Donahue v. McNulty

By the Court, Currey, J. This is an action of ejectment to recover possession of the one undivided seventeenth part of certain mining ground, situate in the County of Sierra, of which the plaintiff1 alleges he was the owner and in the possession in June, 1863, and of which he was then «usted by the defendants. The defendants, by their answer, deny that they wrongfully ousted the plaintiff, and further answering, aver that on the 16th of October, 1861, three judgments were obtained in a Justice’s Court in said county against the plaintiff and others as defendants, described as the Buffalo and Richardson Mining Company, and that under executions issued on such judgments, the right, title, and interest of the plaintiff was sold, and afterwards conveyed by a constable to Lawrence Rolan, one of the defendants in this action; and they further aver that each of the defendants owned, at the time this action was commenced, and was entitled to the possession of an undivided portion and interest in the premises, which portions, in the aggregate, comprehended the entire property. As to the title and interest of the plaintiff to the undivided seventeenth part of the premises at the time the sale under — 414 — the executions transpired, there seems to have been no issue made by the answer of defendants, or by the evidence adduced at the trial. The decision of the case, it will appear, rests entirely upon the effect and competency, as evidence in the case, of the judgments obtained in the Justice’s Court, and the executions issued thereon, and the alleged sale of the plaintiffs’ right, title, and interest in the premises, and the deed executed hy the constable and produced in evidence. In each of the cases in the Justice’s Court, John Donahue was one of the defendants, and was served with summons, and Lawrence Rolan, who became the purchaser at the sale, and is the grantee named in the deed, was also a defendant, and was served with summons. The defendants served made default, and there was no appearance in any of the cases on the part of the defendants who were not served with process. In two of the suits, judgments were entered against all the defend- , ants who were named in the summons, and in the other, judgment was entered against all the defendants named in the summons, and also against three other persons not mentioned therein. The recitals in the deed are that a writ of execution issued out of the Justice’s Court of a Justice of the Peace therein mentioned, directed and delivered to James F. Dixon, constable, commanding him that of- the goods and chattels of P. Donahue, M. Donahue, L. Rolan, B. Kenrief, P. Cody, H. F. Richols, P. Daley, J. Wiseman, R. Anderson, J. Doe, H. Hoe, and R. Roe, composing the Richardson and Buffalo Company, he should cause to be made the moneys in said writ specified; and if sufficient goods of said persons could not be found, that then he should cause the same to be made of the lands of which the last named persons were seized; and then it is further recited in the deed: “And whereas, because sufficient goods and chattels of the last named persons in the said writ could not he found, whereof the said constable could cause to be made the money specified in said writ, he, the said constable, did, in obedience to the said command, levy on, take, and seize all the estate, right, title, and interest of the — 415 — last named persons in and to the lands,” etc., described, and “ did, on the 9tli day of November, A. D. 1861, sell all the right, title, and interest of the last named persons in and to the said premises,” etc., “ at which sale the right, title, and interest of the last named persons in and to said premises, were struck off and sold to L. Nolan for the sum of five hundred and sixty-two dollars.” And after these recitals follows the granting portion of the deed, whereby the constable, “By virtue of the said writ, and in pursuance of the statute in such cases made and provided, for and in consideration of the sum of money hereinbefore mentioned,” grants, bargains, sells, and conveys, “ unto the said Nolan, his heirs and assigns, all the estate, right, title, and interest of the said persons against whom the said writ of execution has been issued as aforesaid, of, in, and to all the following described propertyand then follows a description of the property, with the usual habendum clause. Several of the defendants against whom judgment passed in all of the suits in the Justice’s Court, and who were named in the executions issued on such judgments, were not named as judgment debtors in the execution recited in the deed, and two of those who were therein named were not defendants or parties in any of the judgments and executions given in evidence. It does not appear from the deed who was the judgment creditor in the execution recited, nor what was the amount due by the judgment on which such execution was issued. In connection with the introduction in evidence of the judgments, executions, and deed, the defendants examined the constable, who testified that he received from the Justice of the Peace the three executions so offered in evidence, and that he duly levied such executions on the property and mining claim described in plaintiff’s complaint, including the whole of plaintiff’s right, title, and interest in the same, before he sold said claims, or any part thereof, and that he sold said claims and plaintiff’s interest therein and conveyed the same to the defendant, L. Nolan, by the deed in question, “ and that such sale and conveyance was under and by authority of said executions.” — 416 — The plaintiff’s counsel interposed objections to the judgments, executions, and deed offered and given in evidence. The objection to the deed was that it was irrelevant and inadmissible in evidence, because it was not connected with any of the judgments or executions offered in evidence; that it did not refer to any of them ; and, also, because it did not purport to convey the property of the plaintiff, John Donahue; and, further, that it did not purport to be the deed of any officer