McCleery v. McCleery

• Decision Date: 26 April 1917
• Docket Number: 1 Div. 951
• Citation: 200 Ala. 4,75 So. 316
• Parties: McCLEERY v. McCLEERY.
• Court: Alabama Supreme Court

75 So. 316

200 Ala. 4

McCLEERY v. McCLEERY.

1 Div. 951

Supreme Court of Alabama

April 26, 1917

Appeal from Circuit Court, Mobile County; Samuel B. Browne, Judge.

Action by Robert J. McCleery against William H. McCleery. From judgment for defendant, plaintiff appeals. Reversed and remanded.

Hogan &amp Steele, of Mobile, for appellant.

Sullivan & Stallworth, of Mobile, for appellee.

McCLELLAN J.

Statutory ejectment, brought by Robert J. McCleery, appellant, against William H. McCleery, appellee. The property in question is a residence lot in Mobile, These parties are brothers; children of Robert McCleery and his wife, Mary J. McCleery, both of whom were dead when this action was instituted. The property belonged to the father in his lifetime; was his homestead. The plaintiff (appellant) claims title through a conveyance of the property made to him by his parents in 1903. The defendant (appellee) claims (according to the opening statement of his counsel) title through a conveyance to him from their mother; she having derived her title through a conveyance by her husband, the father of these parties. Upon the conclusion of the evidence introduced by the plaintiff the court granted the defendant's motion to exclude all of the evidence on the theory that the plaintiff had failed to discharge his obligation to make out a prima facie case and, after granting this motion, the court gave the general affirmative charge for the defendant. This court has recently repeatedly reprehended the practice of entertaining, much less granting, a motion to exclude all of the plaintiff's evidence, when there was even a modicum of legal evidence before the jury. McCray v. Sharpe, 188 Ala. 375, 66 So. 441; W.U. Telegraph Co. v. Appleton, 190 Ala. 283, 67 So. 412; L. & N.R.R. Co. v. Bouchard, 190 Ala. 157, 67 So. 265, 268; Athey v. T.C., I. & R. Co., 191 Ala. 646, 68 So. 154.

The instrument of conveyance upon which plaintiff relied to sustain his action was not presented to the court. Its absence was accounted for by evidence to the effect that plaintiff's brother, the defendant, had purposely destroyed the instrument or had intentionally caused its destruction. There was evidence tending to show that the instrument was in form a deed; that it bore the signatures of the father and mother of the plaintiff; that it was a deed that it had been in the possession of the plaintiff, the person named as grantee therein; that the instrument described the dwelling place of his parents, the purported grantors, such premises being the only land owned by them or either of them in Mobile. As will be noted from this summary statement of the evidence and its tendencies, there was no evidence even tending to show that the paper was attested or acknowledged in accordance with the statutory requirements for the effectual conveyance of a homestead in this state. Code, §§ 3355, 3357, 3358, 3361, 4161. In the circumstances disclosed by the stated evidence, the rule of evidence described in the maxim, "Every presumption is made against the wrongdoer" (omnia praesumuntur contra spoliatorem; omnia praesumuntur in odium spoliatoris), was due to be applied with the effect of casting upon the defendant the burden of proof either to disprove his culpability in respect of the destruction of the instrument, or to disprove the effectual execution and delivery of the instrument, which, if it operated to pass title to the plaintiff, was prejudicial to the interest of the defendant either as an heir at law of the common father, or as a successor to the title to the premises. To state but one of many applications of the rule of the maxim: Against a party who has purposely and wrongfully destroyed documentary evidence that the spoliator knows is pertinent and material to the interest of his opponent, whether an action is then pending or not, a...