Lyon v. Bolling

14 Ala. 753 | Ala. | 1848

COLLIER, C. J.

This cause was here at a previous term, and the decision then made settles the equity of the bill, at least to the extent of the judgments which McVoy recovered against T. R. Bolling, (9 Ala. Rep. 463 ;) and we are now to consider whether the complainant has sustained his case by proof.

The testimony adduced to establish the existence of the judgments described in the bill was clearly incompetent. These judgments, and the proceedings in the causes in which they were rendered, if they ever existed, were prima facie matters of record, and could only be proved by the production of the record itself, or by a certified or examined copy; if they were lost or destroyed, the fact should have been shown, and copies substituted upon proper evidence, or perhaps the substance of them might be proved as testimony in the cause. See Adams v. Betts, 1 Watts Rep. 428 ; 3 Phil. Ev. C. & H’s Notes, 1067, et seq. In the Inhab. of Stockbridge v. The Inhab. of West Stockbridge, 12 Mass. Rep. 400, it was said, that records generally are proved by inspection, or by copies properly authenticated; but if there be sufficient proof of loss or destruction of a record, much inferior evidence of its contents may be admitted; and it cannot be doubted that parol evidence is competent to prove the existence and loss of a record. See also, 3 Phil. Ev. C. & H’s Notes, 1058 to 1061.

The copy offered in evidence must be a copy of the original, and from the clerk of the court which rendered the judgment. 3 Phil. Ev. C. & H’s Notes, 1065, 1076, 1240. An examined or sworn copy is in general to be proved such, by one who has compared it with the original. Where however, a witness testified that a certain record of a power of attorney, was a copy of the original made by him, and that the copy produced was a true copy of the record, having been compared with it by himself; it was held, that this was not the case of a copy simply, but the case of a second copy, verified as a true copy of the original; and therefore admissible as secondary evidence. This was considered precisely the same as if the witness had made two copies of the original at the same time, and then compared one of them with the original, and the other with the first copy, which he found correct ; that although the mode by which the second was ascertained to be a true one of the original, may have been more circuitous than that by which the first was found to be correct, yet this consideration only went to the strength, and not to the dignity of the proof. Id.; Winn v. Patterson, 9 Pet. Rep. 663.

In Brewster v. Countryman, 12 Wend. R. 446, a sworn copy of an agreement was produced against the defendant, who had himself destroyed the original. The plaintiff proved that he had requested H to make a copy of the agreement, and the paper offered was in the hand-writing of H; a witness stated, that he had seen the original, and the al-ledged copy was substantially correct. The court thought the authenticating testimony pretty strong, but the testimony of H, whose absence was not accounted for, would be stronger, and that the secondary evidence should not be received. See further as to the admissibility of examined or certified copies, Kerns v. Swope, 2 Watts’ Rep. 75; Garland’s Ex’r v. Goodloe’s Adm’rs, 2 Hayw. Rep. 351; Garwood v. Dennis, 4 Binn. Rep. 314; Baker v. Preston, Gilm. Rep. 235; 3 Phil. Ev. C. & H’s Notes, 1243; Woodward v. Harbin, 1 Ala. 104.

Conceding that the records which were offered by the complainant, were the same that are referred to in his bill, and it may be questioned whether the proof of their authentication was not altogether insufficient. It merely affirms that one of the witnesses to the point was clerk of the circuit court of Mobile from 1837 to 1841, and that the papers exhibited to him by the other witness, as records of that court, “ were issued and filed by him when he was clerk,” “ that they are in the hand-writing, so far as the writing purports to be done by the clerk, of the deponent and his deputies, and he believes that they are the records of that court.” The other witness testifies that he received the record from the present clerk of the circuit court, as the record of the suits to which they relate. The records in respect to which the witnesses speak are doubtless the original papers in the case to which they refer, and are only admissible upon the hypothesis that the final records were not made up. Ansley v. Carlos, 9 Ala. Rep, 973; Brown v. Isbell, 11 Ala. Rep. 1009. Where an objection is made to the decision of an inferior court for the rejection of the original papers, will not a revising tribunal intend, that the clerk of the court from which the papers come, has done his duty, and recorded them within the time prescribed by law, unless the reverse appears ? Again: should not the genuineness of the papers be shown by the testimony of their custodian, the clerk ?

