Knight v. Hescock, 157-78
| Decision Date | 05 June 1979 |
| Docket Number | No. 157-78,157-78 |
| Court | Vermont Supreme Court |
| Parties | Freda David KNIGHT, Co-Executor of the Estate of Zelma Turner Grant v. Lawrence HESCOCK, Executor of Florida Turner DiBenedetto Estate. |
John Morale, Wells River, and Harry A. Black, of Black & Plante, White River Junction (on the brief), for plaintiff.
Weber, Fisher, Perra & Gibson, Brattleboro, for defendant.
Before BARNEY, C. J., and DALEY, LARROW, BILLINGS and HILL, JJ.
This was a declaratory judgment action between the estates of deceased sisters over title to land in Grafton. Plaintiff's estate claimed title through a 1950 deed to her from defendant's decedent and her husband. Defendant's estate claimed through a quitclaim deed of the same date back to decedent, not recorded until 1955. This quitclaim was asserted to be a forgery, on the basis of lack of recollection by one attesting witness and the opinion of a handwriting expert. The trial court found execution of the quitclaim by plaintiff's decedent, and also made extensive findings relating to adverse possession since 1950. Plaintiff appeals.
The first claim of error relates to reliance by the court upon the ancient documents rule, so-called, asserting that Vermont law requires possession of an ancient document to be for a thirty-year period, a requirement not here met. But that rule is one governing the admissibility into evidence of a document, with prima facie validity, in the absence of other authentication. Aldrich v. Griffith, 66 Vt. 390, 404, 29 A. 376, 380 (1893); 29 Am.Jur.2d Evidence § 856. Error is not made to appear, because the deed in question was not only unobjected to, but marked as an exhibit by agreement.
The deed bears on its face proper acknowledgment. Although this does not conclusively establish execution, it is strong proof thereof, not to be overthrown on evidence of doubtful character. Albany County Savings Bank v. McCarty, 149 N.Y. 71, 80-83, 43 N.E. 427, 430-31 (1896); Holmes v. First Union Trust & Savings Bank, 362 Ill. 44, 49, 198 N.E. 671, 673 (1935); Iantosca v. Iantosca, 324 Mass. 316, 321-22, 86 N.E.2d 59, 61-62 (1949).
Since the trial court upheld execution of the deed upon evidence properly before it, and rejected the contention of forgery, the judgment below is supported. Consideration of the alternative defense of adverse possession is not required.
Judgment affirmed.
In 1974 Zelma Turner Grant brought this action against the estate of Florida Turner DiBenedetto, her sister, seeking a declaratory judgment as to the ownership of certain land in Grafton, Vermont. She died prior to trial and a co-executor of her estate was substituted as plaintiff. The co-executor appeals from an order of the Windham Superior Court declaring the defendant estate owner of the disputed property. Two claims of error have been briefed and argued by the plaintiff. I believe that both are valid and therefore dissent.
Certain factual matters absent from the per curiam opinion should be noted. The land involved here was occupied by Florida DiBenedetto and her husband from the early 1930's until his death sometime prior to 1953. In 1956 Lawrence Hescock came to live with her. She continued to live on the property until her death in 1970. Mr. Hescock stayed on after her death and now seeks to sell the property in the discharge of his duties as executor of the estate.
The land records of the Town of Grafton indicate that a warranty deed of the disputed property from Mrs. DiBenedetto and her husband to Mrs. Grant dated June 20, 1950, was recorded the following day. They further indicate that a quitclaim deed also dated June 20, 1950, from Mrs. Grant back to Mrs. DiBenedetto individually was not recorded until January 3, 1955, almost five years later.
In her complaint, Mrs. Grant alleged that the quitclaim deed was a forgery and that she was the lawful owner of the property. The defendant denied the forgery and raised the affirmative defense of title by adverse possession.
At trial, the plaintiff's handwriting expert testified that Mrs. Grant's signature on the quitclaim deed was forged. This testimony was uncontradicted. In addition, the plaintiff secured the testimony of a woman whose signature appears as an attesting witness on both the warranty and quitclaim deeds. This woman testified that she recalled witnessing the warranty deed from Florida DiBenedetto and her husband to Mrs. Grant, but she could not recall witnessing a deed from Mrs. Grant "to anyone at any time," nor would she identify her own signature on the quitclaim deed as being genuine.
