Orr v. Clark

• Citation: 62 Vt. 136, 19 A. 929
• Case Date: April 22, 1890
• Court: United States State Supreme Court of Vermont

19 A. 929
62 Vt. 136

ORR
v.
CLARK et al.

Supreme Court of Vermont Rutland.

April 22, 1890.

Appeal from chancery court, Rutland county; POWERS, Chancellor.

H. A. Harman, for orator. Geo. E. Lawrence, for defendants.

TYLER, J. The case is this: The land in controversy was owned in fee by Alzina J. Whitcomb, who died intestate December 15, 1874. Her husband, Austin S. Whitcomb, died May 14, 1887. Their only children and heirs were Alta J. Clark and Ella T. Orr, who, soon after their mother's decease, executed between themselves a written instrument by which they agreed that their father, the said Whitcomb, should have the occupation and use of said land during his life, and at his decease the survivor of the sisters should take the fee. Alta J. was the wife of defendant Clark, and Ella T. was the wife of Horace J. Orr, and the mother of the oratrix. The husbands joined in the execution of the agreement, which was signed, sealed, witnessed, acknowledged, and left for safekeeping with one Randall, a justice of the peace, who drew it up. Subsequently, Mrs. Clark, with her sister's knowledge and consent, took the instrument from Randall's possession, and kept it herself until her death, in December, 1883. Her sister died in February, 1886. After the death of his wife, defendant Clark admitted to Whitcomb that he had the written instrument, and promised to deliver it to him, but he never did deliver it; and in his answer in this suit, and at the trial before the master, he denied all knowledge of its execution and existence. No one but the defendant has seen the instrument since the death of Mrs. Clark. Whitcomb occupied the land until his death, and since that time it has been occupied by the oratrix, who is the sole heir of Mrs. Orr. The oratrix now claims title in fee to the land in the right of her mother, while defendant Hulet claims title to an undivided half thereof by virtue of a deed from defendant Clark, who claimed title in the right of his wife. The master reports that he is unable to find what the language of the instrument was, and whether or not it was sufficient in law, upon Alta's decease, to convey her interest in the land to her sister; but he does find that the instrument was made with that intent and purpose on the part of both sisters, in the event that Ella survived Alta. It also appears that defendant Clark, if he has not destroyed the writing, now withholds it, having repeatedly admitted since his wife's decease that it was in his possession.

The oratrix now invokes the application of the maxim, omnia proesumuntur contra spoliatorem, and cites, among other cases, Armory v. Delamirie, 1 Strange, 505. In that case a person in a humble station in life, having found a jewel, took it to the shop of a goldsmith to inquire its value, who, having got the jewel into his possession, under pretense of weighing it, took out the stone, and, on the finder refusing to accept a small sum for it, returned to him the empty socket. An action of trover having been brought to recover damages for the detention of the stone, the jury were directed that, unless the defendant produced the jewel, and thereby showed it not to be of the finest water, they should presume the strongest against him, and make the value of the best jewel that would fit the socket the measure of their damages. This maxim has often been applied in cases where written instruments of evidence have been destroyed or suppressed. This not only raises a presumption that the evidence suppressed would, if produced, militate

19 A. 930

against the party suppressing it, but procures more ready admission to the evidence of the opposite side. 2 Best, Ev. 412. "If," says Lord...