We need not stop to answer these questions, for conceding the papers were sufficiently authenticated, and still it does not appear that the judgments rendered in the suits were produced ; and if they were, it is perfectly clear that the proof did not authorize their admission. It is not pretended that they were certified by the clerk, and neither of the witnesses whose evidence is relied on, testify that they compared them or even heard any one say the papers offered were copies of the entries of record. So that if the original papers in the suits of Me Voy against the complainant, are improperly excluded, the complainant has not been prejudiced ; as his case could not be made out without producing the judgments which he alledged he had paid. Locke v. Winston, 10 Ala. Rep. 849.

It does not appear from the record, that the objection to the defect of proof was not made until the argument of the cause ; and it was certainly competent then, to have urged for the first time the absence of the judgments as a ground why the complainant should be denied the relief he sought. If an objection goes merely to a defect in an exemplification of a record, it should perhaps be made while the evidence is being developed. See Burton v. Pettibone, 5 Yerg. R. 443; 2 Phil. Ev. C. & H’s Notes, 558; 3 Id. 790. But this is not a point in the cause as presented to us.

The answer of T. T. Bolling explicitly denies that his father purchased the land in question of Gazzarn, or that he paid, or is bound to pay, any portion of the purchase money, affirms that the purchase was made upon his own account, and the improvements were paid for with funds provided by him : he also denies all fraud, and declares that resources derived from his own personal employment were entirely adequate to the expenditure. As it respects the purchase, his answer is fully sustained by his co-defendant, Gazzarn, whose answer it is agreed shall be considered as a deposition ; and thus supported, it is not overbalanced by the testimony of Brooks and Perrine, which merely relate declarations or acts of T. R. Bolling when his son was not present. Conceding that these depositioirs are competent evidence, so far as they are explanatory of the declarant’s possession, and still they cannot outweigh the answer of T. T. Bolling, supported as it is by Gazz'am, and the testimony of Fettyplaee and Goodman, as to his means of purchasing and improving the property. Beyond what we have intimated, it is clear that the declarations of the father are are inadmissible, and cannot affect the son. McBride and wife et al. v. Thompson, 8 Ala. Rep. 650.

The testimony of the witnesses for the complainant in respect to the improvements, are not sufficiently potent to override the denial in the answer of T. T. Bolling, that they were made by his father. If the declarations of the latter are placed out of view, the evidence is not inconsistent with the supervision by him of the improvements upon the son’s account. But admit the declarations of the father are competent testimony, are they irreconcileable with the idea that the land was his son’s property, and the former was improving it with means furnished by the father? The remark of T. R. Bolling, that he was erecting buildings upon his land, that he wished to borrow money for that purpose, and that he found it difficult to raise money to pay the workmen as the work progressed, may have been a loose mode of expressing himself, and in view of the positive assertions of the answer upon the subject, and the testimony that the father was restricted in his means, and that the son was engaged in a prosperous business, we strongly incline to regard them as insufficient proof. Besides, it may be asked whether these declarations, although related by several witnesses, are entitled to greater weight than the testimony of one testifying to the same facts, as they all emanate from a single individual, and rest upon his veracity ? If such be the effect of the evidence, the familiar rule, that the testimony of one witness will not overbalance a positive answer responsive to the bill, is decisive of the point.

There can be no pretence that the reason assigned by T. R. Bolling, for the purchase having been made in his son’s name, cannot defeat, or in any manner impair the title of the latter. And the want of punctuality of the father, if admissible evidence under any circumstances, does not tend to establish any point at issue in the present case.

