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executed by the said Eddie M. Jewell, duly attested and witnessed; that the same was duly mailed to and received by the said insurance company; and setting forth other facts and circumstances in connection with the alleged change of beneficiary, and particularly the following: “This respondent, further answering, says that on the 26th day of May, 1906, the said Eddie M. Jewell was shot, and lived thereafter until the 2d day of June, 1906, on which day he died; that from the date upon which he was shot until the date of his death he was seriously ill; that during his said illness he requested that the said policy in question be turned over to his wife, and that it was his express will and desire that she, his wife, now this respondent, should have the full amount of the proceeds of said policy in the event of his death ; that during the time of his said illness the said Mrs. C. D. Frink stated that she was perfectly willing for the amount of said policy to be turned over to his wife, now this respondent; that the said Mrs. C. D. Frink soon after his death often said that she was glad that the said policy was changed and left to be paid to his wife, now this respondent, for the reason, as she, the said Mrs. C. D. Frink, stated, that she (the said Mrs. C. D. Frink) well knew that she, Mrs. Jessie M. Jewell, would thereby be well provided for, and further stated that under no circumstances would she (Mrs. C. D. Frink) interpose claim to said policy.”
On the 27th day of April, the complainant filed replications to the answers of Mrs. Jessie M. Jewell and Mrs. C. D. Frink and her husband. On the 5th day of May, Mr. and Mrs. C. D. Frink filed a paper styled “a replication” to the answer of Mrs. Jewell, putting the same in issue as to facts. On the 4th day of June, 1909, counsel for C. D. Frink and Mrs. C. D. Frink filed a notice, directed to the counsel for Mrs. Jessie M. Jewell, that on Friday, June 11th, the case would be called up for final hearing, and counsel at the same time made affidavit that he had mailed a copy of said notice to counsel for Mrs. Jewell. On the 29th day of June the case was taken up for final hearing, and thereupon the solicitor for Mrs. C. D. Frink filed certain exhibits in #. of the claims of the said Mrs. Frink, and the court decreed as ollows:
“This cause coming on for final hearing upon bill of complaint, and answers and amended answers by the defendants C. D. Frink and Mrs. C. D. Frink, and answers and amended answers by the defendant Jessie M. Jewell, and upon replication of the complainant to said answers and amended answers, the court, after consideration of same, and after argument made by solicitor for the defendants C. D. Frink and Mrs. C. D. Frink, it appearing that due and timely notice had been served upon the defendant Jessie M. Jewell, and her solicitor of record, W. W. Flournoy, of this hearing, and it further appearing that this court had heretofore made an order allowing the complainant to require the defendants C. D. Frink and Mrs. C. D. Frink and Jessie M. Jewell to interplead, and that the complainant, the said State Life Insurance Company, should pay into the registry of this court the amount due upon the policy of insurance, the subject-matter of this suit, and it further appearing that said . complainant, the State Life Insurance Company, did on the 17th day of March, 1909, pay into the registry of this court the sum of six thousand and forty-four dollars ($6,044), the same being the principal and interest due on said policy to said date, the court, after consideration of said bill, answers, and amended answers, and replication thereto, after argument on behalf of the solicitor for the defendants C. D. Frink and Mrs. C. D. Frink, being advised of its opinion, it is hereby ordered, adjudged, and decreed: First, that the State Life Insurance Company, the complainant, having paid the proceeds of the policy into the registry of the court, as per order of this court, they, the said State Life Insurance Company, are discharged from further liability to any of the parties to this suit; second, that the defendant Mrs. C. D. Frink, the beneficiary named
in said policy, is entitled to the proceeds of the said policy of insurance : 'third, that the clerk of this court shall pay over to J. W. Kehoe, solicitor of record for the defendants, C. D. Frink and Mrs. C. D. Frink, the full sum of six thousand and forty-four dollars ($6,044), less the costs in her behalf expended, and take his receipt therefor; fourth, that the costs of these proceedings be and they are hereby taxed against the defendants C. D. Frink and his wife, Mrs. C. D. Frink. Done and ordered and decreed at chambers, in the city of Pensacola, state of Florida, on this the 29th day of June, 1909.
“Wm. B. Sheppard, Judge."
With this full history of the pleadings and proceedings, it is apparent that at the time of the alleged final hearing the case, while ready for a decree between the complainant and the two defendants, was not ripe for final hearing and decree between the contesting defendants, unless, indeed, the defendants Frink had withdrawn their replication to Mrs. Jewell's answer. Mrs. Jewell's answer sets up facts which she was entitled to prove and have the benefit of. When it was put at issue by the complainant April 27, 1909, and the contesting defendant Frink on May 5, 1909, Mrs. Jewell had three months thereafter in which to take evidence to prove the facts alleged in her answer. Equity rule 69. This time does not appear to have been waived.
Counsel for appellees Frink contends that the court can decree the complainant's right to interplead and the claimant's right to the fund, at the same time citing 11 Enc. Pl. & Pr. This can only be true when the case is ripe for hearing and decision. See 11 Enc. Pl. & Pr. 473.
