55 So. 293 | Ala. | 1911
The report of the former appeal in this case will be found in 158 Ala. 242, 48 South. 581, 21 L. R. A. (N. S.) 755, under thie style of Blount v. Blount.
The theory of the bill is that a deed purporting to be executed by J. G: Blount to J. A. Blount (who died before the bill was filed), recorded in the office of the judge of probate of Etowah county, was never executed by J. G. Blount — was a forgery — and the prayer is that the original instrument be canceled, if to be found, and that the record thereof be expunged.
On the former appeal it was ruled by a divided bench, reversing the ruling of the city court, that the
The solicitors for appellees reargue the question formerly passed upon by this court, viz., that their exceptions ‘to the competency of . J. G. Blount to testify in denial of the execution of the instrument should have been sustained, and not overruled, under the provisions of the statute before cited.
In answer to this insistence of appellees’ solicitors, the solicitors for the appellant take the point that the appeal is on behalf of the complainant alone, and that there is no cross-assignment of errors by appellees, invoking a review here of the asserted, by appellees, erroneous- ruling of the city court, on the last hearing, whereby J. G. Blount was allowed to testify in denial of the execution of the instrument assailed.
A party litigant in whose unqualified favor the decree concludes, and who can take no manner of benefit from a reversal or modification of the decree, cannot appeal therefrom.' — 2 Ency. PI. & Pr. p. 157; 2 Oye. pp.
In Green v. Blackwell, supra, it was said, by way of approving quotation: “Without defining or attempting to classify the orders of the chancery court which may or may not be appealed from, it is certain there can be no appeal from an order by which a party is not aggrieved. The very, object of the appeal is to redress injury. If there be no injury to redress, there can be no appeal; the object of the appeal cannot be attained; it cannot be what it is intended — a redress for an injury.”
Having no cause of complaint whatsoever, a party so completely favored by the decree cannot assign errors.
The sole office of an assignment of errors, in appellate. procedure, is to invite a review of rulings where-from, if sustained, the judgment or decree is changed, modified, or reversed.
There can be no such thing as cross assigning error to affirm a decree or judgment. — 2 Ency. PI. & Pr. p. 921; 1 Words and Phrases, pp. 576, 577. It therefore results that the right of appellees to invoke, in brief alone, review by this court on appeal of asserted (by appellees) erroneous rulings in the reception or rejection of evidence, cannot be determined by the fact that such rulings are not assigned as errors by them.
By Code, § 5955, it is provided: “The Supreme Court has authority — (1) To exercise appellate jurisdiction coextensive with the state, under such restrictions and regulations as are prescribed by law; but in deciding appeals from the chancery court no weight shall be given the decision of the chancellor upon the facts, but the Supreme Court shall weigh the evidence, and give judgment as they deem just.”
In Claflin Co. v. Muscogee Mfg. Co., supra, it was said: “On the issue thus made and thus determined by the chancellor and now presented for our determination anew, the burden of proof throughout was upon the complainant.” (Italics supplied.)
Obviously, such a review, in respect of the facts, leading to the rendition thereon of such “judgment as they (this court) deem just,” comprehends the duty to revise the seasonably taken and appropriately made exceptions, by appellees, to the rejection or reception of evidence.
The propriety vel non, as upon the evidence, of the decree assailed, is determinable, upon the legal evidence noted on the submission in the court of equity; and to ascertain what the legal evidence in the cause appealed is, this court must take account of and decide appropriately made exceptions to the reception or rejection of evidence noted on the submission in the primary court. It is therefore ruled that the exceptions to competency of the testimony of J. G. Blount, denying his execution of the instrument in question, will be considered, with the view to a proper determination by this court of the major inquiry presented by the appeal, namely, whether the decree assailed by appellant is erroneous as upon the legal evidence noted in the cause.
The question of the competency of J. G. Blount, the grantor, to testify in denial of the execution of the instrument, J. A. Blount, the grantee, being dead, was
“The general rule of law is that negative averments in pleading need not be proved. * * * But where the negative allegation involves a charge of fraud, or breach of official duty, and many other violations of trust of a kindred character, the onus is on the party making the charge; for the presumption of law is always in favor of innocence. — 1 Creen. Ev. §§ 78-81, incl.” Stone, J., in Haney v. Conoly, 57 Ala. 179.
The generally similar doctrine was previously announced, though more amply, in Givens v. Tidmore, 8 Ala. 745, 750, 751, Collier, C. J., writing, in this language: “It is the general rule that the party holding the affirmative of the issue must sustain it by proof; but there are some exceptions in which the proposition, though negative in its terms, must be proved by the party who states it. One class of these exceptions, it is said, includes those cases in which the plaintiff grounds Ms right of action upon a negative allegation, and where, of course, the establishment of this negative is an essential element in his case. But, where the subject-matter of the negative averment lies peculiarly within the knowledge of the other party, the averment is taken as true, unless disproved by that party.”
