Miller v. Miller , 121 Mont. 55 ( 1948 )

The complaint sets forth two causes of action, one to establish a deed and the second to quiet title. The decree of the trial court recites the facts as follows:

"That on or about the 11th day of June, 1935, and prior thereto, the above named plaintiff, Phillip W. Miller, was the owner and in possession of the following described real property, situated in the County of Pondera, State of Montana, to-wit: The South Half (S 1/2) and the Southwest Quarter of the Northwest Quarter (SW 1/4 NW 1/4) of Section Twenty-five (25), Township Twenty-eight (28) North Range One (1) West of the Montana Meridian, Montana.

"That on said 11th day of June, 1935, while the plaintiff was such owner, he made and delivered a Quit Claim Deed conveying said last described real property to the above named defendant, Marie Miller, which said Quit Claim Deed was duly acknowledged, so as to entitle the same to be recorded, and the same was, thereafter on the 20th day of June, 1935, by the above named defendant, Marie Miller, recorded in the Office of the County Clerk and Recorder of Pondera County, Montana, in Book 15 of Deeds, Page 66.

"That on the 20th day of June, 1935, the above named defendant, Marie Miller, made and delivered a Quit Claim deed in writing of said real property to the above named plaintiff, Phillip W. Miller, whereby said Marie Miller reconveyed said real property to said plaintiff and ever since the plaintiff has been and now is in possession of said real property; and ever since has been and now is the owner of said real property.

"That said deed of conveyance made by said Marie Miller to said Phillip W. Miller, was duly acknowledged by said Marie Miller before a notary public, so as to entitle the same to be recorded and the same was delivered to said Phillip W. Miller, but the same was not recorded, and after the delivery of said deed to said Phillip W. Miller, the same was placed in a receptacle and kept therein, but without the knowledge and without the fault of the plaintiff, the said deed of conveyance made and delivered by said Marie Miller, to said Phillip W. Miller, in a manner unknown to the plaintiff became wet, and by reason thereof the paper on which said deed was written deteriorated to such an extent that the same fell apart and a large part of the same was wholly illegible to such an extent that it cannot be ascertained from said deed of conveyance what description was contained therein nor what all of the provisions in said deed consisted of.

"That the defendant has refused and still refuses to execute and deliver another deed of said premises to the plaintiff.

"* * * that the said defendant, Marie Miller, on the 20th day of June, 1935, did make, execute and deliver a deed in writing to the Plaintiff, Phillip W. Miller, whereby said Marie Miller, did convey to said Phillip W. Miller the following described real property, situated in Pondera County, Montana, to-wit: The South Half (S 1/2) and the Southwest Quarter of the Northwest Quarter (SW 1/4 NW 1/4) of section Twenty-five (25), Township Twenty-eight (28) North, Range One (1) West of the Montana Meridian, Montana; and that said deed was duly acknowledged, so as to entitle the same to be recorded in the office of the County Clerk and Recorder of Pondera County, Montana, but that the same, without the fault of said Phillip W. Miller, has been mutilated to such an extent that it cannot be determined from the same that said real property was conveyed by said Marie Miller to said Phillip W. Miller.

"It is further ordered, adjudged, and decreed, that the said deed made by said Marie Miller on said 20th day of June, 1935, conveyed all the right, title, and interest of said Marie Miller in and to the real property herein described and that said Phillip W. Miller is the owner of said real property and that the conveyance of said real property by said Marie Miller and the said deed whereby the said conveyance was made are hereby ordered established."

By this decree the defendant was ordered to convey the premises claimed to the plaintiff and title to these premises was quieted in the plaintiff. The appellant's specifications of error raise two questions to be considered by this court. One, is there substantial evidence to sustain the judgment of the trial court, and two, what relief may be granted to the grantor of an admitted fraudulent conveyance when he seeks to establish a destroyed deed reconveying the property to him.

