Nieman v. Mitchell

delivered the opinion of the Court:

1. The first question is upon the competency of complainant, George Nieman, to testify to the agreement between Mitchell and himself, and the execution thereof by Mitchell. The evidence was held inadmissible under the proviso to the statute which permits parties to the suit to testify on their own behalf. R. S. U. S., Sec. 858.

On behalf of complainants^ it is contended that Ray must be regarded as a trustee merely, and not as executor, with respect to the subject matter of the suit, and therefore that the case is not within the exception.

The court did not err in suppressing the evidence, in so far as it related to the negotiations for the execution and delivery of the agreement sought to be established. The executor, as such, is a party to the suit, and this brings the case within the letter of the statute, while it is equally clear that it is within its spirit also.

An adverse result of the litigation will be the diminution of the estate in the hands of the executor for distribution under the provisions of the will. The conflict is between the complainant and the deceased, between the living and the dead.

2. The court should also have suppressed the evidence of Daniel P. Greenfield, one of the defendants) which was properly objected to by complainants. This witness was permitted to testify to statements made to him by Mitchell. He said that Mitchell told him and his mother that he had met Nieman on the road and had been invited by him to an oyster feast at his house; that Nieman and his sister were there, and Nieman produced a paper for him to sign and for his sister to witness; witness asked him if he signed the paper, to which Mitchell replied, "No”; and then added, "Mr. Nieman is up to some rascality.” Nieman was not present when these declarations were made, and they were never communicated to him. They were self-serving declarations of Mitchell, and not admissible under any rule of evidence, on his behalf or in the interest of his estate.

*2003. The burden of proof being upon the complainants, it remains to be considered whether the evidence is sufficient to make out their case.

The question is, does the evidence show that Mitchell made, and signed with his mark, the agreement set up by Nieman?

Nieman is a German of some education, but deficient in his knowledge of English. The agreement was wholly written by him. Mitchell was a sensible, shrewd and thrifty man, but could neither read nor write.. He had many business transactions, and was accustomed to sign instruments by making his mark.

The original agreement is before us and. bears the mark of ill usage. It is worn through at the folds, and is badly discolored by contact with some greasy substance. It was produced by Nieman, who says that it had- been mislaid and supposed to be lost; and that after the sale he made a close search for it, by the advice of his attorney,- and found it in a barrel of old papers in the cellar of the house in which he was living some few miles from the city of Washington. He thinks the paper got among some old copies of the New York Christian Advocate that were kept in an organ box, and were afterwards thrown into the barrel in moving.

Defendants do not deny that the instrument was actually written about the time of its date by Nieman with the intention to have Mitchell sign it; but they do deny that it was ever agreed to or executed by him. It was in accordance with this theory that they offered to prove Mitchell’s declarations concerning Nieman’s attempt to procure his signature to such an instrument.

Mrs. Nieman was not offered as a witness. Had she been, her testimony would have to be excluded as her husband’s has been.

The only direct evidence to the execution of the agrees ment is furnished in the depositions of Elise Nieman, the sister of complainant. She lived with her brother until July, 1884, when she went to Parkersburg, Iowa, where she *201was living when her depositions were taken. She says that her brother drew up the paper, that she saw Mitchell sign it by making his mark»' and that she signed it as a witness. This occurred in her brother’s house, and Mitchell, George Nieman, his wife and witness were the only persons present. She said that “ Mitchell had a note against Nieman, secured by a deed of trust on the place, and the talk between them was to the effect that Mr. Mitchell should use and manage the place for the interest due each year upon the debt, and the use of the place was to pay him for the interest and the improvements he might make upon it. Mr. Mitchell said he thought he could manage the place to better advantage for both of them if Mr. Nieman would give him the management and control of it. The substance of the conversation was to the effect that Mr. Mitchell was only to have the place to use and manage and take care of it because he wanted to keep it up, so that his security at Mr. Nieman’s place would be more safe to him. . . .After the paper was executed it was given to Mrs. Nieman, who laid it, together with some other papers, on the organ in the dining-room. The paper was lost in some way and I never saw it again until now.” She said further that once, after the agreement was supposed to be lost, Mrs. Nieman was “ worrying about it,” and she heard Mr. Mitchell say “ not to worry, that he never would cause them any trouble, and would never turn them off the place, and that all he wanted was his just dues.” She further testified that he said,) “all he wanted was what was due him, and that when the place could be sold all he wanted out of it was what was due him, and Mr. Nieman could have the rest of it.” No attempt was made to impeach, or in any manner discredit, this witness, save by asking her if she did not have an interest in the result of the suit, to which she replied she “had no interest except a natural desire to see her brother successful.”

