Cotes v. Cotes

¶1I concur in the affirmance of this judgment. The action was not to recover the possession of property conveyed by the defendant's father to the plaintiff, but to recover -from the defendant a portion of the proceeds of certain property which, under an arrangement between the plaintiff and the defendant, had been paid to the defendant when the property was sold. It is conceded that the legal title to the property had vested in the plaintiff by the conveyance from the defendant’s father. The question as to the right of the plaintiff to recover from the defendant the portion of the proceeds of the sale of the property which he had given to her at the time of the sale must be determined by th© circumstances existing when the property was sold and the money paid to defendant. Neither the plaintiff nor the defendant, therefore, derived his or her title to or interest in this money through a deceased person. There is, however, another reason why the objection to the ■defendant’s evidence of the declaration of her father was not well taken because it appears that the witness was only asked to say what took place between the plaintiff and the defendant’s father after the plaintiff came into the room. In answer to that, the defendant testified merely to what the father said to the plaintiff. The question objected to was as to what took place in the plaintiff’s presence; and that question was not objectionable unless it involved a personal transaction with the defendant. It there was any testimony which afterwards came in and which would come within the condemnation of the section of the Code cited, the plaintiff should have called attention to it, and either specifically objected to it or moved to have it stricken out. The story as told by the defendant was much more probable than that told by the plaintiff. The burden of proof was upon the plaintiff to establish his right to this money by a preponderance of evidence; and the court below having decided in favor of the defendant, we would certainly nob be justified in disturbing the decision. The judgment is affirmed, with costs.