Kenney v. Phillipy

• Decision Date: 19 September 1883
• Docket Number: 10,664
• Citation: 91 Ind. 511
• Parties: Kenney et al. v. Phillipy
• Court: Indiana Supreme Court

91 Ind. 511

Kenney et al. v. Phillipy

No. 10,664

Supreme Court of Indiana

September 19, 1883

Petition for a Rehearing Overruled November 26, 1883.

From the Superior Court of Marion County.

Judgment affirmed.

P. W Bartholomew and E. C. Buskirk, for appellants.

W. W Herod and F. Winter, for appellee.

OPINION

Elliott, J.

It is insisted by the appellants that the judgment should be reversed for the reason that the special judge, appointed to try this cause, had no authority to act as such. No objection was made in the court below, and appellants can not here successfully complain unless the record affirmatively shows that the appointment was without authority of law. This it does not do. There are cases in which a judge pro tempore may be appointed by a judge of the superior court, and as the record discloses nothing to the contrary we must presume this to be such a case. Presumptions are always indulged in favor of the action of the trial court, and, we must, therefore, presume that the appointment in this case was legal and regular. Of course, if the statute forbid such an appointment, or if the record showed the case to be one in which such an appointment could not be legally made, we should be bound to hold the proceedings void. This, however, is not such a case. The record being silent as to any objections to the appointment, and there being cases in which an appointment may be made, we must sustain the ruling of the trial court. Zonker v. Cowan, 84 Ind. 395; Kennedy v. State, 53 Ind. 542; Winterrowd v. Messick, 37 Ind. 122; Feaster v. Woodfill, 23 Ind. 493; Kane v. State, 71 Ind. 559.

This action was commenced by Margaret Coble to recover the possession of real estate; pending the action she died, and the appellee, having shown that he had purchased the land from her, was substituted as plaintiff.

The land in dispute was owned by the husband of Margaret Coble at the time of his death, and her interest is such as she acquired as his widow. After her rights had vested she made a conveyance of the land to the children of John Coble, reserving to herself a life-estate; the consideration expressed in the deed is one dollar, but there is evidence strongly tending to show that no valuable consideration was paid. The children of John Coble died prior to the death of Margaret Coble, unmarried and without children surviving them.

The appellee was permitted to prove the actual consideration of the deed, and in this there was no error. Few rules are better settled than that which declares that the question of consideration is not closed by the recitals of the deed, and that the true consideration may always be shown by parol evidence.

What the grantor said at the time of making the deed, as to the consideration upon which it was founded, was properly admitted as part of the res gestoe. The declarations of a deceased grantor are not, it is true, admissible in favor of the heirs or executors, unless some rule of evidence would make them competent in his favor, if he were living and a party to the action; but when they are part of the transaction they are always competent. The rule which we deem the correct one is thus expressed in a recent work on evidence: "But the decedent's admissions and declarations are not competent in favor of the representative, unless some rule of evidence would admit them in favor of the decedent if living, as, for instance, where they were part of the res gestoe of an act properly in evidence." Abbott Trial Ev. 60; Doe v. Reagan, 5 Blackf. 217 (33 Am. Dec. 466); Hamilton v. State, 36 Ind. 280 (10 Am. R. 22); Howe v. Yopst, 20 Ind. 409; Ghormley v. Young, 71 Ind. 62; Baker v. Gausin, 76 Ind. 317.

Where declarations form part of the thing done, they are admissible in evidence whether the person by whom they were made is, or is not, a competent witness, and the fact that Mrs. Coble would not have been a competent witness is therefore unimportant.

A scrivener employed for the purpose of drafting a deed is not the agent of the grantor, within the meaning of section 500 of the statute. R. S. 1881, sec. 500. An agent is, ordinarily, one who acts in his principal's place and behalf, and it is to this class of agents that the statute applies. In the present instance, the witness Trowbridge was employed not to make a contract, but to prepare the evidence of it, and it is very clear that to such the...