authorized by law to make such deed, and that the same was void. The Court overruled this objection, and the counsel for plaintiff excepted. When the testimony was closed, the plaintiff’s counsel requested the Court to charge the jury that the deed in question was not even prima fade evidence against plaintiff’s claim of title and right of possession, unless they believed from the evidence before them that plaintiff’s interest was actually sold and conveyed by the deed in evidence. The Court refused so to charge, and the plaintiff excepted. The jury rendered a verdict for defendants against the plaintiff, on which judgment was entered. A motion was made for a new trial, and denied, and the appeal is from the order denying a new trial, and from the judgment. It is not necessaiy in order to dispose of this case to determine as to the validity of the judgments obtained in the Justice’s Court. In respect to these judgments, and the executions issued thereon, the only question necessary to be considered is, whether the deed offered and given in evidence bears any dependent relation thereto. The deed, as we have seen, professes to have been executed by the constable, as a conveyance of the right, title, and interests of certain persons therein named in and to the premises in controversy, which were, before the date thereof, sold by the constable upon a writ of execution issued out of a Justice’s Court, commanding the constable that, of the property of certain persons therein mentioned, composing the Richardson and Buffalo Company, he should cause to be made the moneys in said writ specified. The appellant was not one of — 417 — the persons named in the writ recited in the deed; nor is there anything apparent on the face of the deed to warrant the intendment that the writ of execution therein mentioned was issued on any one of the judgments produced in evidence. To show that the truth was otherwise than as recited in the deed, the constable who made the sale and conveyance was examined as a witness, and testified in respect to the matter as already appears. The testimony of the constable was not competent to establish any facts having the effect to contradict, alter, or add to the terms of this deed. In the consideration of a deed, the terms of which are plain and unambiguous, the Court should limit its inquiry as to what the words of the deed express, without regard to any intention independent of the words. (2 Cow. & Hills’ Motes, 571, Third Edition, and cases there cited.) Where a deed of gift imported an absolute estate in fee in the donee, and was capable of being satisfied as such, parol evidence was held inadmissible to show that the donor intended to give a life estate only, with a limitation to the defendant. (Pooser v. Tyler, 1 McCord Ch. 18.) Mor can it be shown by parol that by mistake one tract was inserted in a deed instead of another, unless it be in a suit to reform the deed and correct the mistake, (Bell v. Morse, 6 M. Hamp. 205,) or that part of the premises described were intended to have been excepted (Jackson v. Smith, 12 John. 427; Hovey v. Newton, 7 Pick. 29; Jackson v. Roberts, 11 Wend. 426; Locke v. Whiting, 10 Pick. 279); or that a deed professing to convey all was intended to convey a part only. (Barkley v. Barkley, 3 McCord, 269; Paine v. McIntier, 1 Mass. 69; Child v. Wells, 13 Pick. 121; Gittings v. Hall, 1 Harr. & John. 14; Beeson v. Hutchinson, 4 Watts, 442.) So, parol evidence was held inadmissible to show that an execution, on which a levy and a sale had been made, had been withdrawn, and the levy abandoned by the plaintiff, in contradiction to the Sheriff’s deed, (per Spencer, Ch. J., in Jackson v. Vanderheyden, 17 John. 168,) or to contradict the recital or show that the land was sold — 418 — under a different judgment and execution than those recited in the deed, though such evidence may be admitted to show a fraud in the sale. (Jackson v. Sternberg, 20 John. 50.) The rule laid down in the last two cases cited, in regard to the conclusiveness of a recital in a deed, should be limited in its operation to the party making the recital and those who claim some right and interest under the deed which contains it. The officer who makes a sale and executes a conveyance of land under and by virtue of a judgment and execution, must necessarily make some reference in his deed to the authority under which he acted and to the character of such authority. This is essential for the purpose of showing a transmission of the debtor’s title in the property to the purchaser and grantee thereof. This is done by a recital of certain facts, constitutive of the officer’s authority to sell and convey. And when this is done, he and those who claim under the deed are estopped from denying the truth of the facts recited. But such a deed is not evidence of the matters recited as against strangers, and least of all, as against those who claim adversely to it. (Jackson v. Roberts, 11 Wend. 436; Penrose v. Griffith, 4 Binney, 231; Carver v. Jackson, 4 Peters, 88.) There is nothing in the deed in question which is evidence of title in the defendants or any of them of the right, title, and interest of the appellant in the demanded premises, at the time it is alleged, on the part of defendants, the property of the appellant was sold; but, on the contrary, the deed shows upon its face that the execution under which the property is claimed to have been sold and conveyed was not issued against the appellant as a defendant therein, and it also shows upon its face that the interest of the appellant in the demanded premises was not attempted to be sold or conveyed. The objection to the deed was well taken, and should have been sustained; and the instruction which the plaintiff requested the Court to give to the jury was proper, inasmuch as the deed and the testimony of the constable was received in evidence. — 419 — Upon the facts of the case as they appear in the record, the appellant was entitled to a verdict and judgment, as demanded in his complaint. The judgment is therefore reversed and the cause remanded for a .new trial.