The Scranton tribune. [volume] (Scranton, Pa.) 1891-1910, 1898-05-05

ceedings to restore a lost deed in the
case of Nichols versus Nichols. The
claim of the petitioner. James Nichols,
is that on or about July 20, 1880 his
father DIR. Hiram Nichols, who was
the owner of certain land in South
Abingdon township by deed duly eX-
ecuted and acknowledged conveyed to
him two certain tracts of land desCrib-
ed in the petition, Of forty acres each,
one known as the Rose lot and the
other sometimes spoken of as the Ed
win stone lot. This deed, 1t is alleged,
was in consideration of natural love
and effection and the nominal sum OF
81, and was delivered the same day
It was executed, but not having been
recorded, has since been lost, and re-
sort was therefore made TO the statute
to reproduce it. Judge Archibald says:
without regard to the evidence brought
forward to rcfute It, We have no hesita-
tion in saving that the evidence pro
duced on the part of the petitioner is not
of the character to sustain the proceed
ing The first thing to be noted with
regard to 1t is that, assuming that while
standing alone and uncontradicted, II
might warrant the conclusion that at
one time a deed to the petitioner from
his father for the land in controversy
had perhaps been made, it does not prove
the existence of the deed set forth in
the petition,
DEED OF 1880.
The deed there described Is one bearing
date July 49, 1880 or thereabouts; but
according to the testimony of the petit
toner there was a deed i'm existence as
early as 1869, and this was the same one
he saw again in 1855. upon his return
home from the west after an absence of
ten years, and identified by the sigma
ture of Esquire Hall, before whom it is
said to have been acknowledged, it must
be regarded as the same deed to have
been seen by Andrew S. Meyers a year
later In August, 1886. In fact, as any
one deed duly executed and delivered
would be as effective to convey the land
as half Il dozen. we are warranted in
concluding that If there ever was
deed of the character contended for the
same deed is referred to by all the wit
nesses who speak Of any, and this could
not have been a deed of the date given
in the petition which is that which we
are asked to restore.
But the discrepancy in dates is the
least to be said with regard to this evil
dcnce. The most serious thing about II is
that it establishes no delivery. The petit
toner is bound to prove not only the
existence Of the deed described but also
that II was delivered to him. and this
he has utterly failed to do. Much of the
evidence he has produced discloscs moth
ing more than a benevolent purpose en-
tertained by DR.. Nichols to give his son,
James, by deed or will some part of the
| land in controversy, other land by the
same course to be given to his son, Asa
| family. George Myers, for instance, tes-
titles to a conversation with Dr. Nichols
some thirty-tive years ago in 1861 or 'G2,
in which he said that he intended that
James Nichols should have forty acres
of the Rose land.
Thomas l.. Norton also states that in
| 1875 he had a conversation with DIR.
| Nichols in which the latter, referring to
| the land which he owned, said that he
should give the first forty acres now
named in the bill to Asa's wife and chill
| dren. and that his son, jim, should have
| the balance Further that he had often
| heard Dr. Nichols speak of the land out
| side of the forty acres as Jim's, and that
he had decided one part to Asa's family
| and the other part to Jim.
TESTIMONY RECITED.
The opinion recites the testimony of
| e. G. Meade, w. N. Clark Ezra Vos-
| burg, which is substantially the same
as that of George Meyers and Thomas
| Norton. In relation to James Nichols,
| the opinion goes on TO say:
| HIS story IN substance is tnat a1ter MS
| return home from the west, i'm April,
| 1885, his father one day went to his bed
| room and came out with some papers in
| his hands. and taking him to the barn
| united the Toli and handed him one OF
| the bundles saying: This is a deed for
| the Rose property and the balance" re-
| ferring, by the balance, to the Stone
| tract. The petitioner took the deed in
| his hand, but did not read it fully; he
| said. however. his fathers and mother S
| signatures and the name of II. V. Hall,
| the justice of the peace before whom it
was ACKNOWLEDGED. 1t was the same
! deed he had previously seen i'm 1863
II says to him." continues the petit
| toner. this is the same deed you showed
| me once before. And he says yes the
| same deed. He handed it back to his
| father and told him to keep it and what
| he had as long as he lived. and his
| father answered: 81 Will do just as you
| say The filed suggestion so made,
and his fathers acquiescence in IT en-
| tirely dispels the idea of delivery, nor
can IL be now claimed as it is by this
course that the deed was left in DIR.
Nichols hands for safe keeping merely.
1t was rendered and refused. If We be-
lieVe his own testimony, and being put
aside in this way from however COM
! mendable a motive IL remained ia the
| hands of the grantOr, undelivCred and
| imperative, and nothing can be taken
under ii. An this at the most would go
to show that it is not lost deed, but an
undeliveTed one that we have to deal
with, if anything, and that is virtually
no deed at all.
Judge Archibald then deals with cvi.
dence adduced to show that DR.. Nichols
had conveyed lots TO other parties from
the Edwin Stone tract and that further
more hv his will bearing the date OF
Sept. 2l 1856. a few days before his
death, he disposed of all his other reaI
estate, including the Stone tract TO hi,
four daughters. That the benevolent
purpose of the father TO the son had beer
thwarted by the conduct of the latter
after his return from the west,
TRACES CONVERSATION.
w. s. Frace testified that he had a
| conversation with the doctor The lat
ter said that Jim had left his brother
Asa's, whore he had stayed for a while
and then went TO live with Nelson Clark
whom the father considered unfriendly
il not a direct enemy.
, Tho doctor felt hurt and wanted jim
TO come home, and TO Mr. Frace he said
"Well, J am mad. ] have been insulted
I told Jim If he came home ana went tC
} work I would give him a deed for the
, Rose lot of forty acres and buy him a
pair Of mules ana set him TO work, and
hs said: If you give me those forty
acres ! will sell them so quick / viii
make your head SWIM" c. r. Weiss
heard the doctor say his head was no.
going to swim, and he intended 10 give
J | the land 10 his son ASa's wife Andrew
J. Smith said thar when he went tC
draw IN" doctors will the doctor plainly
said he should give Jim nothing, aut
! that he tried 20 40 something for him
but no was unworthy Of ii.
In the face Of this evidence, says Judg,
Archibald, Il Is useless TO press the peti
tiol upon us. An issue has been asked