The plaintiff testified that in June 1935, while he was the owner of the land described in the complaint, he owed a sum of money to one Martin Grinde and fearing that Grinde was going to attach and sell his property, he deeded the premises to his mother, the defendant herein. This deed was executed on June 11, 1935, and recorded June 20, 1935. The plaintiff further testified that before delivery of the deed to his mother she reconveyed the property to him by a deed dated June 20, 1935. The plaintiff kept this deed of reconveyance about the house for a period of time and then placed it in a coffee can which he buried in a shed on the farm where he was living.

In 1944 the plaintiff dug up the coffee can and found that the can had rusted and fallen away and the deed therein had become wet and the paper had disintegrated so that it was practically illegible. It is this deed that the plaintiff seeks to establish and upon which he bases his claim to quiet title to the premises in question.

In the majority opinion the Chief Justice has cited sections 6859 and 10611, Revised Codes of 1935, which require that real property can only be transferred by an instrument in writing subscribed by the transferor. These two sections are not applicable under the theory of the plaintiff or under the findings of the court. It was the plaintiff's contention that his mother executed and signed a valid deed and that while the deed was buried for nine years the signature of the transferor as well as that of the notary had dissolved and disappeared and the court so found.

The plaintiff introduced the deed into evidence and had it identified as plaintiff's exhibit 1. Since the description of the land conveyed had been partially worn away and the signatures had faded and disappeared it was necessary for him to complete the instrument by parol evidence. The statute expressly provides for the admission of parol evidence to complete a document and prove its authenticity. "There can be no evidence of the contents of a writing, other than the writing itself, except in the following cases: 1. When the original has been lost, or destroyed; in which case the proof of loss or destruction must first be made. * * *" Sec. 10516, Rev. Codes.

It is self evident from an examination of the exhibit that it has been macerated, partially dissolved and disintegrated, and in effect, destroyed. Therefore the plaintiff was entitled to introduce parol evidence to complete the document. Sec. 10531, subd. 14, Rev. Codes 1935. Insofar as the application of this rule is concerned, destroyed instruments and lost instruments are treated alike. IV Wigmore on Evidence, 3d Ed., sec. 1194, p. 337.

Upon proof of loss or proof of destruction "together with proof of the due execution of the writing, its contents may be proved by a copy, or by a recital of its contents, in some authentic document, or by the recollection of a witness * * *." Sec. 10585, Rev. Codes 1935.

Such parol proof of the contents, the authenticity and execution of a written instrument, is of course quite different from an attempt to prove a transfer of land by parol when no written instrument ever existed.

A more serious question is the proof of execution and authentication. Before a witness may testify as to the contents of a document allegedly lost or destroyed, a foundation must be laid by proving that such an instrument existed, that it was duly executed and that the document about which he is testifying is the identical one that was executed and is now destroyed. 2 Elliott on Evidence, sec. 1458; Jones Commentaries on Evidence, sec. 814, p. 1491 and sec. 857, p. 1557, 1558; 16 Am. Jur., Deeds, sec. 372, p. 650.

This court has adopted the language of Tayloe v. Riggs, 1 Pet. 591, 26 U.S. 591, 7 L. Ed. 275: "``When a written contract is to be proved, not by itself, but by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and, if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support. When parties reduce their contract to writing, the obligations and rights of each are described and limited by the instrument itself. The safety which is expected from them would be much impaired if they could be established upon uncertain and vague impressions, made by a conversation antecedent to the reduction of the agreement.'" Capell v. Fagan, 30 Mont. 507, 77 P. 55, 2 Ann. Cas. 37.

Consequently this court has declared that evidence of the former existence, execution, delivery, loss and contents of a lost instrument should be clear and convincing. Wilson v. Davis,110 Mont. 356, 363, 103 P.2d 149; St. Martin State Bank v. Steffes, 88 Mont. 85, 88, 290 P. 259; Capell v. Fagan, supra. Decisions in other jurisdictions relative to the sufficiency of proof are collated in 148 A.L.R. 402; and see Lende v. Ferguson,237 Iowa 738, 23 N.W.2d 824; Taylor v. Bank of America Nat'l Trust Sav. Ass'n, 67 Cal. App. 2d 59, 153 P.2d 617; Barranco v. Kostens, ___ Md., ___, 54 A.2d 326.