The trial court concluded that, as an ancient document, the quitclaim deed was presumptively valid and that the plaintiff's evidence was insufficient to rebut this presumption. It therefore found that the deed was genuine.
The court also found that during her lifetime Mrs. DiBenedetto paid all taxes and other costs incident to ownership and occupancy of the premises. Upon moving in Mr. Hescock assisted her, and since her death he has paid all assessments. Mrs. Grant never occupied the premises, never made any financial contribution to upkeep or maintenance, and did not visit the premises with any frequency. Neither she nor anyone on her behalf made any claim to the subject premises until after the death of Mrs. DiBenedetto. The court concluded, therefore, "that Florida, Florida and Defendant, and then Defendant have maintained and occupied the premises openly, notoriously, and with claim of right for more than 15 consecutive years," and entered an order declaring that "(t)he subject premises are owned by the Estate of Florida T. DeBenedetto."
In its traditional sense the ancient documents rule relates only to authentication. McCormick on Evidence § 323, at 747 (2d ed. 1972). It provides that a writing is sufficiently authenticated if the party offering it establishes that it (1) is thirty years old, (2) unsuspicious in appearance, and (3) produced from a natural place of custody. Id. § 223, at 549-50. See also Giddings v. Smith, 15 Vt. 344, 349 (1843). However, a separate aspect of the rule, as the per curiam opinion acknowledges, is that such a document is "prima facie" valid. See 7 Wigmore on Evidence § 2146 (J. Chadbourn rev. 1978). This case is concerned only with this latter aspect of the rule.
As noted, the rule requires a document thirty years old. Id. § 2138, at 725. There is no independent proof in the record that this deed existed prior to its filing in January of 1955. It was offered in evidence in October of 1977. Because it was not shown to have existed for thirty years prior to the offer, the deed should not have been presumed valid as an ancient document. Even if one relied on the purported date of execution, this deed would not satisfy the thirty year requirement.
Furthermore, even if the deed in question was an ancient document, the plaintiff's evidence was sufficient to rebut any presumption of validity. Once a party against whom a presumption operates produces evidence "fairly and reasonably tending to show that the real fact is not as presumed, the office of the presumption is performed, and the fact in question is to be established by evidence as are other questions of fact, without aid from the presumption, which has become Functus officio." Tyrrell v. Prudential Insurance Co. of America, 109 Vt. 6, 23, 192 A. 184, 192 (1937). Certainly the testimony of the plaintiff's expert alone was sufficient to rebut any presumption of validity.
The per curiam opinion acknowledges the trial court's reliance on the rule but holds that "(e)rror is not made to appear, because the deed in question was not only unobjected to, but marked as an exhibit by agreement." The opinion does not discuss the merits of the plaintiff's claim and thus implies that by stipulating to the document's admissibility the plaintiff waived the right to dispute the presumption's applicability. Of course there was an incentive to so stipulating, because the plaintiff wanted the document in evidence to prove that it was forged. Putting that aside, however, this portion of the per curiam opinion fails to differentiate between the two aspects of the ancient documents rule discussed above and, in so doing, misconstrues the nature of the claim now being made.
I agree that by stipulating to the document's admissibility the plaintiff waived any right to object to its presence in the record. I dissent from the notion that the stipulation bars any claim that the trial court misused that evidence by erroneously considering it presumptively valid. The plaintiff concedes that the trial court was entitled to consider the deed for what it was worth; she objects only to the trial court's overestimation of the deed's evidentiary value.
The claim that this deed is presumptively valid as an ancient document was made by the defendant, the party to benefit, after the trial but before the court made its findings, and the plaintiff disputed it. Thus the trial court was given a fair opportunity to consider, evaluate, and rule on the question, and it erred when it did so. This Court has a duty to acknowledge the error and right the wrong, but rather than do so the per curiam opinion holds that the trial court should not be put in error either because the plaintiff's attorney failed to make an irrelevant objection or failed...
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