“* * When misconduct or crime is alleged, whether in a criminal or civil suit, whether in a direct proceeding to punish an offender or in some collateral matter, the accused is presumed to be innocent until proven guilty.” — Jones on Ev. § 14; Childs v. Merrill, 66 Vt. 302, 308, 29 Atl. 532; Stevenson v. Gunning’s Estate, 64 Vt. 601, 613, 25 Atl. 697; 16 Cyc. p. 1081.
In Stevenson v. Gunning’s Estate, supra, the Vermont court had to deal with forgery asserted as a defense to a civil action to enforce the payment of a note. The trial court was ruled to have erred in refusing to instruct the jury upon the presumption of imioeence in the premises. The basis of the presumption, its nature, effect, and the means to overturn it, are thus stated by Greenleaf: “As men do not generally violate the Penal Code, the law presumes every man innocent; but some men do transgress it, and therefore evidence is received to repel this presumption. This legal presumption of innocence is to be regarded by the jury, in every case, as matter of evidence, to the benefit of which the party is entitled.” This doctrine was fully approved, by the Supreme Court, in Coffin v. United States, 156 U. S. 432, 459, 460, 15 Sup. Ct. 394, 39 L. Ed. 481, and in Wilcox v. Wilcox, 46 Hun, 32, 40. Its soundness was not reflected upon in Agnew v. United States, 165 U. S. 36, 17 Sup. Ct. 235, 41 L. Ed. 624. In this state the presumption has been declared to be matter of evidence in Newsom’s Case, 107 Ala. 133, 18 South. 206; Amos’ Case, 123 Ala. 50, 26 South. 524; Harris’ Case, 123 Ala.
“The presumption of innocence and of freedom from purposes and conduct immoral applies in civil as well as in criminal cases, and satisfactory evidence is required to establish to the contrary. And when, in the judgment of the jury, the evidence is in equilibrio, the imputation is not established. * * * ' The presumption is evidence only and has its controlling effect as such until overcome by other evidence.” — Wilcox v. Wilcox, 46 Hun, 32, 40. That the presumption is evidentially effective in civil cases, where criminal conduct is imputed, is sustained by many decisions, among which are these: Wilcox v. Wilcox, supra; N. Y. Ferry Co. v. Moore, 18 Abb. N. C. 106, 119; Grant v. Riley, 15 App. Div. 190, 44 N. Y. Supp. 238; Fire Association v. Bank, 54 Vt. 657, 668, 669; Hewlett v. Hewlett, 4 Edw. Ch. 7, 16; Korn v. Schedler, 11 Daly, 234; Russell v. Baptist Union, 73 Ill. 337; Horan v. Weiler, 41 Pa. 470; Stevenson v. Gunning’s Estate, supra; Childs v. Merrill, supra.
Where the presumption of innocence is a factor in a civil proceeding, the evidence necessary, in degree, to repel the presumption,' must be “clear” — must be “satisfactory.” It is not required, in civil cases, that the imputation of wrong, resented by the presumption of innocence, should be refuted "beyond a reasonable doubt as must be done in criminal prosecutions. — Ware v. Jones, 61 Ala. 288, 295; Wilcox v. Wilcox; supra.
In Ware v. Jones, supra, this court, Brickell, C. J., writing, ruled that, where fraud or illegality was im
“Pacts will not be presumed against a deed of conveyance which on its face has all the legal requisites to make it a valid instrument. * * * Instead of that, the rule is that he who would invalidate such a deed must impeach it by affirmative proof.”- — Clements v. Macheboeuf, 92 U. S. 418, 425, 23 L. Ed. 504.
A regular certificate of acknowledgment to a deed, thereby forming “a part of the deed,” will not be impeached for forgery or falsity in a case admitting evidence to impeach it, unless the evidence to that end is clear and convincing, “reaching a high degree of certainty, leaving upon the mind no fair, just doubts.”— Smith v. McGuire, 67 Ala. 34, 37; Barnett v. Proskauer, 62 Ala. 486; 1 Ency. L. & P. pp. 928-932; 1 Cyc. pp. 623, 627; Grider v. Amer. Freehold Land Mort. Co., 99 Ala. 281, 289, 290, 12 South. 775, 42 Am. St. Rep. 58.
Where the witnesses, testifying in the affirmative on the issue of forgery or falsity vel non of the certificate of acknowledgment, are interested, their testimony will be carefully scrutinized; and, “if it is full and direct, it is entitled to the same credit which would he given to the evidence of the other witnesses whose credibility was affected only by reason of interest.” — Barnett v. Proskauer, 62 Ala. 486.