The trial court specifically found that the defendant "made and delivered a Quit Claim deed in writing of said real property to the above named plaintiff" and that "said deed of conveyance made by said Marie Miller to said Philip W. Miller was duly acknowledged by said Marie Miller before a notary public." When we say the evidence must be clear and certain and convincing to prove the execution of a lost or destroyed instrument, we mean it must be clear and certain and convincing to the trier of facts. In this case it is the district judge. It is he who weighs the evidence and determines the credibility of the witnesses. Ely v. Montana State Federation of Labor, Mont., 160 P.2d 752; State ex rel. Brindjonc v. District Court,93 Mont. 188, 17 P.2d 1094; Dockins v. Dockins, 82 Mont. 218,266 P. 398; Blinn v. Hutterische Soc., 58 Mont. 542,194 P. 140; Orton v. Bender, 43 Mont. 263, 115 P. 406; Consolidated Gold Sapphire Min. Co. v. Struthers, 41 Mont. 551,111 P. 150; Bowen v. Webb, 37 Mont. 479, 97 P. 839, and many others.

The Chief Justice has pointed out that this is an equity case and under section 8805, Revised Codes of Montana 1935, "in equity cases, and in matters and proceedings of an equitable nature, the supreme court shall review all questions of fact arising upon the evidence presented in the record, whether the same be presented by specifications of particulars in which the evidence is alleged to be insufficient or not, and determine the same, as well as questions of law * * *"

So that on appeal this court has more latitude in its review of the facts as determined by the trial judge than it does in a case at law. But the boundaries of our authority in re-examining and re-appraising the facts in an equity case are well established by a long line of Montana decisions.

Traditionally, of course, as a result of the historical differences in the development of the systems of equity and law, equity review has been a re-examination of the entire record, on both the facts and the law, while at law the appellate court is limited to a re-examination of purely legal errors which may have been committed by the trial court. So that before the reformed procedure equity review might almost amount to a de novo reconsideration of the facts.

But our Constitution and our statutes provide for but one form of civil action. Art. VIII, sec. 28, Mont. Const. and sec. 9008, Rev. Codes 1935. This union of law and equity has brought about a decline in the procedural differences between the two systems. In this jurisdiction the decline has been sufficiently marked so that text writers have declared that while we "give lip service to the old line of demarcation, we construe away its force by extensive application of the presumption in favor of the trial court's finding." Review of Findings and Fact, 4 Univ. of Chicago Law Review, 190, 215.

Clark on Code Pleading says: "In some states the manner of appellate review of equity questions is made the same as that of jury questions — review for errors of law only." P. 67. As authority, he cites Watkins v. Watkins, 39 Mont. 367,102 P. 860, 861. The cited case sets forth the rule as it has been established in Montana in a long line of cases beginning with Ming v. Truett, 1 Mont. 322 and continuously reaffirmed ever since.

"In reviewing the evidence, this court will start out with the presumption that the jury and the trial court did their whole duty and that the findings are supported by the evidence. It will then endeavor, by a fair, unprejudiced, and dispassionate examination of the evidence, to determine whether there is any substantial support for the findings in the evidence, always bearing in mind that it is not assisted by the presence of the witnesses, and that a witness' manner and demeanor on the stand might justify a conclusion by court or jury not at all warranted by a review of the evidence reduced to cold print. If, acting under the guidance of the rule here laid down, we determine that the testimony furnishes reasonable ground for different conclusions, then we will hold that there is no decided preponderance in the evidence against the findings, and decline to disturb them. In the case of Finlen v. Heinze, supra [32 Mont. 354,80 P. 918], this court said that ``it is incumbent upon the appellant to show that the preponderance of the evidence is against the findings of the trial court, before we will disturb such findings upon the ground of insufficiency of the evidence.' A careful reading of the whole case will convince anyone that the court was referring to a clear and decided, and not a mere, preponderance. In passing, we may say that we are convinced that every reason urged in favor of the policy of non-interference by the appellate court with the findings of the trial court, except where there is a decided preponderance in the evidence against such findings, applies with equal, if not greater, force to the findings of a jury." Watkins v. Watkins, supra.

