Fitzpatrick Others v. Fitzpatrick Others

Ames, C. J. The first ground for new trial, set down in this motion, that the judge presiding at the trial admitted the minutes taken by Judge Staples when trying a case, of the testimony of one of the defendants, for the purpose of proving that defendant’s admission, is clearly untenable. The objection made to the admissibility of this evidence, is, that the judge could not recollect the testimony independent of his minutes, nor refresh his memory with them of what the testimony was, but could merely swear that they were taken by him, as judge, in the course of the trial of a case before him, and that he believed them to be correct. Such minutes are taken by every judge in our supreme court and court of common pleas, as a necessary part of his official duty in the trial of causes ; in order, not only to enable him to instruct the jury in the law applicable to the facts, which by law he must do, or to sum up the evidence to the jury, which by law he may do, but to enable him to allow grounds for new trial, founded upon the evidence, under the rules, and bills of exceptions, under the requirement of the *72 statute. Numerous as trials, and, consequently, voluminous as such minutes must necessarily be, to apply to them the strictest rule that can be found with regard to the voluntary exceptional memorandum of an ordinary witness, would be to banish them as a source of evidence for the numerous and important purposes, in the administration of justice, for which they are needed ; since no judge, unless possessed of a superhuman memory, could, in general, truly testify further than Judge Staples testified in this case, that these were his minutes of what took place before him, written by him at the time, and that he believed them to be correct. We think that the fair presumption, decidedly, is, that they are correct; and that if rules of evidence are designed to elicit, and not to obstruct the passage of truth to a jury, they ought to be admitted, as evidence, with such verification of them as, in the nature of things, is possible. It would be quite easy to hunt, up cases which would justify the admissibility of the ordinary memoranda of a witness, unofficially taken to refresh his memory, upon quite as slight a basis of recollection as existed in the case before us. References to some of them may be found in 1 Greenl. Ev. § 437, n. 3. But' such minutes as these stand, and are admissible as evidence, upon their own peculiar grounds. They occupy a place midway between official records and ordinary unofficial memoranda; and are the highest kind of minutes, or entries, as in relation to accounts they are called, made in the course of business. The distinction between memoranda or entries of facts, and memoranda of what is said, adverted to at the argument, has no application to them; since it is the official duty of the judge, because necessary to enable him properly to perform the duties of his office, to take minutes of what is said by witnesses, in giving their testimony. With every guaranty for their general correctness, which official position and duty, and even necessity, that they may answer their immediate purposes, can throw about them, it would be strange, indeed, if they were not receivable in evidence, subject to contradiction, of course, without other confirmation than the testimony of the judge as to the occasion on which he took them, and that he believes them to be correct. See Rex v. Whitehead, 1 Car. & Payne, 67; *73 Miles v. O’Hara, 4 Binn. 110, 111; Eastmm v. Cooper, 15 Pick. 287. The second ground for new trial alleged in the motion, this court has before had occasion to consider in the analogous case of the advertisement by a sheriff of a sale under the levy of an execution on real estate; Childs v. Ballou, 5 R. I. Rep. 537; and we' see no reason, either upon .principle or authority, to doubt the correctness of what is there intimated, that, in such a notice, given to call together purchasers, and to enable them to ascertain, with certainty, what is offered for sale, a description of the premises to be sold, by reference to a plat or deed on record, is sufficient. Any description which can be given will be unintelligible to one unacquainted with the locality, and the more precise, the more unintelligible; and the description of the premises in this notice, to wit, “a lot of land, with the buildings and improvements thereon, situated in the northerly part of the city of Providence, being the lot of land numbered (10) ten on the plat of the land of Samuel Whelden, surveyed and platted by H. F. Walling, July 7th, 1845 ” ; which plat, it is agreed, as well as the mortgage under which the sale was made was- recorded, is quite as intelligible to purchasers, as any that can be imagined. The only other objection to this notice of sale taken at the trial, to wit, that it was not signed by the mortgagee, is equally untenable. The power authorized, nay required, that it should be given by the assignee who might sell under it; and to answer the only purpose of it, in calling together purchasers, it was equally effective whether signed by the mortgagee or not. The third ground for new trial is, in substance, that after the delivery by Martin Fitzpatrick of his deed to Doran, and Doran’s delivery of his deed of quitclaim to Martin Fitzpatrick, which took place on the 19th day of April, 1850, it was discovered that the deed by Fitzpatrick under the power; ran in his own name, instead of that of his principal, Donnelly; whereupon the parties, on the 2d day of May following, came before the city clerk, who was the witness to both deeds, and corrected the error in the first deed by interlineations, and then reacknowledged both deeds, and had both recorded by the city clerk anew, *74 and as of the date of May 2d. What more complete proof of the redelivery of both deeds can be given ? It is old law that “ as a deed may be delivered by words without deeds, so may it also be delivered by deeds without words ” ; the matter depending upon the intent of the parties. Sheppard’s Touchstone, 58, and note 3. It is true that, “ regularly, there may not be two deliveries of a deed; for where the first delivery doth take any effect at all, the ^second delivery is void; ” but we are also informed in the same sentence that if the deed, as first delivered, is merely void, or doth become void by matter ex post facto, and the party deliver it again, “ by this means the deed is become good again.” Ibid. 60. Now, in the case before us the deeds were either good to pass the title as first delivered, or they were not. If they were, the title passed by the first delivery ; and if not, by the second; and so, quacimque via, the title passed. It is evident that this ground for new trial wholly fails. The remaining ground for this motion, that the judge presiding at the trial refused to allow the defendants to protect themselves against the action, by setting up outstanding mortgages made by the father of the plaintiffs, ánd purchased in by one of the defendants after the commencement of the suit, can' find no support, either in principle or respectable authority. In a real action, like our action of trespass and ejectment, the pleas of-not guilty, and of soil and freehold, look to the state of things at or before the commencement of the action; and if matter of discharge accrue to the defendant pending the action, as from the plaintiff’s release, or the like, it must be pleaded to the “ further maintenance of the action,” if it has arisen after suit, but before plea or continuance ; .and puis darrein continuance, if after plea or issue joined. Evans v. Prosser, 3 T. R. 186; Le Bret v. Papillon, 4 East, 502. In the courts of Massachusetts, a mortgage of the ancestor of the demandant, acquired pending a writ of entry, cannot be set up by the tenant to support a title defective at the commencement of the writ, even though pleaded puis darrein continuance. Curtis v. Francis, 9 Cush. 428, 443, 444. Nor was this species of defence aided in case of the mortgage to Mowry and Steere assigned to one of the defendants after the commencement of the suit, by the proof offered,.that in fact the *75 mortgage was purchased by the defendant some three years before the commencement of the action, but, by mistake at the time of purchase, was discharged upon the record, instead of being assigned. By the express words of chapter 149, section 8, of the Revised Statutes, it is enacted, that a discharge so made, “ shall forever afterwards discharge, defeat, and release such mortgage, and perpetually bar all actions to be brought thereupon in my court.” Nothing can be stronger than these words to show that by such a discharge the legal title under the mortgage was discharged, and, at all events, never vested in the defendant until after the commencement of the action. Under the pleas, the question was merely as to the place of this title, whether in the plaintiffs or defendants, at the commencement of the suit; and whilst, on the one hand, we know of no power in a court of law, upon the plainest proof, to reform the deeds and documents' executed by mistake, so as to make them conform to the true intent of the parties, we do not see how, if they could, it would help the case of defendants, unless they could also make their act of reformation, or that of the parties, done pending the suit, relate back and take effect, as of a time anterior to its commencement. For these reasons, this motion must be refused upon all the questions raised -at the trial. As a general rule, no other than such questions can be considered upon such a motion; but where the facts, as allowed by the judge and conceded by both parties, show a fatal defect in the title of the plaintiffs, now relied upon in defence, and which if noticed at the trial could not have been obviated by further proof on the part of the plaintiffs, courts have felt authorized to consider the point as still open, upon such a motion as this, and to dispose of the case in such a manner as justice would seem to require. Slater & another v. Rawson, 1 Metc. 450-458; and see Maynard v. Hunt, 5 Pick. 240-243. Now such a point, which in the hurry of the trial and the sudden introduction of the evidence, escaped the attention of the counsel for the defendants at the trial, has now been brought to our notice. The notice of' the sale under Donnelly’s mortgage, of which an advertisement for the period of three months prior to the sale, in some public newspaper, *76 printed, in Providence, is required, as a preliminary to a sale under the power, is, upon inspection, found defective in the indispensable requisites of naming the time, to wit, the hour of the day, and the place of the sale. Such a defect defeats the whole purpose of the notice, which, as we view it, is to bring together such a body of purchasers, as by fair competition, will insure, as far as this goes, a full price for the subject of sale. Where, as in such a case, the question is simply whether the power be' well executed or not, the question is merely one at law; and so far from being, as argued by the counsel for the plaintiffs, a question in equity only, if there is nothing more in the case, a bill in equity to set aside the execution of the power cannot be maintained. Tichburn v. Leigh, 6 Vin. Abr. 365, pl. 11; 2 Sugden on Powers, ch. 11, § 1, art. 13, p. 180. This defect appears in the only proof brought into the case by the plaintiffs to show the manner in which, as the attorney of Donnelly, Martin Fizpatrick executed the power of sale contained in the mortgage assigned to him, and this proof, so far as has been disclosed, is the only proof upon that subject. It is fatal to the plaintiffs’title; since, if the power was not well executed the mortgage still remains, and the action for the recovery of the mortgaged premises should have been brought by the personal representative of Martin Fitzpatrick, instead of by his heirs. For this cause the verdict must be set aside, and a new trial granted.