Serles v. Serles

• Decision Date: 26 June 1899
• Citation: 57 P. 634,35 Or. 289
• Parties: SERLES v. SERLES et al.
• Court: Oregon Supreme Court

57 P. 634

35 Or. 289

SERLES v. SERLES et al.

Supreme Court of Oregon

June 26, 1899

Appeal from circuit court, Union county; Robert Eakin, Judge.

Action by W.L. Serles against Clara Serles and others. There was a judgment for plaintiff, and defendants appeal. Remanded.

This is an action to recover damages for trespass in detaching and removing a dwelling house from the realty of the plaintiff. The verdict of the jury was for plaintiff in the sum of $400 and against the defendants Serles and Zuber, and, judgment having been entered thereon, they appeal. At the trial of the cause plaintiff offered in evidence the record of a deed to the real property upon which the dwelling was situate showing title in him, to which an objection was interposed upon the ground that plaintiff's title to said real property was denied by the answer. This was overruled, and the record admitted. There was further testimony tending to show that the defendants, and each of them, were instrumental in the removal of the house from plaintiff's lot to another locality; that the value of the house was about $400 that plaintiff's father had collected the rents thereon; and that the lot was damaged by the removal in the sum of $25. Upon this evidence the plaintiff rested his case, and the defendants moved for a nonsuit, which was disallowed. Thereupon the defendants offered evidence tending to show that the defendant Clara Serles was the wife of A.J. Serles, now deceased, the father of plaintiff, and that the house in question was constructed while they were living together, but with Clara's money; that the understanding between them was that the house should be and remain her sole property, notwithstanding the title to the lot stood in the name of plaintiff, and that upon this understanding Clara allowed and permitted her means to be used and employed in its construction; and that she was the owner thereof. This, together with other testimony, showing admissions of the deceased, Serles, to the same purpose, was introduced, and constituted the principal evidence upon the part of the defendants. After the rendition of the verdict, the defendants interposed a motion to set it aside, and for a new trial, based upon several grounds: First, that of newly-discovered evidence; second, excessive damages; and, third, that the evidence was insufficient to warrant the verdict,--that the verdict is against the evidence, is not justified thereby, and is contrary to law. This motion was overruled, the court saying: "The question of whether the verdict is a proper one upon the evidence is not now involved, only to the extent as to whether there was any evidence to support it, and there is no doubt that there was,and the court cannot review their decision upon the preponderance of the evidence."

F.S. Ivanhoe, for appellants.

J.M. Carroll, for respondent.

WOLVERTON, C.J. (after stating the facts).

It is first insisted that, as there was a denial of title, it became necessary for the plaintiff to prove ownership, and that, in order to prove title by deed, it was necessary to show its delivery. But a delivery may be inferred from circumstances. Thus, the signing, attested by witnesses, the acknowledgment of the grantor, and the recording of the deed have been considered full prima facie evidence of delivery. Rigler v. Cloud, 14 Pa.St. 361; Jackson v. Perkins, 2 Wend. 308; Younge v. Guilbeau, 3 Wall. 636. It was entirely proper, under section 3028, Hill's Ann. Laws Or., to admit the record of the deed in evidence. That section provides that a record of a conveyance, duly recorded, or a transcript thereof, duly certified by the county clerk, may be read in evidence in any court of this state, but the effect of such evidence may be rebutted by competent testimony. This view of the law is sustained by Stanley v. Smith, 15 Or. 505, 16 P. 174. The objection to the record, as shown by the bill of exceptions, is that the alleged title to said real property in the plaintiff is denied by defendants; but it is now urged that the record of the deed is not in itself evidence of delivery, and therefore that the court erred in admitting it. Whether it was evidence of the delivery of the deed or not, the record was competent to show its execution and acknowledgment, if for no other purpose. The theory upon which the plaintiff proceeds is that, the title to the lot being in him, the title to the house was also in him, because, being attached to the lot, it was considered to be real property; and this must be conceded, unless rebutted in some way. It follows, therefore, that the record was rightly admitted for the purpose of showing title; and, inasmuch as there was sufficient evidence upon which to put the case to the jury, there was no error in overruling the motion for nonsuit.

It is strenuously urged, however, that the court below decided the motion for a new trial upon an erroneous principle of law, in this: That it was governed, as is shown by its written opinion, by the idea that, if there was any evidence in the record to support the verdict, it was without power to disturb the same or set it aside; whereas, it is insisted that it is the duty of the court, in the consideration of the motion for a new trial, based upon the insufficiency of the evidence, to weigh all the evidence submitted to the jury, and if, upon the whole case, the verdict appears to be against the weight of evidence and is manifestly unjust, to allow the motion. The trial judge seems to have assimilated the ground for granting a new trial to that which is proper in support of a motion for a nonsuit, and hence his conclusion that, if there was any evidence to support the verdict, it was his duty to uphold it. It is a rule of law, well established in this jurisdiction, that a motion for a nonsuit is in the nature of a demurrer to the evidence, and it not only admits all that the evidence proves, but all inferences that might be legitimately drawn therefrom tending to prove a fact under the issues; and, if there is any evidence offered from which such an inference could be drawn, it is the duty of the court to permit it to go to the jury, as the motion is a test of the competency of the evidence to prove the fact to which it is directed. And the question is, upon such motion, whether there is any evidence tending to prove the material allegation upon which the cause of action is based, and this is one of law. But whether a given amount of evidence is sufficient to sustain an allegation is a question of fact for the jury; so that, if there is any evidence tending to prove a given fact, it is the duty of the court, upon the motion for nonsuit, to permit it to go to the jury, and to take their verdict touching it. Vanbebber v. Plunkett, 26 Or. 562, 38 P. 707, and cases therein cited.

Under the statute (Hill's Ann.Laws Or. § 235, subd. 6), the court is authorized to set aside a verdict and grant a new trial for "insufficiency of the evidence to justify the verdict or other decision, or that it is against law." This statute does not appear to have received any direct construction by this court; but there are authorities elsewhere pertinent to the inquiry, and they leave no doubt but that, in passing upon the sufficiency of the evidence to support the verdict, the trial court is authorized to weigh and consider all the evidence which has been submitted to the jury, and, if it is ascertained that the verdict is against the clear weight thereof, or is one that is manifestly unjust or that reasonable men would not adopt or return, to set it aside and grant a new trial. A similar statute has received express construction by the supreme...