In the case of Van Voast v. Blaine County, Mont., 167 P.2d 563, 564, in an opinion written by the author of the majority opinion in the instant case, this court quoted Bickford v. Bickford, Mont. 158 P.2d 796, 797, "``On appeal to this court the presumption is that the decree and findings of the trial court are correct. (Citing cases.) The findings of the trial court must be sustained if they are supported by substantial evidence. Kommers v. Palagi, 111 Mont. 293, 108 P.2d 208. All legitimate and reasonable inferences must be indulged toward upholding the findings. Welch v. Thomas,102 Mont. 591, 61 P.2d 404.'" Other cases to the same effect are Ryan v. Bloom, Mont., 186 P.2d 879; Demos v. Doepker, Mont.,182 P.2d 469; Leigland v. Rundle Land Abstract Co.,64 Mont. 154, 208 P. 1075; Atkinson v. Roosevelt County, 71 Mont. 165,227 P. 811; Bordeaux v. Bordeaux, 32 Mont. 159, 80 P. 6; Finlen v. Heinze, 32 Mont. 354, 80 P. 918, and many others. And see Bosanatz v. Ostronich, 57 Mont. 197, 204, 187 P. 1009,1011, where the court said "Where the evidence is conflicting in an equity case, the findings of fact by the trial judge rest upon the same principle as the verdict of a jury." Citing Ingalls v. Austin, 8 Mont. 333, 20 P. 637.

This plaintiff came into the trial court charged with the burden of establishing by a preponderance of evidence satisfactory to the trial judge, the existence, the execution and the validity of the deed to the property he claimed. He was required to prove these facts by evidence clear, certain and convincing to the court. He sustained this burden in the trial court and findings in his favor were made by the district judge.

He now comes into this court with the presumption that the findings of the trial court are correct. The question is no longer whether the deed was executed by the defendant or not. That question has been decided by the trial court. This is a court of review. Our question is whether we can find in the record substantial evidence to sustain the findings of the trial court. So that unless it appears affirmatively that the evidence preponderates against the findings we must affirm the decision. The burden has shifted — on appeal it is the appellant who has the burden of showing error. Dalbey v. Equitable Life Assurance Soc. of United States, 105 Mont. 587, 74 P.2d 432; Koppang v. Sevier, 106 Mont. 79, 75 P.2d 790; Gibbs v. Gardner,107 Mont. 76, 80 P.2d 370; Wills v. Midland Nat'l Life Ins. Co.,108 Mont. 536, 91 P.2d 695; Hill v. Frank, Mont., 164 P.2d 1003.

In order to sustain this burden the appellant must affirmatively show that the conclusion of the trial court cannot be sustained on any theory. Gibbons v. Huntsinger, 105 Mont. 562,74 P.2d 443; State v. American Bank Trust Co., 75 Mont. 369,243 P. 1093; Thompson v. Chicago, B. Q.R. Co., 78 Mont. 170,253 P. 313.

The only evidence that the deed was ever executed by the defendant is the testimony of the plaintiff himself. He testified:

"Q. What took place in Mr. Hullinger's office in Conrad on the twentieth of June, 1935? A. He just drawed up the deed and my mother signed it, and the stenographer sealed it and that is I guess about all, other than me paying him for doing it.

"Q. I will show you Plaintiff's Proposed Exhibit ``1' and ask you whether or not that is the deed that was made by your mother at that time? A. Yes.

"Q. When you speak of your mother, you mean the defendant in this action? A. Yes sir.

"Q. Did your mother sign plaintiff's Exhibit ``1' on the twentieth of June, 1935? A. Yes.

"Q. That was done in Mr. Hullinger's office, was it? A. Yes sir.

"Q. Here in Conrad? A. Yes sir.

"Q. Did you see the signature on it? A. Sure.

"Q. And it was the signature of your mother? A. Yes sir."

(The exhibit 1 mentioned in plaintiff's testimony is the mutilated deed that was buried in the coffee can.)

