16 Colo. 13 | Colo. | 1891
This action was brought on a complaint in the nature of a bill in equity to restore a lost deed. Plaintiffs in error and complainants below allege that they are the heirs at law of one Mary A. Thompson, and inter
To the complaint defendants answer, denying that they ever made a deed of conveyance, or ever in any manner conveyed the property described in the complaint, or any part thereof, to said Mary Ann Thompson; or that at the time of her death, or at any time, she ever had any such deed of conveyance; or that such deed was ever deposited with Mary C. Cullen or any other person; or that said deed has been abstracted, carried away or destroyed. They admit that said Mary Ann Thompson, with her husband, Salathiel Thompson, resided in and upon the premises mentioned in the complaint, and enjoyed the use thereof during their life-time, together with the rents and profits thereof; but aver that this occupation and enjoyment of the rents and profits of the premises was by consent of the defend» ants in consideration of love and affection which they bore to them as their parents. From the foregoing it will be seen that the issue in the court below was whether or not the defendants had ever executed a deed of conveyance of the premises to Mary Ann Thompson. The cause was tried to the court in the first instance, and, at the time being unable to reach a conclusion, the court directed the trial of the issue to a jury, to whom was submitted the following questions: “First. State whether, on December 7, 1885, . there was in existence a deed conveying in fee all the north one-third of lot No. 11 in block No. 2 in the west division of the city of Denver, in Arapahoe county, Colorado, from William N. Thompson and George A. Thompson to Mary Ann Thompson. Second. If such a deed was in existence, state whether it has been delivered by the grantors to the grantee, Mary Ann Thompson.”
The jury answered both of these questions in the affirmative. The court thereupon, notwithstanding the verdict, entered judgment in favor of the defendants, and dismissed the complaint. To reverse this action of the court this writ of error is prosecuted. The errors assigned are that
Plaintiffs in error urge: First, that the findings of the jury on the issues of fact were binding on the judge; second, that the evidence was sufficient to entitle them to a decree. Upon the first proposition we are inclined to think that the law in 'this state is well established.
In Abbott v. Monti, 3 Colo. 562, it is said: “ Whether the chancellor shall direct.or refuse an issue rests wholly in his discretion, and we fail to discover any valid reason why it should not so rest. If an issue be directed, the verdict of the jury thereon is not binding upon the chancellor’s conscience. He is not only at liberty to disregard it, but it is his duty to decide the cause according to the dictates of his own judgment, and the convictions of his own conscience. In an action at law, the verdict of the jury is Of higher and more solemn import. It is the foundation upon which the judgment of the court must rest.
“ In a suit in equity, the verdict is not necessarily the foundation of the decree. It is merely incidental, and may be, and, if the chancellor’s conscience is not satisfied with it, must be, wholly unheeded.”
The same doctrine is laid down in McGan v. O’Neil, 5 Colo. 58; Hall v. Linn, 8 Colo. 264; Kirtley v. Mining Co., id. 279; Tabor v. Sullivan, 12 Colo. 136.
Accepting, then, the doctrine in this, state to be that the verdict of the jury in such a case is not binding upon the chancellor, the sole question remaining for consideration is: “Was the evidence sufficient to warrant a decree as prayed for by the complainants, or was it insufficient, and the court therefore warranted in dismissing the complaint, and rendering judgment accordingly, notwithstanding the findings of the jury? ” We think it may be said that if the court had accepted the verdict of the’ jury, and entered judgment in accordance with such verdict, we should not have disturbed such judgment; but it does not follow
There is some conflict in the testimony of the witnesses on behalf of the plaintiffs and defendants. The two defendants positively swear that they never executed the deed to the property, as claimed by the plaintiffs; and, in opposition to this positive assertion of the two defendants, the testimony on the part of the plaintiffs’ witnesses. is not very definite and certain.
The testimony, of Mary C. Cullen is to the effect that she received several deeds with other papers from her sister, Mrs. Speed, and was told that they pertained to the estate of Mary Ann Thompson. She never examined the deeds or compared them with the numbers of the lots; did not know what lots they had reference to, and did not know even the number of the home place, but that she noticed that the deeds were signed by "William and George,— recognized the handwriting. In her cross-examination she says: “ I saw the deed from defendants to mother among the papers left in my charge by Mrs. Speed. Can’t remember how many deeds there were. Know they were deeds with brothers’ names to them, because I recognized the handwriting. Do not remember the notary; but know it was a deed by the shape it was in. Do not remember if the face of the deed was blank like Exhibit A. All I do remember is their names inside, both together,— down here somewhere.”
Mrs. Speed claims that she saw the deed purporting to convey the property to her mother. She does not give the language of the deed, or its date, or its manner of execution, but in an indefinite way testifies positively that she saw the deed to this property. Her testimony, however, was by deposition, and that of the other witnesses was before the court.
There is no reason given why this deed, if in existence, was not placed upon the record in the life-time of Salathiel Thompson or Mary Ann Thompson. There is no conversation detailed by any of the witnesses on the part of the
Under this rule we can readily see how the chancellor trying the cause, having before him the witnesses and the depositions, and twice having heard all the testimony, could readily say that the existence of the alleged lost instrument, notwithstanding the finding of the jury, was not sufficiently established by the testimony. The defendants’ testimony, excepting so far as it conflicts with that of Mrs. Speed and Mrs. Cullen, stands entirely unimpeaehed. They positively swear that they never executed the instrument, and never intended in any manner or form to part with the title; and in reality, there seems to have been no necessity for their doing so, inasmuch as they, in consideration of the relation of parents and sons, permitted the father and mother to enjoy during their life-time the possession and rents and profits of the property. This, coupled with the failure to record the deed, and the inability of any of the witnesses who .are interested in establishing the existence of the deed to satisfactorily prove that they had ever examined the deed to ascertain whether or not it contained an accurate description of the premises, and the additional failure of Mrs. Cullen to deliver the deed of the property to the administrator, and the fact that there were several deeds in existence pertaining to the estate, and one in par
Heed and Bissell, 00., concur.
For the reasons stated in the foregoing opinion the judgment is affirmed.
Affirmed.