Lee v. McMillan

Opinion,

Mr. Justice Mitchell:

The form of the scire facias to revive et quare executionem non, etc., in the present case, though not in all respects admirable, is substantially that which has been in general use for more than half a century, and has too often passed the scrutiny of the courts to be overthrown at this day. The first assignment of error is therefore not sustained.

The trial developed the following facts: Francis L. McMillan died March 3, 1883, at Kansas City, owning certain land in Wayne county of this state. It was not known definitely whether he died intestate or not, but in the absence of a will, his father, who lived on the land, was next of kin and entitled to administration, which, however, he renounced in favor of Betz, his son-in-law, and on April 9th letters were issued to Betz. On 'April 11th the father brought an action of assumpsit against the administrator, a narr in the common counts was filed, and a rule of reference to arbitrators. The parties met on May 22d, and on that day an award was made in favor of the father for $2,09-1. It wa.s shown that this award was based on a statement made up by the father, covering items running back from five to ten years, supported in part by notes, letters acknowledging the receipt of money and registered letter receipts, and iii part by the father’s own oath. The son-in-law administrator did not set up the statute of limitations, and when one of the arbitrators asked if they ought to throw out claims which were outlawed, he was told it was not the duty of arbitrators to consider legal questions, and that if the statute of limitations was not pleaded it was not usual to consider it. The administrator made no defence, either on the statute or by objection to the father as a clearly incompetent witness; nor did he ask for time or opportunity to investigate the claims, though it was shown that he knew of the habit of the father to cut and sell timber off the son’s land, which might either explain the remittances of money or show a set-off.

The award, as said, was made on May 22d, and in the same month, whether before or shortly after the award, did not appear, the will of Francis L. McMillan was received by the register, in which the land was devised to his cousin, Libbie Stevenson, one of the plaintiffs in error.

The probate and letters testamentary were, however, delayed by caveat and other proceedings until March, 1885. In the meantime, on June 11, 1888, the administrator, Betz, filed a petition in the Orphans’ Court for the sale of the land to pay the debts of the decedent of which the award to the father constituted more than two thirds* No notice was given by Betz to the devisee either of the award or of the petition to sell the land, which he then knew was hers, and the first information she had of either was from the advertisement of the land for sale. Her counsel at once entered on an investigation of the claims on which the award was founded, but was baffled at every point by evasion or refusal to produce the original evidence, and assertions of ignorance. The order of sale wa. however, stayed by the Orphans’ Court, and, the administrator having filed his account, the devisee paid the claims and expenses allowed by the auditor. This scire facias was then issued to charge the award against the land. At the trial, the plaintiff rested on the prima facies of the award, and all efforts of the defendant to get the particulars met with failure.

With the foregoing facts proved, and on this state of the evidence the court were asked to charge, “ First, that the original judgment has been so far impeached as to throw the burden of proof upon the plaintiff,” and, “Secondly, the plaintiff having given no evidence of the debt with which it is sought to charge the decedent’s real estate, there can be no recovery against the devisee.”

To the first point the court answered: “We refuse that point, because that question is for the jury, and not for the court.” This was an error. Where the burden of proof lies in the first instance, and when a sufficient case has been made out to shift it, are questions of law for the court. The credibility of the evidence is, of course, for the jury, but in this case the facts were substantially uncontroverted, and the jury should have been told that the award, having been obtained by incompetent testimony and under circumstances bearing strong evidence of fraud and collusion, was not entitled to any presumption in its favor, as against the devisee, who had had no opportunity to contest it.

The second point was refused, “ because it depends on the solution of the question whether there was collusion.” For the reasons already stated under the first point, this was error. The defendant was entitled to an unqualified affirmance of this point.

For these errors the judgment must be reversed.

Judgment reversed, and venire facias de novo awarded.