The failure off T. T. Bolling to answer as to the indebtedness of his father to the complainant, cannot be regarded as an admission of the fact. It is not alledged in the bill that this defendant was informed of the payments made by the complainant to McYoy, and it cannot be presumed that he possessed other knowledge or information in respect to them, than the bill affords. The rule, then, “that whatever is specifically averred in a bill, aud not denied in the answer, must be taken as admitted, does not apply.” Thompson v. Carson et al. 1 Porter’s Rep. 257; Kirkmans et al. v. Vanlier, 7 Ala. Rep. 217.

It may be conceded that a father is not allowed to make advancements to his children to the prejudice of his creditors. Patterson v. Campbell, 9 Ala. Rep. 933; Elliott et al. v. Horn et al. 10 Ala. Rep. 348. But he may permit his child to leave the parental homestead, and labor for his own benefit — in such case, the father is supposed to have “emancipated ” the child for the time being, and relinquished all claim to his services, or the earnings of his industry. Nightingale v. Withington, 15 Mass. Rep. 272; Godfrey v. Hays, 6 Ala. Rep. 501; Tillotson v. McCrillis, 11 Verm. Rep. 477; Smith v. Knowlton, 11 N. Hamp. Rep. 191; Wodell v. Coggeshall, 2 Metc. Rep. 89; White v. Henry, 11 Shep. R. 531; Lord v. Poor, 10 Shep. Rep. 569; Shute v. Dorr, 5 Wend. Rep. 204; Benson v. Remington, 2 Mass. Rep. 113; Jenney v. Alden, 12 Mass. Rep. 375; U. S. v. Metr, 2 Watts’ Rep. 406; Eubanks v. Peak, 2 Bail. Rep. 497; Whiting v. Earle, 3 Pick. Rep. 201; Chase v. Smith, 5 Verm. R. 556; Galbraith v. Black, 4 Serg. & R. Rep. 207; Sumner v. Sebee, 3 Greenl. R. 223; Manchester v. Smith, 12 Pick. 113. It is abundantly apparent from the answers and proof, that the father in the present case permitted his son to leave his house and engage in business upon his own account, without attempting to control him in his contracts or in the disbursement of his money. This being the case, it follows, that the father has not yielded up to the son any thing which his creditors can subject in any forum to the payment of their demands.

In respect to the application to the chancellor to open his decree or re-hear the cause, that the complainant may perfect his record evidence, we would remark, that it has been decided that error of judgment, or mistake of counsel as to the pertinency or force of evidence, furnishes no ground for a re-hearing. Baker v. Whiting, 1 Story’s Rep. 218. Nor will a rehearing be granted, because the importance of the testimony has only been discovered since the decree was announced; if the party had it in his power to ascertain its importance before the hearing, and has neglected to obtain it. Prevost v. Gratz, 1 Pet. C. C. Rep. 364. See Daniel v. Mitchell, 1 Story’s Rep. 198; Hinson v. Pickett, 2 Hill’s Ch. Rep. 357; Decarters v. Le Farge, 1 Paige’s Rep. 574. Rehearings in equity, after a decree, are not a matter of right, but rest in the sound discretion of the court. Daniel v. Mitchell, supra; Travis v. Waters, 1 Johns. Ch. Rep. 48; Field v. Schieffelin, 7 Id. 256; Harrison v. Hall, Hop. Rep. 112; Land v. Wickham, 1 Paige’s Rep. 256; and the refusal to grant it cannot be revised on appeal. Rowley v. Benthuysen, 16 Wend. Rep. 369; Rogers v. Hosack, 18 Wend. Rep. 319; Tripp v. Cook, 26 Wend. Rep. 150; Owings v. Worthington, 10 G. & Johns. Rep. 283; Scott v. Crawford, Id. 379; Merriam v. Barton, 14 Verm. Rep. 501. Without stopping to scan with more particularity the motion for a rehearing, or to consider whether the writ of error attempts to bring up the order of the chancellor denying it, we are satisfied if the authorities cited are to be followed, the chancellor exercised his discretion wisely, and his decision cannot be revised. Our conclusion is, that the decree dismissing the bill with costs be affirmed.