Code 1907, § 3374, reads: “When self-proving, certified copy evidence. — Conveyances or property, real or personal, or of any interest therein, whether absolute or on condition, which are acknowledged or proved according to law, and recorded, may be received in evidence in any court without further proof; and if it appears to the court that the original conveyance has been lost or destroyed, or that the party offering the tran
This statute was subsequently amended at the Special Session, 1909. — Acts Sp. Sess. 1909, p. 14.
After the remandment of this cause, on former appeal, the complainant made an affidavit purporting to conform to the provisions of the statute; the original instrument assailed by the bill being lost or destroyed.
This statute has no application to the cause at bar. This bill seeks the cancellation of a conveyance on the ground that the signature of J. G. Blount thereto was a forgery, and that the certificate of acknowledgment was false, if, indeed, it, too, was not a forgery. The burden of proof and the essential measure of proof in order to carry the burden, in such cases, have been stated before.
In no aspect of the cause was the onus of proof upon the respondents. Their attitude in and relation to the cause of action set forth in the bill was that of defense, purely — that of denial of the charges made by the bill. At no stage of the evidence was there a shifting, from complainant to respondents, of the burden of proof on the issues laid. There was no necessity for the respondents to offer the certified (by the judge of probate)/ copy of the instrument of record in his office. Its cancellation or expurgation from the record was the gist of the bill, and, to that end, an authenticated copy of the record was exhibited with the bill. The issue, to repeat, was: Whether the original of the instrument por
In Kerr v. Freeman, 33 Miss. 92, the bill sought the cancellation of a certain deed on the ground that it was not executed. The essential averment asserted, as appears, a negative. It was insisted that the party averring a negative did not have the burden to establish it. Dealing with this phase of the cause, the court said: “The object of the bill was to cancel this deed. The complainant, when he brought his bill for this purpose, undertook to sustain its allegations. The question was not whether the defendant had a perfect title, or any title at all; but whether this deed, outstanding in the hands of the heirs of Shields, was ever executed by Whitesides. The complainant undertook to show that it never was; and, although it may seem to require of him the proof of a negative, yet it is but the proof of a material allegation, which he has made, and the truth of which must be established before he can claim a decree; otherwise, a bill under this statute would per
If the statute (section 3374) under consideration was given the effect appellant insists it should have, the result would be to clothe a bill, seeking cancellation of an instrument lost or destroyed, supplemented by the character of affidavit described in the statute, with the attributes of a “scire facias to bring a party into court to show cause why his (lost or.destroyed, we interpolate) deeds should not be canceled;” for the burden of proof would be (if the statute was so interpreted) cast upon the defendant to establish the validity of the assailed instrument before the copy of its record could be offered in evidence. Obviously, the statute does not contemplate such a radical change from well-settled procedure, in cases where cancellation of instruments is sought — a change that transposes the burden of proof, and puts the respondent, in such cases, to proof of the validity of his assailed instrument. Besides, the -terms and the general purpose of the statute alike deny its application to causes of the character under review. The evident intent of the statute, in the particular that a record copy of a lost or destroyed deed was denied admission in evidence if the affidavit specified was made, was to deprive the party proposing
The issues being as we have stated, there was no invitation, necessity, or occasion for the introduction by respondents of the copy, from the record, identical with that exhibited with the bill. The bill asserted, in substance, that this instrument, so exhibited in copy, is a forgery; and the respondents, in substance, replied: That is not true. Hence it was well said by the city court, in its opinion: “I do not find, after diligent search of the file, the certified deed of J. G-. Blount to J. A, Blount and which the note of submission shows was offered by respondent and objected to by complainant. In the view I take of this case, it is immaterial, for my conclusions have been reached without reference to the certified copy of said deed, so offered by respondent. To my mind it is not a question as to proving the contents of a lost instrument or conveyance, but the question presented by the record is the forgery vel non of the deed which is made an exhibit to the complainant’s bill. The complainant is the actor in the premises.”
Laboring under no necessity to introduce the certified copy — asserting no affirmative right thereunder — - there was no occasion, on respondents’ part, to offer it in evidence, and, if they offered it, the acceptance or rejection of it as offered by them has no effect upon the solution of the issues made upon the bill; and hence the matter was, as the court said, wholly immaterial.
All of the Justices concur in the opinion that the statute before quoted has no application where the bill
After a careful review and thorough consideration of the entire legal evidence — including that of J. G. Blount in denial of his execution of the instrument, a review and consideration on which the whole evidence was read to the-full court in consultation — the decree appealed from is affirmed.
Affirmed.
