 Ind. 69; Stockbudge Iron Co. v. Hudson Iron Co., 102 Mass. 45; Story's Eq. Jur. § 157; 2 Pom. Eq. Jur. § 859. To convert a deed absolute on its face into a mortgage by parole testimony, such testimony must be clear and specific, of a character such as will leave on the mind of the court no hesitation or doubt. Lances Appeal, 112 Pa. 456; Henley v. Hotaling, 41 Cal. 22; Tilden v. Streeter, 45 Mich. 533; Johnson v. Van Velsor, 43 Mich. 208; Kercheval v. Doughty, 31 Wis. 476; Townsend v. Peterson, 21 P. 619; Satterfield v. Malone, 35 F. 445; Munger v. Casey, 17 At. Rep. 36; Pierce v. Traver, 13 Nev. 526.

M. A. Hildreth, (Chas. A. Pollock, of counsel,) for respondents.

The rule which excludes parole testimony to contradict or vary a written instrument has reference to the language used by the parties, it does not forbid an inquiry into the object of the parties in executing and receiving the instrument. Brick v. Brick, 98 U.S. 516; Hughes v. Edwards, 9 Wheat 489; Pierce v. Robinson, 13 Cal. 116. Parole evidence is admissable to show that an absolute conveyance is in fact a mortgage. Jones on Morts. § 285; Russell v. Southard, 12 How. 139; Peugh v. Davis, 96 U.S. 332; Babcock v. Wyman, 19 How. 289. The intention of the parties is the true test to be gathered from the circumstances surrounding the transaction. Pugh v. Davis, 96 U.S. 332; Montgomery v. Spect, 55 Cal. 352. The findings were justified by the evidence. McMillan v. Bissell, 29 N.W. 737; Allen v. Fogg, 23 N.W. 643; Manf. Bank v. Rugee, 18 N.W. 251; Madigan v. Meade, 16 N.W. 539; Rockwell v. Humphrey, 15 N.W. 394; Ingwald v. Atwood, 5 N.W. 160; Stark v. Redfield, 9 N.W. 168; Gay v. Hamilton, 33 Cal. 686; Raynor v. Lyons, 37 Cal. 452; Taylor v. McLain, 64 Cal. 514.

OPINION

BARTHOLOMEW, C. J.

This case is before us for the third time. Upon the first appeal a verdict of a jury in respondent's favor was set aside upon the ground that the case should have been tried in equity, and not at law. The case is reported in 1 N.D. 75; 44 N.W. 1018, where a full statement of the issues is given, which need not be here repeated. The case was again reversed, on a question of pleading, in 2 N.D. 401; 51 N.W. 583. It comes before us again upon the merits, judgment for respondent having been entered below upon findings of fact and conclusions of law. These findings are somewhat extended, and every issue made by the pleadings is found in respondent's favor. It is claimed that many of these findings are not supported by the evidence. A reference to the pleadings, as set forth in the former opinion, discloses that the plaintiff, who is respondent here, sought to compel the appellant to account for the value of certain property, real and personal, which it was claimed appellant held as trustee, ex maleficio, for respondent, and which he had wrongfully converted to his own use. It will also appear that appellant held the real estate, for the value of which it was sought to compel him to account, by a deed absolute on its face, but which respondent insisted was in fact given to secure the performance of an act which had long since been performed. It is thus apparent that, in considering the evidence necessary to establish appellant's liability in this case, two somewhat different rules of law must be applied. Liability for the value of the personal property may be established under what we may term the "general rule," while liability for the value of the real estate can only be fixed under the strict rule to be hereafter considered.

Speaking now only of the personal property, the rule that the findings of facts of a trial court, like the verdict of a jury, will not be disturbed by an appellate court when they have substantial support in the evidence, has been so often announced, and is so familiar to the profession, that no authorities need now be cited in its support. But § 5237, Comp. Laws, re-enacted as § 25, Ch. 120, Laws 1891, in speaking of the powers of the Supreme Court on appeal, says: "Any question of fact or of law decided upon trials by the court or by referee may be reviewed when exceptions to the findings of fact have been duly taken by either party and returned." To what extent this provision modifies or controls the general rule above announced is an interesting question that has never been directly passed upon by this court. Nor, so far as we can ascertain, was this provision ever construed by the Supreme Court of the late territory prior to its re-enactment by our state legislature. The provision was incorporated in the Laws of the Territory of Dakota in 1887; and Waldron v. Railroad Co., 1 Dak. 351, 46 N.W. 456, and Mining Co. v. Noonan, 3 Dak. 189, 14 N.W. 426, both of which announce the general rule, were decided prior to that time. This same provision was enacted in Wisconsin in 1860. The first case arising thereunder was Snyder v. Wright, 13 Wis. 689. From that case, and from Fisher v. Loan & Trust Co., 21 Wis. 73, and Garbutt v. Bank, 22 Wis. 384, it is quite clear that the Supreme Court of Wisconsin felt itself compelled to pass, to some extent at least, upon questions of fact, in cases of this character. The construction placed upon the statute by that court ought to be binding upon us, as we adopted the law after such construction. The difficulty lies in determining just how far that learned court intended to go. That the statute ingrafted a change upon the former practice is certain. To review is to re-examine judicially. Yet we are constrained to believe that the legislature did not intend a "trial de novo," in the usual acceptation of that term. It did not intend that this court should take up the parole evidence as preserved in the bill of exceptions, and pass upon it without any reference to the decision below. Rather, it intended--and such, we think, is the effect of the Wisconsin decisions--that, when a finding of fact made by the trial court was brought into this court for review upon proper exceptions, it should come like a legal conclusion, with all the presumptions in favor of its correctness, and with the burden resting upon the party alleging error of demonstrating the existence of such error. He must be able to show this court that such finding is against the preponderance of the testimony, and where the finding is based upon parole evidence, it will not be disturbed, unless clearly and unquestionably opposed to the preponderance of the testimony. Randall v. Burk Tp., 4 S.D. 337, 57 N.W. 4. Of the probative force and value of depositions and documentary evidence, this court may be in as good situation to determine as the trial court; and when the finding is based upon this character of evidence, and it reasonably appears to this court, upon a full examination thereof, that the finding is against the weight of the evidence, we think it would be our duty, under the statute, to disturb the finding. But every practitioner of extended experience knows how absolutely essential it is, in order to ascertain the truth from parole evidence, that the tribunal who is to pass upon the evidence should see the witness upon the stand. The printed page containing the evidence gives, oftentimes, a radically different impression from that made at the hearing. The opportunity of observing the witnesses, and their interest or lack of interest in the case, their prejudices and passions, their mental capacities and powers of observation and memory, and the use they have made of these powers, their entire deportment on the stand, and conduct under cross-examination,--these and many other circumstances that attend personal observation,--are undoubted auxiliaries in ascertaining truth. Of all these helps this court is deprived, while the trial court possesses them fully. It is obvious that, if these things be disregarded, mistakes will be made, and injustice be done. As the finding of fact based upon parole evidence comes to us with all presumptions in favor of its correctness, we must, in reaching our conclusions, throw into the balance in support of the finding, not only the full effect of the printed evidence in the bill of exceptions, but also the full effect of the inferences and impressions that might reasonably and legitimately be drawn from personal observation of the witnesses; and it is only when the scales unmistakably incline the other way, when the finding is thus weighed, that we are warranted in disturbing it. Applying these principles to the evidence in this case bearing upon appellant's liability for the value of the personal property, and it becomes so clear that the findings cannot be disturbed that it would be a waste of time to analyze the testimony.

More...