Wigmore says that testimonial evidence as to the execution of an instrument is always sufficient when the direct testimonial evidence to execution is that of a witness who saw the very act of writing. VII Wigmore on Evidence, sec. 2131, p. 571.

In other respects the evidence given by the plaintiff is contradictory. But here is a direct statement that he saw the defendant sign the deed. The attorney who allegedly notarized the instrument did not remember the specific deed sufficiently to identify it and did not recall whether or not Mrs. Miller signed it. The defendant categorically denied that she had ever executed the deed. There was a direct conflict which the trial judge resolved in favor of the plaintiff.

The universal rule is that the trial court's findings on conflicting evidence will not be disturbed. Walker v. Mink, Mont., 158 P.2d 630; Kerrigan v. Kerrigan, 115 Mont. 136,139 P.2d 533; Doney v. Ellison, 103 Mont. 591,64 P.2d 348; Moser v. Fuller, 107 Mont. 424, 86 P.2d 1, 2.

In the latter case the court said: "In some respects the evidence was not entirely satisfactory; * * *. However, there was a substantial conflict in the evidence, which was resolved by the trial court in defendant's favor, and it cannot be said that there was no sufficient evidence in support of the judgment, or that the evidence decidedly preponderated against it. Pope v. Alexander, 36 Mont. 82, 92 P. 203, 565. Certainly, there is credible evidence in the record in support of the judgment."

In Doney v. Ellison, supra, the court was confronted by conflicting evidence and there said: "There was ample testimony in the record to justify a finding by the court either way. * * * The rule of this court is well established that a finding made by the trial court on conflicting testimony will not be disturbed. Carboni v. Carboni, 99 Mont. 279, 43 P.2d 634, and cases therein cited." 103 Mont. at page 596, 64 P.2d at page 349.

The plaintiff has testified that he saw his mother sign the deed. That is enough. The direct evidence of one witness is sufficient proof of any fact except perjury and treason. Sec. 10505, Rev. Codes 1935. This is true even where the witness is a party to the action. Lizott v. Big Blackfoot Milling Co., 48 Mont. 171, 136 P. 46. The plaintiff did not need corroboration. Preponderance of evidence may be established by testimony of a single witness against a greater number. Vesel v. Polich Trading Co., 96 Mont. 118, 28 P.2d 858; Stauffacher v. Great Falls Public Service Co., 99 Mont. 324, 43 P.2d 647; Wallace v. Wallace, 85 Mont. 492, 279 P. 374, 66 A.L.R. 587; Hill v. Haller, 108 Mont. 251, 90 P.2d 977.

After the proper foundation was laid the witness was permitted to testify as to the contents of the instrument. The same quantum of proof is required for contents of a written instrument as was required for proof of existence and execution. The evidence to establish contents must be clear and certain. Capell v. Fagan, supra; St. Martin's State Bank v. Steffes, supra; Wilson v. Davis, supra. But it is not necessary to prove the identical words of the instrument. Too strict an insistence on verbal accuracy would defeat the rule. So that all that is required is the substance of the material parts. Keil v. Wilson, 47 N.M. 43,133 P.2d 705, 148 A.L.R. 400; VII Wigmore on Evidence, sec. 2105; 2 Jones Commentaries on Evidence, 2nd Ed., sec. 858.

In the instant case the plaintiff has identified the mutilated deed introduced to the satisfaction of the trial court and the testimony of the plaintiff is that the missing description is the same as the description in the deed from the plaintiff to the defendant executed on June 11, 1935. The other elements of the deed can be made certain by an examination of the exhibit.

It must be held that the evidence to prove the execution, previous existence and contents of the deed is legally sufficient to sustain the trial court.

It is suggested in the specially concurring opinion of Mr. Justice Angstman that the rule laid down in Casey v. Northern P. Ry. Co., 60 Mont. 56, 198 P. 141, is applicable. He is referring to the rule that whenever the surrounding circumstances make the story of a witness improbable or incredible or whenever the testimony is inherently impossible, the appellate court may disregard such testimony and findings based on such testimony. The rule cited is a familiar rule universally accepted, but one that should be cautiously applied. See annotation on the subject of acceptance of evidence contrary to scientific principles or laws of nature in 21 A.L.R., at page 141.

