Rider v. Maul

The opinion of the court was delivered, October 23d 1871, by Agnew, J. The objection.to the reading of the deposition of Anna M. Denhart cannot be sustained. The deposition was taken on the 23d of July 1861, and was unobjectionable on its face. The defendant alleged that certain portions of it were only hearsay, and to show this offered a deposition of the same witness taken on the 7th of September 1867, after a lapse of six years. The court declined to suspend the reading of the deposition of 1861 to hear that of 1867, taken by the defendant. Clearly this was a matter of sound discretion, not an error. In a proper case a court may hear an objection from the opposite side to exclude offered evidence. But certainly where a deposition has been fairly taken, and the matter testified to is on its face unobjectionable, a court might well hesitate to exclude it on evidence taken by the opposite party six years afterwards, and when a change of circumstances or other influences may have operated to affect the feelings of the witness or his mind or memory. It 'would be more conducive to justice in that case to hear the whole evidence, and then exclude the testimony by an instruction to the jury, if the circumstances warrant it. It is said this course may tend to mislead the jury by biassing their minds with that which will turn out to be incompetent. But certainly we are not to suppose the jury will disregard the peremptory instruction of the judge to exclude it as incompetent. Besides, it is not different from many other matters of evidence which appear to be competent when given, and in the subsequent part of the cause turn out to be incompetent. It is every-day experience in the’ trial of causes that testimony in chief is made to appear to be incompetent by the cross-examination, and yet it is in before the jury. We discover no abuse of the discretion of the court in this instance. The second error is without foundation, the point of the defendant being affirmed, and the opinion of the court as to the right weight of the evidence did no injury, for the jury evidently found the fact of a partition by the Winslow line, as appears by their verdict. The third and fourth errors are equally unfounded, both of the [21] points being affirmed. Of the qualification the plaintiff in error had no right to complain. The case turned on the question of fraud in the defendant in obtaining the legal title from the Latimers, which would prevent him from standing in the shoes of the vendors, and raising the question of a right to specific performance. As a general proposition, a party is entitled to a full and unqualified answer to his point. But when the point may mislead, if not qualified, or when the evidence demands it, it is not only the right but the duty of the court so to qualify the answer as to turn the attention of the jury to the true question in the cause. It is a mistake to suppose that the course of justice must be turned aside by ingenuity in pointing the judge. He is bound to hold the balance in an even poise. The fifth assignment of error in effect asks us to reverse our former decisions in this case, for which we see no reason. The sixth and last assignment presents the only serious question. The defendant’s seventh point asked the court to say that if the defendant became a trustee for the plaintiff’s ancestor of the east half of the tract, went into possession in 1849, and made improvements in that year and down to 1852, then sold 100 acres to Dietrick, who went into possession and made improvements, and continued to reside on the land until the bringing of this suit, the defendant having recorded his deed in 1854, that these facts affect the plaintiff with notice, and the 6th section of the Act of 22d April 1856 will bar her recovery. When this case was here the last time (see 9 P. F. Smith 167), it was decided that the court below erred in holding that the recording of the defendant’s deed was sufficient to put the plaintiff on inquiry. The question now raised is, whether possession of the land from 1849 onward, accompanied by valuable and extensive improvements, together with a title of land to -which they can be attributed, are notice in law of the trust, or are such facts as would enable and require the plaintiff, by reasonable diligence, to have discovered it. But the true question is, not whether these facts are sufficient to bring home a knowledge of a trust or to lead to its discovery by reasonable diligence, but whether they are notice in law of the fraud, or would have led to its discovery by reasonable diligence. By the 6th section of the Act of 22d April 1856, “ no action shall be maintained * * * to enforce any implied or resulting trust as to realty but within five years after * * * such trust accrued with the right of entry, unless * * * such trust shall have been acknowledged by writing to subsist, by the party to be charged therewith within the same period. Provided that as to any one affected with a trust by reason of his fraud, the said limitation shall begin to run only from the discovery thereof, or when by reasonable diligence the party defrauded might have discovered the same. * * * And provided that any person who [22] would be sooner barred by this section shall not be thereby barred for two years from the date hereof.” Had there been nothing in this case but a trust, resulting from the relation Rider held to Jacobs as his co-tenant in taking the legal title to himself, doubtless the point should have been affirmed, for Mrs. Maul, the only child of Jacobs (who died in 1849), having arrived at full age in December 1855, before the passage of the Act of 22d Api-il 1856, would have been bound to bring her action within the two years allowed in the second proviso. Had there been no fraud, the facts stated in defendant’s seventh point were sufficient to put her upon inquiry as to the alleged trust, and to require her to bring her action in season. But supposing her to have been duly prompted by them, and that she had made inquiry of him as to his title, she would have discovered from him nothing more than that he had bought in the treasurer’s deed from John Philliber, on the 9th of May 1842, that he had taken a. new contract from Mr. Gaskill on the 9th of June 1849, and obtained bis deed from the Latimers in 1853. But it is not to be supposed that he would have disclosed his own fraud — that he would have told her he had money in his hands to pay the taxes when the land was sold, that he had procured the original article from Jacobs on a false pretence that he needed it to borrow money, and that he had led Mr. Gaskill to believe that Jacobs’s title was gone by the treasurer’s deed, and was abandoned by Jacobs himself, and that he had thus induced Gaskill to give him a new contract on delivering up the old one he had falsely obtained from Jacobs, and to make him a deed on payment of the balance due on the original contract. Nemo tenetur aeousare seipsum. Yet these are facts it was necessary that the plaintiff should discover in order to reach the defendant’s alleged fraud, and it is very clear that the possession and deed of the defendant would not in themselves lead her to a knowledge of them. The clue to find them was to be sought for elsewhere, and there is no evidence that she found it five years before she brought this action. We discover no error in the answer the learned judge gave to the point. Judgment affirmed. ‘