Spect v. Gregg

By the Court: It is not necessary to inquire whether the record of the Spanish document, purporting to be a deed from Manuel Jimeno to* Thomas 0. Larkin and John S. Missroon "was erroneously admitted in evidence. Both parties to the present action claim to deraign title from Larkin and Missroon, and the conveyance to them from Jimeno was not necessary to the plaintiff’s case. If, therefore, the court below erred in admitting the record, it was an error "which could not have injured the defendant. The deed from Larkin and Missroon contains a sufficient description of the land in controversy, the same being part of the “town of Colusa.” The power of attorney from Larkin, Missroon, Seawell, and Hastings to Carpenter was properly acknowledged by Sea-well. There is no proof in the record that Eames, who pretended to acknowledge its execution for Larkin and Missroon, as their “agent,” was in fact such. [201] At the trial, the plaintiff swore that he did not have the possession of the power of attorney. But there' was no proof of the execution of the power by Hastings. (Code of Civil Proc., Sec. 1855.) Nevertheless, the certified copy of the power was admissible, the same having been duly acknowledged by Seawell. The objections taken by defendant to the instrument purporting to be a deed of conveyance from Larkin, Missroon, Seawell, Hastings (by Carpenter, attorney), and Hughes to Chenery and Hazelton, were: 1. That Carpenter had no power to execute it. 2. That the acknowledgment was insufficient. 3. That the deed was not in pursuance of the- power. 1. Carpenter derived power from Seawell through the letter of attorney above mentioned. 2. The acknowledgment substantially complied with-the statute. 3. If the conveyance from Seawell, by Carpenter as attorney in fact, was on condition, it was on condition subsequent, and passed the title to the grantees therein named. But the power of Carpenter, under the letters of attorney, was not limited to the making of conveyances which should recite that they were made “for purposes of actual improvement,” etc. He was authorized “to sell and dispose of” any lots—and the words do not constitute a limitation of his general power. The District Court did not err in denying defendant’s motion for nonsuit. Defendant appeared, at that stage of the trial, as a simple trespasser; but even if it could be assumed that he was a tenant in common, the ouster was proven by the averment in the answer denying plaintiff’s title and right of entry. The jury may have found as a fact that the deeds, under which defendant claims, did not include the lands in controversy. If the jury so found, their verdict did not necessarily involve a disregard of the instructions of the court in that regard. There is found in the transcript no specification of insuf [202] ficiency of the evidence to sustain the finding of the jury that the land in controversy was not within the description of defendant’s deeds. Judgment and order affirmed. A petition for a rehearing having been filed, the following opinion was delivered. By the Court : In his petition for a rehearing, appellant avers that there was no evidence to sustain a finding that the lands in controversy were not within the calls of the defendant’s deeds. He argues from this that the jury must have disobeyed the instructions of the court when they found a verdict in favor of plaintiff. But the instruction of the court was hypothetical, and was to the effect that if the lands were within the description contained in defendant’s deeds, they should find a verdict for defendant. It must be assumed, therefore, as appellant assumes, that the jury found that the lands ivere without the calls of the deeds through which defendant deraigned his title. If, as alleged in the petition for rehearing, there was no evidence to sustain the finding of the jury upon that issue, this is a case of a finding against evidence; and it has repeatedly been held that, to set aside such a finding, the bill of exceptions must contain a specification of the particulars wherein the evidence is insufficient to sustain the finding. The record contains no specification of an insufficiency of evidence to uphold a finding that the lands in controversy were without the calls of defendant’s deeds. Rehearing denied. [203] JANUARY TERM, 18J6.