Barras v. Barras

191 Mich. 473 | Mich. | 1916

Brooke, J.

(after stating the facts). The burden of proof, in this cause is, of course, upon the plaintiff. Opposed to his testimony as to the contents of the paper which was destroyed is that of his mother, brother, and sister. Assuming the witnesses to be of equal credibility, it is plain that plaintiff has failed to establish his claim by a preponderance of the testimony. The learned circuit judge who saw and heard the witnesses was convinced by their manner and deportment that the defendants’ version of the matter was entitled to credence. Under such circumstances we have said:

“Much weight should ordinarily be given to the conclusion reached by the trial judge, who has had the opportunity of seeing and hearing the witnesses.” Grand Lodge A. O. U. W. v. Brown, 160 Mich. 437 (125 N. W. 400).

It is asserted by counsel for appellant that the destruction of documentary evidence, which in this case is admitted, raises a presumption that its contents were what is alleged by the other party. To this proposition appellant cites 1 Jones on Evidence, § 18, and 1 Wigmore on Evidence, § 291, and various authorities from other States. The trouble with the proposition advanced by appellant is not with the principle, but with its application to the facts in the case under consideration. If the evidence introduced on behalf of defendants is believed — and it was believed by the learned circuit judge — then the paper destroyed was an absolute nullity, a printed blank conveyance with neither grantor, grantee, consideration, nor description, containing in writing only the signature of defendant Frances E. Barras. Such a paper could not legally have been given life by Edwin P. Barras, even if Mrs. Frances E. Barras gave him oral authority to fill it in. Newton v. McKay, 29 Mich. 1; Lindsley v. Lamb, 34 Mich. 509; and Maynard v. Davis, 127 Mich. 571 (86 N. W. 1051).

According to the testimony of defendant Frances E. Barras it was agreed between her and her husband that the instrument, whatever it was, should or might be destroyed by her upon her return from Chicago. This testimony is not controverted, although complainant gave evidence to the effect that he heard no such agreement between his father and mother at the time the paper was signed.

It is urged on behalf of appellant that the course of dealing indulged in by Edwin P. Barras with reference to the lands in question as evidenced by his correspondence is convincing proof of the fact that he claimed to be the beneficial owner thereof, and exercised an owner’s dominion thereover. An examination of the entire record upon this point convinces us that Edwin P. Barras dealt with the lands after 1891 entirely as agent for his wife and for Mr. Ross, his brother-in-law, who owned an undivided interest in the same. During the 10 years which elapsed between the time when the paper was signed by his wife and his death, Edwin P. Barras doubtless could have secured from his wife a valid conveyance of said lands. He appears, however, to have been content to permit the legal title to rest in his wife, where it had been for upwards of a quarter of a century. •

The lands and interests therein involved in this cause appear to have been purchased with money furnished in part by Mr. Ross, a brother-in-law of Edwin P. Barras, and in a small part with money furnished by defendant Frances E. Barras. The lands were selected by Edwin P. Barras, and for his services an undivided interest was, at his request, deeded to his wife, defendant Frances E. Barras. Under such circumstances the consideration having been paid by him, and the title taken in her, no trust can result. The statute (section 8835, 3 Comp. Laws [3 Comp. Laws 1915, § 11571]) forbids it. See, also, Barnes v. Munro, 95 Mich. 612 (55 N. W. 431); Winans v. Winans’ Estate, 99 Mich. 74 (57 N. W. 1088); Wipfler v. Wipfler, 153 Mich. 18 (116 N. W. 544, 16 L. R. A. [N. S.] 941).

The decree will stand affirmed, with costs to appellees.

Stone, C. J., and Kuhn, Ostrander, Moore, Steere, and Person, JJ., concurred. Bird, J., did not sit.