Lindenberger v. Hurlburt ( 1867 )

Opinion op the Court by

Judge Peters :

The first question raised by appellants’ counsel is as. to the propriety of the ruling of the court below in refusing an instruction asked by appellants to the effect that the lease from Wilkerson to ITurlburt conferred no right upon appellees to maintain this action, and Section 15, chapter 24, 1 Jtt. S. 280-1, is relied upon to sustain that position. As it is insisted that there is no proof that appellees’ lease was "lodged for record” and recorded prior to the execution of the lease to appellants by Wilkerson the lessor of both parties. A sufficient answer to that objection is found in Sec. 24 of the same chapter, Ibd. 283, which makes it the duty of the clerk of each county court to record all instruments in writing embraced in any section of said chapter which shall be lodged for record properly certified. Or which shall be acknowledged, or proved before him as required by law. The lease of appellees was acknowledged before the clerk of the county court in which the land was located, after which the law made it his duty to record it without special or further directions from either party, especially as the tax was paid and for all purposes of constructive notice, it must be treated as recorded. In the next place, it is insisted that the court below erred in refusing to let Wilkerson, the lessor, testify in behalf of appellants. In his lease to them, he covenants to kep them in quiet possssion of the premises for the term for which they were leased which was thirty-five years. The lease to appellees .contains no such covenant, consequently his interest was not equipoised, but preponderated in favor of appellants who offered him as witness, indeed it is not very certain whether the judgment of proceedings in this case might not be evidence gainst him in an action by appellants against him for a breach of his warranty to keep them in quiet possession,- but whether that be so or not, he had a direct interest on the side for which he was offered to testify, and was therefore incompetent.

There remains but one other objection to the judgment deemed necessary to be noticed, and that is to instruction No. 2, which is as follows: “That fraud or forgery is not to be presumed, but must be proved.” If by that instruction the jury were to understand that fraud, or forgery must b.e proved by direct and positive testimony, and could not be inferred from the proof of facts, and circumstances usually, or universally attendant on their commission, or as any other facts may be established, the instruction would be misleading, and erroneous. But we do not so understand the ' instruction, and do not suppose the jury so understood it. The proof of what Hurlburt said to young Wilkerson and others was admitted as evidence on the issue of fraud, and the whole of that evidence .was before the jury. Hence the meaning and scope of said instruction is, and must have been so understood by the jury, that fraud or forgery cannot be presumed, or assumed without proof, but the existence of one or both may be established as other facts are established by competent evidence. And so understood, it could not be objectionable.

Harlan & Harlan, for appellants. Underwood, for appellees.

Bor the reasons already stated the third instruction asked by appellants should not have been given.

Wherefore, the judgment is affirmed.