White v. Coombs

Bowte, O.- J., delivered the opinion of this Court. This appeal is taken by the plaintiff below from the rejection of her prayers and the granting of those offered by the appellee. As the latter refer to the pleadings and evidence in the cause, it is necessary to state their nature and substance briefly. The narr. consisted of two counts : The first for money had and received by Thos.

Devecmon in his lifetime, and payable to Thomas White in his lifetime, and by Coombs as executor since his death. The second, for money had and received by Coombs as executor of Devecmon, since his death, to and for the use of the appellant, as administrator of White. To which the defendant pleaded— 1st. That Thomas Devecmon in his lifetime never was indebted as alleged. 2d.

That defendant never was indebted as alleged. On which issues were joined. In support of the action, among other things, the plaintiff proved by a competent witness, that in the month of November, 1864, the defendant’s testator came to the house of the plaintiff’s intestate during his absence from home, and asked if he could get into Mr. White’s office, and then said that he had .sold a tract of land to Mr. O’Hern for $5,000, and that he wanted to get the papers to draw the deed; that Mrs. Devecmon further said, that her (witness’) father was interested in the matter, for he was entitled to one half of the $5,000. That afterwards witness, by her father’s directions, went to Devecmon’s office to see him about it.

He then told her that $1,250 of the money would be paid the next day, and that he would deposit the half of it in the bank for her father. The plaintiff proved by M. P. O’Hern, that he bought of ⁴⁹⁹ Thomas Devecmon in the month of November, 1864, a tract of land called “Mount Atlas,” for $5,000, $1,250 of which he paid to Thomas Devecmon before his death, and gave a draft for $1,250, which was paid to Mr. Coombs, as executor, and the balance was secured by a deed of trust to Wm. Devecmon ; the title of the tract was conveyed to witness’ daughter. The appellee, to maintain the issue on his part gave in evidence a certificate of survey of a tract of land called “Mount Atlas,” dated in May, 1864, for 47-J acres, on an escheat warrant, issued to Thomas Devecmon; a deed, dated 21st Nov., 1864, from Thomas Devecmon, to S. O’Hern for the same land; a deed of trust dated 13th Dec., 1864, from S. O’Hern to Wm.

Devecmon, to secure to Thos. Devecmon certain sums therein mentioned. The appellant further proved by Wm. Devecmon that his brother Thomas, a short time before his death, gave him, the witness, certain papers from which to write several deeds: among others, the deed to Miss O’Hern; that he did not then give him the name of the tract, but Devecmon told witness that White had a half interest in the land to be conveyed by that deed.

The prayers of the respective parties are founded upon this evidence. The appellant’s first prayer affirms, that if the jury believe that Thomas Devecmon made the declarations testified to by the daughter of Thos. E. White, and that he received the sum of twelve hundred and fifty dollars from O’Hern, on account of the land, they may find for the plaintiff, for one half of the sum so received by Devecmon. The second, that if in addition to the above facts, they find that the defendant (the appellee) after the death of Devecmon, received on account of said purchase money, the further sum of twelve hundred and fifty dollars, then they may find for the plaintiff one half of said further sum of $1,250.

The third, that if they believe from the evidence, that ⁵⁰⁰ Thomas Devecmon received the sum of $1,250 in his lifetime, and that one half thereof belonged to Thomas F. White, the plaintiff is entitled to recover one half of said sum so received by Thomas Devecmon. The appellee’s prayers, reciting the