Black v. Black , 38 Ala. 111 ( 1861 )

A. J. WALKER, C. J.

The motion to suppress the 'deposition of Gideon Leverett was made upon the ground of his failure to answer a question propounded by the appellant. The question is as follows : “ If you say a deed was executed, tell everything that was done, so that the court may know what you mean when you say, a deed was executed.” To this the witness answers, as appears from the transcript: “I refer to my answers made to the direct interrogatories what know deed of trust or gift, and I hope the court will understand what'I mean or know about it.” It is evident that there is some imperfection in taking down the answer of the witness ; but we think it may fairly be understood as referring to,the answers to the direct interrogatories for such knowledge responsive to the question as he had. On looking to the answers to the interrogatories, we find a statement of -many things pertaining to the execution of the deed; and those things, the answer in question, fairly interpreted,’says, constituted the sum of his knowledge on the subject. We do not feel authorized to pronounce the answer so evasive, that the deposition ought to be suppressed ; and -although it may be inconvenient, sometimes, for a witness to refer to some other part of a deposition Lor Lis answer to a question, that is not a fatal objection. Indeed, it is an established practice, to refuse to suppress a deposition on account of a failure to answer a question, if -the facts sought to be elicited can be ascertained from other parts of the deposition, or are immaterial. Spence v. Mitchell, 9 Ala. 744; Gibson v. Goldthwaite, 7 Ala. 281; Buckley v. Cunningham, 84 Ala. 69. We decide, that there was no error in overruling the motion to suppress the deposition.

We entertain no doubt that the rulings of the chancellor . upon the different exceptions to evidence, so far as they could possibly influence the result of this case, were'correct. It is not necessary that we should go into an examination of them.

The basis,-upon which the complainants’ equity rests, is, -.that the title to ascertain negro woman was by deed vested in trustees, for the separate use of the complainants’ mother -■••during her life-time, with a remainder over, freed from the ¿trust,’ to her children. The appellant alone assails this fear ture of the bill, and he alone appeals, and assigns error. CJoncedisig for’ the purpose of our argument that the appellant’s answer has the effect of casting the burden upon the complainants of sustaining the allegations of their bill by ¡two witnesses, or by one with corroborating circumstances, ■we must, nevertheless, decide that the bill is sustained by '¿heffestimony, The credibility of the complainants’ most material witness, Bfideon Leverett, is assailed upon the ground that its different parts are conflicting; that it conflicts with an affidavit, at one time made by the witness, as to the date of the deed, and that it contains statements inconsistent with the testimony of two other witnesses. Whatever confusion, or conflict, may exist, is as to dates ; and we do not deem that a very strong objection to the credibility of the witness, .speaking, as he did, of events which transpired more than thirty years before. There is no conflict between tbe different parts of the deposition, nor between the deposition and the bill, as to the contents of the deed. The answer to the third interrogatory does state, that the deed was made to trustees “ for the benefit of Mertila Black, for and during her natural life-time, and ¿hen the trust to cease, and the said negro girl (Critt, or Critty) and her increase to go to the children of said Mertila Black”; while the copy of the deed, as proved in the deposition and alleged in the bill, shows that the convey-: anee was “ for the sole and exclusive use, benefit and advantage of Mertila Black,” and at her death the trust estate to cease, and the negro girl to vest (in the language of the deed) “ in the children of Mertila Black now in being, or which may hereafter be born.” The conflict apparent from this presentation of the answer to the third interrogatory and of the copy of the deed, vanishes when we turn to the interrogatory, and find that it does not question the witness as to the contents of the deed, but asks Mm to whom, and for whose benefit, the deed was made. The answer simply responds t.o the question ; and the response is .not inconsistent with- the contents of the deed, when it is construed in reference to the question.

What is said by .this witness, as-to Ms father going to Upson county, to-deliver the deed, is made harmonious with the rest o£ the deposition, .by understanding, the witness to speak of delivery in its very- common acceptation of giving manual- possession of it.

The witnesses who, it ia contended, controvert some of the statements of this-y/itness, are themselves not in a position entirely above- suspicion.; and as this witness, Gideon Leverett, is sustained by other-.witnesses as to the most material facts -stated by him, we regard him as entitled to our credence, notwithstanding whai-.those other witnesses may have said. The depositions of Abram Leverett, J. J. Holly, William, Page, Henry Pruitt, Joseph Pruitt, and Leroy Gresham, strongly fortify and corroborate the testimony. of Gideon .Leverett. The .testimony of Holly proves the admission by the appellant of the deed, that it was lost, -and had been established as a lost deed in the superior court of Troup county, Georgia; and the record from the superior court of Troup county, Georgia, shows that the deed there- established was the same with the copy, proved by the complainants’ witness, Gideon Leverett. Other corroborations, quite as strong, might be drawn from the testimony of the other witnesses; but it is unnecessary for us to farther amplify. Every fact necessary to sustain the title of the complainants, and to show the defendant’s want of title, was fully made out by two witnesses, or by one with strong corroborating circumstances. The appellant had no interest whatever in the property, upon which he could either defend the original bill, or sustain his cross-hill. There was, therefore, no error of which he can complain.

Affirmed.