Martin v. Anderson

By the Court. McDonald, J. delivering the opinion. [1.] The judgment of the Court overruling the motion for a continuance, we affirm. No diligence was used to procure the evidence of John W. Both'well. The counsel transmitted interrogatories by mail to the Clerk for a commission. He looked after them no further, and it was about two months before they were returned to him. He received them about two weeks before Court. He then sent them, by mail, to Jefferson county for execution, and they had not been returned. The terms of the statutes to enable parties to obtain discoveries at law from the opposite party were not complied with, and the plaintiffs were not bound to answer. [307] [2.] The motion of defendant’s counsel to strike out two demises in the plaintiff’s declaration, one from Merriwether and the other from Robins, on the ground, solely, that no evidence had been submitted to the Court or jury to prove a title or interest in them, or either of them, in and to the tract of land sued for, was properly overruled by the circuit Judge. The action of ejectment is a fiction. John Doe is the plaintiff, and his name is used by the claimant for the purpose of recovering possession of land from which he alleges he has been ousted. Fictitious leases are executed, or confessed to have been executed, from the claimant and persons from whom he bona fide claims title, to John Doe, and the titles held by these lessors are submitted in evidence to the Court and jury to prove title in the lessors, as authority to lease. If a sufficient title is shown in one of the lessors to authorize a recovery, the mere non-production of proof, title, or' authority from the other lessors is not sufficient to warrant the Court to strike out the leases or demises. It might be different, if a motion to strike out were predicated on evidence to show that the plaintiff' had laid demises, without any kind of authority, express or implied, from persons holding a good title, for the purpose of supporting a forged or a fraudulent title, on which he might not be. able otherwise to recover. Doe ex dem. Hurst and others vs. Clifton 4 Ad. & El. 809, 31 Eng. C. L. Rep. 136. On the trial of ejectments, .on several demises, we will remark that the Court might, with much propriety, charge the jury to specify in their verdict the demises on which they predicate their finding, if they find for the plaintiff. Sometimes several persons have distinct interests in the premises sued for, and in all such cases there should be several demises. Tenants in common should lay several demises; joint tenants may lay one or several demises at their election. Tidd’s Prac. 1205. There are authorities, and the most approved, that joint tenants should always lay a joint demise. The special finding we have sug [308] gested above is necessary in some cases, and might, in all cases, prevent confusion in executing writs of possession. [3.] The certificates of the several officers of the State,.tendered in evidence, were offered to establish the fact that the grant for the tract of land sued for was issued, by some means, to the wrong person. They prove that the tract of land was drawn in the land lottery, and that it was not drawn to a fictitious name, and that the drawing was legal. The difficulty arose afterwards. The grant offered in evidence was to William Anderson, and the proof of the facts proposed to be made by the certificates cannot divest him of his title, and could not affect bona fide purchasers claiming through him. [4.] But the certificates themselves are inadmissible on another ground. They certify to facts, or to the non-existence of a name in a particular relation in the offices which they hold. They have certified to no copy or transcript of any record, documentor paper of file in the offices under their control. The laws on this subject have reference to certificates of officers, authenticating files, or records &c. attached or belonging to public offices, and not to facts, for both statutes on this subject contain provisos that the Court may require the production of the originals certified to. To mere facts an exparte deposition is not admissible, and the statute does not make an exparte certificate of a fact admissible. [5.] The defendants’ counsel then swore Arthur Hood, Esq., plaintiff’s attorney, and propounded the questions to him set forth in the statement of facts in this case, which he declined answering, and the Court sustained his refusal. An attorney at law is protected from answering to facts which came to his knowledge by the confidential disclosures of his client, during the relation of attorney and client. It is the privilege of the client; but he is bound to disclose the name of his client. That disclosure involves no breach of professional-confidence. Levy vs. Pope, 1 Moody & Malkin 410, [309] 22d Eng. Com. L. Rep. 343. Chirac vs. Reeinicher, 11 Wheat. Rep. 294. But if Anderson Avas a fictitious person, there-could be no such relation or confidence. He certainly could answer as to that. But he Avas asked if Anderson had any interest in the land. Whether he had or not, Hood’s knowledge, if he be a real person, must have been derived from him, and he could not be compelled to give his opinion or judgment on his client’s title. 11 Wheaton’s Rep. 295. He ought to have been required to answer all the question, except that which required of him his opinion of Anderson’s interest in the land, provided, by his answers, to the other questions, it appeared that Anderson Avas, in fact, his client. If he was not, the admissibility of the evidence would depend on other principles. [6.] The testimony given to support the suggestion of the death of Anderson was insufficient for that purpose. The two witnesses who testified never knew him, had never seen him or heard of him. So far as their knowledge or evidence extended, no such person had ever existed. The death of a person necessarily implies that that person once had an existence, and the death cannot be established by the evidence of witnesses who never heard of him, as a living person, or of his death. [7.] We consider the charge of the Court to find for the plaintiff, as a strong expression of the opinion of the Court on the facts of the case, and the peremptory terms of the act of 1850 leave no discretion with the Court. That act pronounces it error. Judgment reversed.