A frequently quoted case on this subject is Austin v. Newton,46 Cal. App. 493, 189 P. 471, 472, as follows: "On the other hand, as an appellate court, it is our bounden duty to exercise great care and caution in applying the tests of common sense and common knowledge of physical laws to a given state of facts. Common experience and observation teach us that strange and astonishing things sometimes happen in the world of physical phenomena, and accidents sometimes appear to happen in manner unaccountable. For these reasons an appellate court must be careful not to give to dogmatic and undemonstrated conclusions respecting natural laws precedence over the testimony of apparently credible witnesses; and the mere fact that the admitted circumstances make the story of the witnesses seem improbable will not justify a reversal by an appellate tribunal upon the ground that the verdict is contrary to the evidence."

No evidence was introduced as to the effect of the action of chemicals in the soil, or moisture or other conditions upon a deed buried in a tin can for nine years. In the absence of evidence of this nature an appellate court should indulge the presumption that the trial court's finding is correct. It is not beyond the realm of probability that the action of water or chemcials in the soil would remove ink of the nature used in a pen and leave typewriting or printer's ink or that the same reaction that dissolved the paper in the deed might smooth out the impression of the notarial seal.

The courts may take judicial notice of the laws of nature, sec. 10532, subd. 8, Rev. Codes 1935, and under proper circumstances, judicial notice of recognized laws of nature or science might require a court to disregard evidence in direct conflict therewith.

But it is equally true that the courts do not take judicial notice of scientific facts which are not common knowledge. Wiggins v. Industrial Acc. Board, 54 Mont. 335, 343, 344, 170 P. 9, L.R.A. 1918F, 932 Ann. Cas. 1918E, 1164.

"Even though the laws of nature or science are so well known that they become matters of judicial knowledge, their application to the facts of a particular case may still remain a valid matter of controversy. The effect of such natural laws, however, should be clear and unescapable before a court will be justified in ignoring specific allegations of a pleading." Roy v. Smith,131 Cal. App. 148, 21 P.2d 151, 153.

The plaintiff admitted that the transfer of the property he is now seeking to recover was for the purpose of placing the property beyond the reach of creditors. The defendant has invoked the familiar maxim that he who comes into equity must come with clean hands and relies on a corollary of that rule that where there has been a conveyance to prevent creditors from reaching the property, equity will leave the parties in the position in which they have placed themselves, refusing any affirmative aid to either of the fraudulent participants. 2 Pomeroy's Eq. Juris., 5th Ed., sec. 401, p. 104; 24 Am. Jur., Fraudulent Conveyances, sec. 118, p. 267.

The rule cited is not here applicable. This is not an action to force a reconveyance or to enforce a resulting trust. The plaintiff here is seeking to quiet title and to establish a lost deed already executed reconveying the property. The trial court has determined that the defendant reconveyed the property and found that the mutilated deed offered in evidence was genuine. The applicable rule, then, is set forth in section 401a, 2 Pomeroy's Equity Jurisprudence, supra: "If however the grantee recognizes the trust and reconveys the property to the grantor, the courts will not interfere with the latter's possession, no question being raised as to the rights of creditors." See also note in 89 A.L.R. 1168.

In the recent case of Fulton v. McCullough, 232 Iowa 1220,7 N.W.2d 910, there is an excellent discussion of this proposition under a similar factual situation. See also McCann v. Commissioner of Internal Revenue, 6 Cir., 87 F.2d 275, 108 A.L.R. 1504; Williamson v. Kinney, 52 Cal. App. 2d 98, 125 P.2d 920; Blankenship v. Green, 283 Ky. 700, 143 S.W.2d 294.

The trial court has established the deed from the defendant to the plaintiff reconveying the premises as a valid and authentic instrument. The plaintiff then is not relying on the duty of the defendant to reconvey but upon an actual deed. There is no question of the rights of creditors of either party. As between the parties to this action the deed of reconveyance is valid. 24 Am. Jur., Fraudulent Conveyances, sec. 160, p. 295.

The decree should be affirmed.