| Mich. | Oct 16, 1872
The newly discovered evidence is merely cumulative to that given in the original cause, and from the very nature of the cause itself, and the answer of the defendants, the fact of furnishing the money for the purchase of the land must necessarily have been brought to the attention of the petitioner; as this is the very ground set up by the answer, and was an affirmative fact, constituting said defendant’s case, and the burden of proving it rested upon him. From the very nature of the case he ought to have known then as much as he now knows of the means of proving it; his son, Francis D., one of the defendants, gave evidence of it, and his counsel chose to rest the case upon that evidence.
Very clearly there could have been nothing in the nature of diligence in finding or producing the witnesses to the fact. The counsel for the petitioner virtually admits this, and places the case mainly upon the ground that petitioner has recently discovered evidence that his son,
But the fact is by no means established by the evidence presented. The affidavit of the register of deeds that Francis D. appeared by certain recorded deeds, which he mentions, to be the owner of certain lands — without naming any grantor — when considered in connection with the counter affidavits, showing that by examinations of the records no real estate of Francis D. could be found, except tax-titles and such other real estate as was incumbered, should be regarded as of but little force, since it would be fully sustained if resting upon tax-titles merely, which, though such deeds are made prima facie evidence of title, are always liable to be invalidated by proof of irregularities, and are therefore of little value in satisfying an execution.
There is no ground upon which the petition could be granted which would not be' of dangerous precedent in other cases, and tend to weaken confidence in judicial decrees.
The application must be denied, with costs.