Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1906-07-19

intention to include in his exception all
land conveyed to the defendant under
the unrccOrded deed, which was a val
id conveyance although until recorder
effectual only against those having &C
tual notice.
The plaintiff not having acquired title
to the demanded premises cannot main
tain this action
Judgment for defendant.
Edora f. Lalnbard VS.. Frank a.
Lambard, both of Sabattus, in a prom
issory note case, following a divorce
suit:
Following is the rescript:
Lombard vs.. Lombard. Whitehouse,
| j. Rescript; no opinion.
This was an action on prOmiSsory
note for $3.50. given by the defendant
to his wife, this plaintiff. June .. 1885.
A decree of divorce between the parties
was entered in September. 1905, but
upon the issue of payment the jury re-
turned a verdict in favor of the defen-
dant. The case comes to this court on
the plaintiffs motion to set aside the
verdict as against the evidence.
The Defendants contention is that
prior to October, 1903 he had occasion
to complain of an improper intimacy
between his wife and one James Mar
shall; that in the hope of removing
any cause for further complaint, he
then proposed to his wife that if she
would give up the old note in question,
pay him 5000 more and give up all in
| timacy with James Marshall, he would
give her a deed of the homestead occu-
pied by them of the value of $500,
though under mortgage to the amount
of $1,000 or S1100; that his wife aSSentcd
| to this, and that thereupOn the house
was duly conveyed to her. He tCstiliCS
| that at that time the note was in his
possession with other papers belonging
| to him in a locked drawer in Lombard
nall, and that prior to the erection Of
| this hall in 1900, the note had been kept
with his other papers in bureau
| drawer in their dwelling house, from
| the time it was given. He claims that
| in his absence. in 1904, his wife. having
possession of his keys, Wrongfuly alb
| Stracted the note from his drawer
| in Lombard hall and caused this action
to be brought upon it.
On the other hand the plaintiff tcs-
titles that at the time of the convey
! ance of the house to her in October,
| 1903, no mention whatever was made
| Of this note: that it formed no part
| of the consideration of the deed and
| that it has never been paid. She and
her sister, Mrs. Wyman. both testify
that it was given at Mrs. Wyman's
house. where the plaintiff and her hug
band were living at the time, and that
it remained there in drawer with
| oem other papers until about 1900 when
| the plaintiff took it and carried it to
Lewiston to consult Mr.. Shelton in re-
gard to it. They further testify that it
was returned to the drawer in Mrs.
| Wyman's house the same day and re
manned there until the commencement
| of this suit. Mrs. Wyman states that
her husband knew that the note was
| kept in the house all these years but
| he was not called as a witness to cor
| roborate the testimony of his Wife.
Neither was Mr.. Shelton called to tcSti-
fly that the plaintiff consulted him in re-
gard to the note. 1t also appears that
| in the testimony given by her upon an
| application for an allowance for sup
port pending her libel for divorce. she
made no claim to ownership or possess
sion of this note. but stated that all
| the property she had was the house and
a little money in the bank.
II appears, however. that in his form
or testimony, given at the trial of his
| libel for divorce. the defendant also
failed to mention the surrender of this
note as q part of the consideration for
| the deed of the house. But since the
testimony relating to that special phase
of the controversy before tho court III
each of these instances would natural
" be emphasized. these apparent in
consiStencies cannot be deemed of the
highest importance as impeaching tes-
timony.
J-pon the vital question Of the pay
mcnt of the note. there was a direct
conflict between the testimony Of the
plaintiff and that of the defendant. No
other person appears to have been pres
ent at the conference between them
which resulted in the conveyance Of
the house to the plaintiff in October.
1908. Unon this issue the burden of
prof was upon the defendant, and from
the evidence reported it seems difficult
10 find clear preponderance OF owl
dence in his favor. But the jury had
| the advantage of testing the crodlhll-
! ity of the witnesses by their appearance
upon the stand as well as by their
conduct and former testimony. The de-
PENDANTS contention was not inner
entity unreasona BILE or improbable and.
if believed, his testimony was sufficient
to support the verdict After careful
examination of the evidence, it is the
| opinion of the court that the verdict
| is not so manifestly wrong as TO justify
the exercise Of the supervisory power Of
the court to set it aside.
Motion overruled.
Tbrcl1ph tho efforts Of the Lawrence,