Ballard v. Perry

Moore, C. J. —The bill of exceptions to which our attention is called by appellant’s first assignment of error presents quite a number of exceptions, which were taken to; — 362 — various rulings made during the progress of the trial of this cause in the District Court. These questions, however, are neither difficult nor important, and a brief summary of our views on them, in the order in which they are presented, will suffice for their disposition: 1. The motion of appellant for a severance should have been granted. The causes of action presented in the petition are in the main distinct and several as to the different defendants. In addition to this, the appellant, though claiming under a common source of title with his co-defendants, also claimed independently of them an interest in the land, under the title asserted to it by the plaintiff. We see no reason why the motion should have been refused on account of the time at which it was made. It seems to have been filed several days before the trial of the cause. If the court were not called upon to act upon it until that time, we cannot perceive that any injury could probably accrue to the plaintiff from this delay, or from the fact that he was not notified at an earlier stage of the progress of the suit that a severance would be asked for by the appellant. Although the motion should have been granted, if this were the only error in the case it might well be questioned whether the judgment should on account of it be reversed, unless there be reason to suppose that appellant had been hindered or embarrassed in a full and fair trial on the merits of his cause, or that injury to him of some character had probably resulted from the refusal of the court to grant the severance. 2. The exceptions to the depositions of the witnesses, Robinson, Crosby, Allen, Turner, and Butler, were properly overruled. The certificates of the officers before whom they were taken show a substantial, though not a literal, compliance with the directions of the statute. The law requires the answer of a "mtness to interrogatories shall be made under oath in presence of the officer who takes the depositions. If the certificate show that this has been — 363 — done, it is in this particular sufficient. Ho technical form of certificate is prescribed or required. • The indorsements on the depositions show that they were delivered by the officers who took them to the postmasters, and that they were transmitted by mail to their places of destination. This is all that the statute directs. The record shows that notice and a copy of the interrogatories for Allen were waived, and the commission issued by consent. The objection on this account could not therefore be maintained. Hor is there any force in the objection, that the officer by whom Turner’s deposition was taken “ was an interested party on the record.” His interest was with the defendants, by whom the objection was made, and not with the plaintiff, for whom the deposition was taken. The depositions should not have been excluded simply on account of the interlineations and erasures. The context and connection in which they are placed evidently show they were made at the time the depositions were taken. It was not charged, nor in fact was there anything disclosed upon which to base the slightest suspicion, that there had been any fraudulent alteration or tampering with the depositions. 3. The bond from Presnall to the plaintiff, Perry, of February 4, 1838, was properly received in evidence. We see no valid objection to its probate for record by W. B. Perry. He was made a witness of its execution for the purpose contained and expressed in it by the parties. We cannot perceive why he could not testify to the facts which authorized its admission to record. A Witness for this purpose is not required to testify with reference to the date of the instrument, or that of his signature to it as a witness, It certainly cannot be said that the second acknowledgment of the execution of an instrument impairs its validity. If its execution as a common-law instrument were to be proved, the acknowledgment of the grantor, in cases where resort could be had to secondary evidence, — 364 — . would be admissible to establish its validity against the grantor, and all parties claiming under him subsequently to such acknowledgment. The probate and record, unless impeached as provided in the statute, are intended as a substitute for, and to supply the place of, the common-law proof of execution, and there can certainly be no good reason why it should not be held as effectual in this case as if its execution were established under the common-law rules of evidence. 4. The deed from Presnall to the plaintiff', of April 6, 1858, added nothing to the strength of the plaintiff’s case. Its recitals were certainly not evidence against the appellant, nor could it have authorized a recovery by Perry, if he had no cause of action at the commencement of Ms suit. ' If the defendants had relied upon an outstanding title in Presnall to bar the plaintiff"’s recovery, it might have been legitimately received to repel such defense. Ear is there any valid objection to the introduction of the legal title acquired by the plaintiff after the commencement of his suit, in conformity with his pre-existing equitable right. But in such eases, where adverse rights are claimed to have been acquired prior to the execution of the deed, and it contains recitals which might influence or mislead the jury, it should only be admitted with a full and clear explanation of its legal import and bearing in the case. And although the court, in overruling an objection to such a deed, may have correctly announced the purpose for which it could be received, if, on the final submission of the case to the jury, a proper instruction as to its effect was asked, it should be given. If, therefore, the refusal of the court to give the first charge asked by the defendants had been presented