Counsel for same appellees say in their brief: "The burden of the proof was upon Jessie M. Jewell, the interposing claimant. She offered nothing to support the allegations of her answer, and the allegations of her answer, eren had they been supported by proof, or even taken or accepted as true, were not sufficient to warrant the court in making a decree in her favor."
The last part of this excerpt non sequitur.
The decree appealed from should be reversed, and the cause remanded, with instructions to fix a reasonable time within which parties shall take their evidence and thereafter proceed according to equity and good conscience. And it is so ordered
QUINALTY et al. v. TEMPLE et al.
(Circuit Court of Appeals, Fifth Circuit. February 15, 1910.)
No. 1,881. EVIDENCE (106*)-TITLE-RECITALS IN DEED-EVIDENCE OF CHARACTER OF GRANTOR.
In an action of trespass to try title, where the record title was in plaintiffs' ancestor, and defendants claimed through a deed from one since deceased, who was a stranger to such title, but whose deed recited that the land had been conveyed to him by plaintiff's' ancestor by deed of a certain date, evidence of the general good character and reputation
for truth and veracity of such grantor is not admissible in support of *For other cases see same topic & S NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes
such recital, nor is evidence of the character and habits of plaintiffs' anCeStor.
[Ed. Note.—For other cases, see Evidence, Cent. Dig. § 183; Dec. Dig. § 106."] In Error to the Circuit Court of the United States for the Eastern District of Texas. Action by Thomas Quinalty and another against T. L. L. Temple and others. Judgment for defendants, and plaintiffs bring error. Reversed.
Oliver J. Todd and John Hamman, for plaintiffs in error. F. D. Minor (Geo. C. Greer and Greer, Minor & Miller, on the brief), for defendants in error.
Before PARDEE, McCORMICK, and SHELBY, Circuit Judges.
SHELBY, Circuit Judge. This is an action to recover 1,107 acres of land situated in Sabine county, Tex., brought in the court below by Thomas Quinalty and Charles Quinalty against T. L. L. Temple and others. John L. Quinalty obtained title to the land from the Mexican government in 1835, and he died about the year 1855. The plaintiffs were proved to be his sons and only heirs. The record shows that the plaintiffs are entitled to recover the land, if it was owned by John L. Quinalty at the time he died. The case turns on the question whether John L. Quinalty died seised and possessed of the land.
The defendants contend that he parted with the title before he died. To sustain this contention, they offered a deed of John Forbes to D. C. Barrett, dated February 17, 1837, conveying the land in question. John L. Quinalty is not a party to the deed, and, standing alone, it had no effect on his interest. This deed, however, contains a recital which, if true, shows that Quinalty had conveyed the land in question to Forbes. The récital refers to the land as “being the same land which he [Forbes, the vendor] purchased of John S. Quinalty by deed, bearing date October 7, 1836, now delivered to the present purchaser, who hereby acknowledges the receipt thereof.” (The variance in the initial of the middle name—“S” for an “L”—was treated. as immaterial.) This deed was received in evidence, and the recital submitted to the jury as a circumstance to be considered by them in determining the question whether or not Quinalty, in his lifetime, had parted with the title. And the learned trial judge instructed the jury that, if he had not parted with the title, the plaintiffs were entitled to recover, and added:
“But, if you believe from the evidence in this case, taking all the circum
stances into consideration as a whole that Quinalty had parted with his title, your verdict will be for the defendants.”
The question submitted to the jury, therefore, was whether the recital in the deed to Barrett, that Quinalty had conveyed the land to Forbes, was true or untrue. Unless the jury was satisfied of its truth, they were instructed to find for the plaintiffs.
The defendants, to sustain and support the truth of the recital, were permitted to prove, against the objection and exception of the plain
*For other cases see same topic & S NUMBER in Dec. 4& Am. Digs. 1907 to date, & Rep'r Indexes
tiffs, that John Forbes, who conveyed to Barrett, was a man of good reputation "for honesty and fairness in his business transactions," and that the witness never heard "his integrity in land transactions questioned." Evidence as to the general character of John Forbes was offered and received, of course, on the theory that a man of good character for fairness in business transactions would not probably represent by a recital in a paper signed by him that the land had been conveyed to him, when it had not been. If, as a witness on the stand, he had testified to the recited facts, the same argument would applythat his statement would be supported and strengthened by proof of his general good character for truth and veracity; yet it is well settled that evidence of the good character of a witness, whose character has not been attacked, is not admissible. Until an attack is made on it, the character of a witness is not in question. 2 Wigmore on Evidence, ş 1104. The same is true as to the character of a defendant in a civil suit, where the nature of the action itself does not involve his general character; therefore evidence of his character cannot be received to contradict an imputation of dishonesty or fraud. Smets v. Plunket, 1 Strob. (S. C.) 372; Roach v. Crume (Tex. Civ. App.) 41 S. W. 86; Fwler v. Ætna Fire Ins. Co., 6 Cow. (N. Y.) 673, 16 Am. Dec. 460; Gebhart v. Burkett, 57 Ind. 378, 26 Am. Rep. 61; Porter v. Seiler, 23 Pa. 424, 62 Am. Dec. 341; McCowen v. Gulf, C. & S. F. Ry. Co. (Tex. Civ. App.) 73 S. W. 46; Timmony v. Burns (Tex. Civ. App.) 42 S. W. 133; Barton v. Thompson, 56 Iowa, 571, 9 N. W. 899, 41 Am. Rep. 119; Elliott v. Russell, 92 Ind. 526; Gertz v. Fitchburg R. R. Co., 137 Mass. 77, 50 Am. Rep. 285.