The record discloses some circumstances tending to support the contention on each side. Among these, on behalf of defendants, is the fact that Mitchell seems never to have *202mentioned to any one the existence of any trust in the land for Nieman’s benefit, and disposed of it by his will as if there were none.

Again, Nieman leased the land for two years, from the date of his conveyance^ at the expiration of which he surrendered the possession to Mitchell, who moved thereon, and before his death, according to the testimony of defendant Ray, “spent in all between $1,000 and $1,500 in improvements.”

On the other hand, testimony uncontradicted shows that the properly, at the time of the conveyance to Mitchell for $3,675, was worth about $6„poo. Nieman testified also that he had an offer of $5,000 in cash for it just before the conveyance, which he had refused. There was then talk of building the electric railroad from Georgetown to Tenallytown, which was reasonably expected to run by the-land and enhance its value. There is no evidence of the existence of a situation of which Mitchell was about to take advantage and secure the land by foreclosure. Nor is there any that Nieman was forced into making the conveyance. He and Mitchell seemed to have been on friendly, if not intimate, terms, and the money due had been loaned in varying sums from time to time, until it amounted to the said sum of $3,675. There is nothing in the circumstances surrounding the making of the deed at the very time thereof which tends to negative the fact that there may not have been some purpose of mutual benefit in the transaction. The defendants could hardly be expected to disprove Nieman’s statement that he had been offered $5,poo for the land, and hence we may give little or no weight thereto. But if the land was not worth $6,000 or something near that amount, as testified to, it would have been very easy for defendants to have shown it.

That they did not undertake to contradict this evidence of value is assurance, therefore, of its truth, and the circumstance is an exceedingly strong one in support of the alleged agreement. Why should Nieman, in satisfaction. of a debt *203of $3,675, have made an unconditional conveyance of property then worth $6,000, and which was expected to advance through the building of a railway which was afterwards constructed? We search in vain for a reason in the record before us. It may be granted that the testimony concerning the execution of the agreement is not absolutely free from suspicion, but the circumstances which give rise to it are neither stronger nor more numerous than those which often attend upon the transactions of men,) and may be attributed to negligence, to mutual confidence, and to the too frequent failure of men in health to consider the probability of change in a situation through the death of parties.

In a case where one who has conveyed land by deed absolute on its face seeks to engraft a trust thereon, or to convert his deed into a mortgage by parol evidence, it is eminently proper to require that the proof to entitle him to relief should be clear and satisfactory. The rule is just and equitable. If one choose to rely upon the honor of another, or be careless enough to leave to the chances of oral proof that which could easily be reduced to writing, he has only himself to blame for being brought within a rule which long experience has shown to be in the interest of justice, -as tending to suppress fraud. In this case, however, the complainants did reduce the agreement to writing. There is no uncertainty as to its terms. The sole question is: Did Mitchell subscribe his mark to it? If he had been able to write his name there might probably have been no controversy, for his signature could doubtless then have been proved if genuine!, or disproved if a forgery.

The consequences of his inability to write even his name should not be visited upon Nieman; but rather upon himself if any one. The circumstances surrounding the transaction are not, in our opinion, inconsistent with the truth of Elise Nieman’s testimony. She has either told the truth or a wilful falsehood. It is certain that the agreement was actually prepared by Nieman, about its date and the signature of Elise Nieman, as a witness was subscribed about the *204same time. The agreement then was either actually made with Mitchell and executed by him, or it was concocted by her brother, with her co-operation, to be used in the future for the purpose of defrauding Mitchell or his estate.

After a careful consideration of the testimony we can find nothing to justify the conclusion that the instrument is a forgery and that Elise Nieman has committed perjury in attempting to establish its validity.

It follows from what has been said that the decree appealed from should be reversed, and it is so ordered, with costs to the appellants. The cause will' be remanded, with direction to pass a decree in accordance with the foregoing opinion, in which also the costs in the court below will be ordered paid out of the fund in the hands of the executor.