by a proper assignment, we should have held there was error in the action of the court in this particular. This deed was also objected to for want of a seal to the notary’s certificate of probate. The objection, if es — 365 — tablished, should have been sustained. The instrument offered in evidence was not the deed itself, but a certified copy of it, from the records of the office of the county clerk. The fact cannot, therefore, be determined by an inspection of the paper presented to the court. But, as the certificate of the notary declares that he has affixed his official seal to it, and the clerk should not have recorded the deed unless this were the case, we think it may be presumed that the seal was properly attached, although in the copy from the record its place is not indicated by a scroll and the initial letters, [l. s.,] as is customary in copies of sealed instruments. The clerk who recorded this deed may not have supposed this necessary or proper. 5. The deposition of Wageman should not have been excluded for the reason stated in the bill of exceptions. The only legitimate deduction from the facts stated is, that the defendants took the second deposition out of abundant caution. If the objections to the first deposition were not valid, the defendants should not have been deprived of the benefit of the testimony because they had used the precaution of taking the second deposition. If there were a discrepancy in the depositions, the plaintiff' might in the proper manner have availed himself of the fact to lessen the weight of the testimony with the jury. 6. The court did not err in refusing to admit the testimony offered to raise the presumption of a grant of the land in controversy to Hibbins. The facts relied upon were merely the preliminary steps in obtaining a grant, and corresponding facts and circumstances consistent with and usually accompanying such preliminary steps. The evidence offered shows that Hibbins was equitably entitled to have received a grant, and that one would have been made to him if the proper diligence had been used to procure it; but it does not repel or negative the abundant proof which the defendants themselves offer, showing that this equitable right was not consummated into a grant. A — 366 — grant may be presumed in some instances, even if it is not believed in fact ever to have existed, but there is no pretense that this is a case of that character. The only presumption of a grant to be made in this case is, more properly speaking, a conclusion of fact, deduced from circumstantial evidence, proving the former existence of a grant now lost or destroyed. A deduction of this kind does not legitimately flow from the evidence proposed, and therefore, as we have said, it was properly rejected. In doing this the court seems to have gone further than was necessary or proper in announcing the opinion that defendants could only establish a title in Hibbins by a certificate under the land law of 1837. But if the defendants had other evidence than that offered to establish a title, they did not even suggest it, and we cannot suppose they were prevented from doing so by this merely abstract opinion of the court. 7. The testimony adduced was not sufficient to establish the authenticity of the letter claimed by the defendants to have been written by the plaintiff to Murphy, and it was properly excluded. 8. And the objection to the deposition of the witness, Mays, was properly overruled, because not made -in the proper time and manner.' 9 and 10. But we see no reasons why the depositions of McKimpson, Books, and Spaulding, offered by the defendants, should not have been permitted to go to the jury. Especially as the plaintiff had introduced as evidence McKimpson’s declarations, while in possession of the land, to show the character of his possession, it would seem the defendants might very properly have used his deposition as evidence to the same point. The testimony may be only cumulative, but as both sides seem in their manner of presenting the case to rely as much upon the number of their witnesses as the intrinsic strength of their testi — 367 — mony, it is not seen that those on the one sid'e more than the other should have been excluded. The second error assigned is, that the verdict'and judgment in favor of the plaintiff for the entire tract of land in suit are contrary to law and evidence. The fourth assignment presents substantially the same question in the more specific form of an objection to the instruction of the court to the jury, to the effect that prior possession of the land in dispute by the plaintiff would deprive the defendant of the protection of the statute of limitation to any part of it, under a subsequent entry and actual and exclusive adverse possession of a part of the tract for a sufficient length of time under other circumstances to have completed the bar of the statute. This charge is unquestionably erroneous. The instruction is based of course upon the supposition that the plaintiff’s entry was under the superior title; this, without dispute, gave him constructive possession to the extent of the boundaries defined in his title. But it is equally clear that the entry and actual occupation of the defendants were an ouster to the extent of their actual and exclusive adverse possession. The constructive possession which in such case the plaintiff held prior to the entry by the defendants is in fact and law as completely abrogated and destroyed as if the defendants had forcibly deprived him of an actual possession. (Barr v. Gratz, 4 Wheat., 213; Codman v. Winslow, 10 Mass., 151; Mathews v. Ministers of Trinity Church, 3 Serg. & Rawle, 509; Hall v. Powell, 4 Serg. & Rawle, 465; Orbison v. Morrison, 1 Hawk., 468; Brimmer v. Proprietors of Long Wharf, 5 Peck, 131.) The other assignments of error are too general to require their examination by the court. But for the errors already indicated the judgment must be reversed, and the cause Remanded.