104 Va. 343 | Va. | 1905
delivered the opinion of the court.
The appellant, complainant in the court below, filed his hill in this cause alleging ownership of a boundary of about 40 acres of land situated on MeOlure creelc, in Dickenson county, and sought to enjoin, and did enjoin, appellees from committing divers trespasses upon said land. To this bill appellees, the widow and children of John 0. ISTeece, deceased, filed their answer, asked to be treated as .a cross-bill, charging that they were the owners of the land in question; that John C. ISTeece in his lifetime had obtained from appellant a title bond for the •land, and had been put in possession thereof, and had made valuable, improvements thereon, etc., the prayer of the cross-bill being that appellant be required to convey to appellees the said land.
The answer of appellant to the cross-bill denied its allegations, but admitted that appellant did verbally agree to let John C. ISTeece have a small piece of land for a house seat; that John C. ISTeece built a house upon said small piece of land, which house and other improvements in the way of buildings were afterwards burned, whereupon said verbal agreement was annulled by like verbal agreement, and possession of said small piece of land was delivered back to appellant.
Dpon the pleadings and depositions taken on behalf of both appellant and appellees, the Circuit Court made its decree, appealed from, dissolving the injunction theretofore awarded, and requiring appellant to convey to appellees the land in question.
The sole question presented, therefore, is whether or not the evidence in the record justifies the decree complained of.
The facts disclosed are as follows: During the civil war,
In the mean time John Cl Ueece had bought another tract of land, known as the Keel and Turner land, on the opposite side of the creek from the land in controversy, and when his house was burned he moved into a small house on this Keel and Turner tract, but continued in the actual possession of the land
Throughout the entire period 'that the land in controversy was occupied by John 0. Neeee, his right thereto was never questioned by appellant. On the contrary, it was surveyed at the instance of John 0. Neece in the presence of appellant, with the view of a deed therefor being made to. him, and appellant was heard to say repeatedly, in the presence of disinterested persons who have testified in this case, that he was ready to make the deed to John 0. NeeCe, his brother, at any time, and on one or two occasions the land was pointed out in appellant’s presence as the land he was ready to convey to John C. Neece at any time. The land was recognized by all the neighbors as being the land of John 0. Keece. Tie sold timber off the land to the same saw-milling firm operating near by appellant’s home, to whom appellant at the same time sold timber from his own land, and the timber was cut and hauled by John O. Neece from the land in controversy to the saw-mill, and his right to the timber so cut and delivered was never questioned by appellant, although he knew of it, and was a frequent visr itor to the saw-mill.
Nine days after the death of John 0. Neece, appellant appeared with what purported to be a will of John O. Neece, the existence of which was known only to himself and one other,
Belle Keece, a daughter, and Margaret Keece, the widow, of John 0. Keece, testify that John O. Keece, had a title bond for the land from appellant, and the first named witness says that her father so stated in the presence of appellant, to which statement he made no dissent These witnesses are- corroborated touching the title bond by a witness introduced on behalf of appellant. Margaret Keece, the widow, and Louisa Hol-brook, another, daughter of John 0. Keece, testify that while preparations were being made for his burial, they were looking over some title papers found in his clothes, when appellant appeared, took possession of all these papers, except one, and also of the clothes containing other title papers of the de
This testimony touching the conduct of appellant concerning the title papers held by John O. Keece is uncontroverted by appellant himself, who testified on his own behalf touching other matters in dispute.
As contended for by appellant, an executor named in a valid will has the right to the custody of the title papers belonging to his testator; but there is neither law nor reason for the parties in interest being denied the right to see and examine such papers.
In general, a party’s conduct, so far as it indicates his own belief in the weakness of his cause, may be used against him as an admission, subject of course to any explanations he may be able to make removing that significance from his conduct. In particular, falsehood is a badge of fraud, and a case which is sought to be supported by means of deception may prima, facie, until the contrary be shown, be taken to be a bad and dishonest case; and this applies equally to civil and criminal eases ... so also the attempt to suppress evidence by intimidating or removing witnesses is admissible as having a tendency to show consciousness in him of title in the opponent. “Concealing or destroying evidential material is likewise admissible; in particular the destruction (spoliation) of documents as evidence of an admission that their contents are as alleged by the opponents.” 1 Gxeenleaf Ev. (16 Ed.), sec. 195, .at p. 325.
The circumstances proven, aside from the direct proof on the subject, warrant the presumption that when Jno. O. Keece returned from West Virginia and found appellant in possession of this land with a quit claim deed therefor from an outsider, for which no consideration whatever was paid, a dispute arose between them as to their rights, and that, by way of a settlement of the dispute, appellant agreed to and did execute to Jno. 0. Keece a title bond for the 40-acre parcel here in question.
. But if it could be conceded, even for the sake of argument, that the evidence is insufficient to establish the fact that John
It is not controverted that improvements amounting in value to $300' or $400, were put upon the land by Jno. O. ISTeece; nor that a division line was run by a competent surveyor at the instance of John O. ISTeece, .and in the presence of appellant, so that “they would know how to make the deed”; nor that on another occasion when appellant, as well as John O. ISTeece, was present, the latter pointed out to a disinterested witness testifying in this case the lines of the 40-acre tract as the land owned by him, and that appellant made no claim whatever to the land. It is clearly proved also by several witnesses that on-several occasions appellant told John O. ISTeece, in the presence of these witnesses, that he was ready to make him a deed for the land at any time, without a suggestion that he had not been fully paid therefor, and whereby it necessarily follows that the consideration for the land had been fully paid.
In addition to the facts and circumstances stated as going to discredit appellant and at least one of his principal witnesses in this cause, (E. 13. Jessee,) the appellant stands impeached in this record by the testimony of five reputable citizens of Dickenson county.
The claim set up by appellant, that the land he was to let John O. ISTeece have in exchange for. five or six acres of the Keel and Turner tract, afterwards rescinded, was the 40-acre tract in controversy and included John C. ISTeece’s house site, was clearly an afterthought, absurd on its face, and plainly had its origin in a fraudulent design to take advantage of the death of John 0. ISTeece, and a supposed inability on the part of his widow and children to defend their right to the land.
We are of opinion that the proofs in the cause fully justify the decree of the Circuit Court, and therefore it is affirmed.
Affirmed.