Robinson v. Pitzer , 3 W. Va. 335 ( 1869 )

Brown* President..

This was an action of debt by John W. Pitzer, sheriff, for the use of John W. Hedges, against Robert K. Robinson, on a bond, with- collateral conditions, to indemnify the said sheriff for levying an execution in favor of the said Robinson against one Enoch G. Hedges on certain property claimed by the said John W. Hedges.

The evidence showed that Enoch G. Hedges being the owner of a farm with a growing crop of wheat on it, &c., on it, and being also in debt to his brother and others for a valuable consideration, and, as far as the court can see from the evidence in the cause, a reasonably adequate one. That after the sale the .vendor was to remain in possession as the agent of the vendee and carry on the business of the farm as such agent, for which he was to have his family supported out of the proceeds, and was also to have for his own use whatever remained- of the proceeds of the crops after the vendee should be paid thereout, the legal interest on the cost. The horses requisite for the conduct of the farm were bought by said Enoch for the said John and paid for by orders on John, who paid the orders.

Enoch G-. Hedges was examined on the first trial as a witness for the plaintiff.

The defendant Robert K. Robinson then introduced as a witness one James W. Robinson, who proved the statements of Enoch <3-. Hedges relative to the said sale and agency, made in a conversation had between the said Enoch G. Hedges and James "W". Robinson,, long after the said transaction had taken place. This evidence was admitted to go to the jury by the court to discredit and contradict e witness, Enoch G-. Hedges. There was a verdict for the defendant, which the court set aside and awarded a new trial upon the ground of its own error in permitting the said statements of Enoch G. Hedges to go to the jury for the purpose mentioned.

Eor the defendant, Robinson, it is claimed that the said evidence was proper to impeach the witness of the plaintiff, and, therefore, the court erred in setting aside the verdict for that cause, and further, that independently of that objection, the evidence was admissible in chief, and proper to sustain the issue for the defendant as the declaration of a party in possession of the property, the subject of controversy, which it was claimed constituted prima fade fraud.

But I am of opinion that there was no sufficient ground laid for tbe admission of tbe statements of Enoch G. Hedges, for tbe purpose of contradicting him and impeaching his credit. Nor were his statements made, after the sale and conveyance and during his continuance as the agent , and manager of the purchaser, evidence in chief either to disprove the purchaser’s title or to establish fraud in ,the sale, since the other evidence in the cause fails to involve the transaction between the parties in such doubt and uncertainty, or raise a reasonable apprehension of collusion as would warrant a resort to the statements of the vendor after he had parted with the property though holding a possession consistent with the change of ownership.

There was no error, therefore, in setting aside the first verdict and awarding a new trial. Neither was there error in allowing the record of the deed from Enoch G. Hedges to John W. Hedges to go in evidence, without accounting for the original and when it was in the possession of the vendee, for the records arc evidence, and if .they were not they would be worse than useless; and the deed was properly admitted to record.

Nor was there error in permitting parol evidence of the intention of the parties that the purchaser should have the growing crop, that being in harmony and not inconsistent with the deed.

Though it was irregular to permit the plaintiff to offer in evidence the deed from Enoch G. to John W. Hedges, after the plaintiff had closed his evidence, without having with the assent of the court reserved the privilege of doing so, and while the defendant was delivering his evidence to the jury, yet the propriety of doing so was a matter depending upon the circumstances of the case at the time, to be judged of by the court, and there is nothing-in the record to show that the action of the court was not justified by the circumstances transpiring during the trial.

Though it is not necessary to stop the progress of the trial to prepare bills of exception, yet at least the point should be saved before the jury retires, and the bill may then be prepared and signed afterwards; but where exeeption is taken and the progress of the trial stopped for the purpose, and the bill is then prepared and signed, the parties may well rely on the case as thus made by the record and shape their course accordingly.

In such case it would not be error in the court after the verdict had been rendered to refuse to amend the bill of exceptions, notwithstanding in general where the exception has been taken before the jury retired, but the bill not drawm up and signed till after verdict, the court may correct the bill to conform to the truth.

There was no error in admitting John W. Hedges to be examined as a witness, because, there being no judgment, the case is not within the exception to the general rule provided in the statute. And the same point'is decided in Zink vs. Wilson—infra.

There was no error in the refusal of the court to set aside the last verdict, because it was not contrary to the evidence so far as it appéars in the record. • The deed from Enoch GL to John W. Hedges is not made part of the record, though its admission as evidence was excepted to, but the parties have chosen to content themselves with the oral statements of the witnesses relative to the sale and transfer of the farm, growing crop, and the statement in the record that the deed was put in evidence. Had the deed been made part of the record in any bill of exceptions the court might more satisfactorily have judged of its contents. Taking the case as it stands there is nothing to show that the verdict was contrary to the evidence. Nor does it establish a case of fraud.

I think, therefore, that the judgment of the court below should be affirmed, with costs and damages to the defendant in error.

The remaining members of the court concurred.

Judgment affirmed.