The recital of an alleged fact by John Forbes in a deed places him, to some extent, in the attitude of a witness; it is a written statement made by him which is in evidence. But, if we consider his position analogous to that of a witness, his evidence could not be bolstered and supported, no attack having been made on him, by proof of his general good character. Forbes, in his deed to Barrett, in which the recital is made, warrants the title conveyed by him. To that extent, he, or his estate, he being dead, may have an interest in the result of the suit. This makes his position somewhat analogous to that of a party to the suit. It is well settled that a party to a civil suit cannot offer proof of his general good character, it not being attacked or directly in issue, even to rebut an imputation of dishonesty or fraud. We see no reason for making a distinction between the position of Forbes and that of a witness or a party to the suit. The reasons for rejecting such evidence are equally applicable to him as a warranting vendor whose recitals of fact are in evidence. Evidence of character in such cases has but a remote bearing as proof to show that the act in question has or has not been committed. It is uncertain in its nature, because true character is ascertained with difficulty, and those who are called to testify are reluctant to disparage the influential and often too willing to disparage one under a cloud. At best, such evidence is a mere matter of opinion, and, in matters of opinion, witnesses are apt to be influenced by prejudice or partisanship, of which they may be unconscious, or by the opinions of those who first approach them on the subject. The introduction of such evidence, in civil cases, to bolster the character of parties
and witnesses who have not been impeached, would make trials intolerably tedious and greatly increase the expense and delay of litigation. The rule that would admit evidence of the good character of the writer of the deed in question here would admit it as to the writer of any paper offered, whose statement was contested by other proof or circumstances. The fact that a witness or a written statement in evidence is contradicted by other evidence in the case does not put the veracity of the witness or the writer in issue. The purpose of the contradicting evidence is to show that the witness or writer is not to be believed in this instance. The reason why he is not to be believed is not important. It may be his forgetfulness or mistake, or that he is deceived. The disbelief sought to be produced by the conflicting evidence is perfectly consistent with an admission of the witness’ or the writer's general good character for veracity; and, until the character of the witness or writer is assailed, it cannot be fortified by evidence. Gertz v. Fitchburg R. R. Co., 137 Mass. 77, 78, 50 Am. Rep. 285; Tedens v. Schumers, 112 Ill. 263, 266. Against the objections and exceptions of the plaintiffs, the defendants were permitted to offer evidence to show the character and habits of John L. Quinalty, the ancestor of the plaintiffs. The witnesses testified that he was of a roving disposition; that he did not care for anything; that he did not accumulate, but spent as fast as he made; that he ran horses across the river to avoid paying duty on same; that he danced, drank whisky, played the fiddle, etc. The tendency and purpose of the evidence was to show that he was thriftless and dissolute. The theory upon which it was received is probably best shown by an excerpt from the brief of the learned counsel for the defendants in error: “It is believed that all of this evidence was relevant and material, the question for the jury being: Is it probable, under all the facts and circumstances in evidence, that the recital of John Forbes in his deed to D. C. Barrett as trustee is true? Evidence of the traits, characteristics, propensities, habits, and
general manner of life of Quinalty was very material and relevant upon this issue.”
The idea intended to be fixed on the minds of the jury was that a man like Quinalty would not have held the title to the land, but would have sold it. To adopt the words of the Supreme Court, in Xenia Bank v. Stewart, 114 U. S. 224, 231, 5 Sup. Ct. 845, 849, 29 L. Ed. 101: “The evidence offered was inadmissible, because too remote and conjectural. The law requires an open and visible connection between the principal and
evidentiary facts and the deductions from them, and does not permit a decision to be made from remote inferences.”
In Thompson v. Bowie, 4 Wall. 463, 18 L. Ed. 423, the issue was whether certain promissory notes were given for a gambling debt, and testimony was offered to prove that the maker of the notes was, on the day of the date of the notes, intoxicated, and that, when intoxicated, he had a propensity to gamble. The judgment of the Circuit Court was reversed for receiving this evidence.
We cannot consent to the view that the traits, characteristics, propensities, and general manner of life of Quinalty were material and relevant upon the issue submitted to the jury. The evidence was re