Brill v. Christy

DOAN, J. An action was brought in the district court of Maricopa County by the appellee, as plaintiff, to recover the undivided one fourth of a band of cattle branded thus, CR, and for.an accounting by appellants (the defendants) of their dealings with said cattle, and for a division thereof, and the delivery to the appellee of his alleged undivided one-fourth interest therein. The complaint alleged that one William Roarke was the owner of an undivided one-fourth interest in a certain band of cattle, and that James Roarke, since deceased, was the owner of the remaining three-fourths interest; that- William Roarke conveyed his undivided one-fourth interest to William James Roarke, who in turn conveyed the same to the appellee herein; that, after the death of James Roarke, Cora Brill qualified as administratrix of the estate of the deceased, took possession of the entire band of cattle, and claimed title thereto to be in the estate of the said James Roarke, deceased. The answer of the appellants admitted the possession of the cattle to be in the appellant Cora Brill, administratrix; denied the ownership of the appellee, and his' right to possession, of the one-fourth interest in said cattle; and alleged the estate of James Roarke, deceased, to be the owner of, and the appellant Cora Brill, as administratrix of the said estate, to be entitled to the possession of the entire band of cattle. Upon the trial of the cause the plaintiff, to sustain his title, introduced evidence to prove title in William Roarke to the one fourth of the cattle, in question, and offered in evidence an instrument in writing executed by William Roarke to Wil — 219 — liam James Boarke, acknowledged before a notary public in California, and recorded in Maricopa and Yavapai counties, Arizona, conveying to said William James Boarke an undivided one-fourth, part of a certain band of cattle, together with their offspring, which band of cattle is known by the following brand, B, which said brand is duly recorded on the records of Yavapai County, and which said band of cattle was lately in the custody and charge of James Boarke, who died on February 26, 1898, at Phoenix; also one undivided one fourth of a certain band of horses, which said band was known by the same brand above set forth, and was likewise in the care and custody of said James Boarke at the time of his decease. Plaintiff also offered in evidence, a bill of sale executed by William James Boarke to William Christy, the appellee herein, acknowledged before a notary public in Phoenix, Arizona, and recorded in Maricopa County, Arizona, selling and conveying to the said William Christy “an undivided one-fourth interest in and to that certain band of cattle and horses known as the Boarke cattle and horses, and branded as follows, to wit, B, on the left hip of both horses and cattle.” The case was tried to a jury. The counsel for the respective parties stipulated in open court that the jury return a special verdict upon the question submitted to them, “Is the plaintiff, William Christy, the owner of the undivided one-fourth interest in the cattle described in the complaint?” The jury returned a verdict saying, “We, the jury, in answer to the question submitted to us, ‘Is the plaintiff, William Christy, the owner of the undivided one-fourth interest in the cattle described in the complaint?’ say, ‘Yes.’ ” The court thereupon gave judgment to the effect that the appellee, William Christy, was the owner of the undivided one-fourth interest in the cattle, and ordered an accounting, and a division thereof, and the delivery of the said one fourth, from which judgment and the denial of a motion for a new trial the defendants appeal, and assign as error: First, the court erred in admitting in evidence plaintiff’s Exhibits A and B, the-conveyances aforementioned; second, the. court erred in rejecting defendants’ Exhibit No. 1. The only question presented in the case is the admissibility in evidence of the three exhibits offered. It is conceded that the band of cattle in question were run — 220 — ning at large upon the range, in Maricopa County, Arizona; that three fourths of the cattle, rightfully belonged to the estate of James Roarke, deceased; that the administratrix of the said estate held possession of the entire band, claiming title thereto; and that Christy, the appellee herein, claimed title to the one-fourth interest through the conveyances above mentioned, from William Roarke to William James Roarke, and from William James Roarke to himself. Evidence was introduced, without objection on the part of the. defendants, showing that at the time of the execution of the conveyance to William James Roarke, the grantor, William Roarke owned the one-fourth interest in the. cattle that is now in controversy. Defendants objected to the introduction of plaintiff’s exhibits in evidence for the reason that they purported on their face to be conveyances by bill of sale of certain cattle on the range; that they were not such instruments in writing as are provided for by the statute for the conveyance of cattle or brands of cattle upon the range, and consequently were immaterial and irrelevant. This objection does not in fact go to the instruments offered, but attacks the transactions they tend to prove, and is more plainly stated in argument by counsel in the words: “Under this statute a purchaser only acquires title to cattle upon the range by a compliance with its terms. A bill of sale to cattle ungathered and upon the range, unaccompanied by actual delivery, which bill of sale only purports to convey the cattle themselves, and not the brand, is ineffectual to convey title to either the brand or the cattle, just as much as a verbal sale would fail to convey title, to real estate.” The question is presented, Does act No. 6 of the Laws of 1897, termed the “Live-Stock Law,” provide for the conveyance of cattle on the range by bill of sale without actual delivery? An examination of that act discloses no express provision of this character, and the question therefore arises, is such transaction dependent upon special statutory authority, or is it permissible under the general laws for sale of personal property, unless inhibited by special statute? The appellants contend that the law recognizes no power on the part of the owner to sell cattle, except that conferred by the act in question, whereas the appellee claims that the authority to sell is recognized at common law, and can be exercised in the usual method of conveying personal property, except — 221 — where otherwise provided by statute, and that, as the statute does not provide any particular manner in which cattle such as these in controversy should be sold, the owner could sell and transfer the same in like manner as any other personal property. In Tome v. Dubois, 6 Wall. 548, 18 L. Ed. 943, the United States supreme court held that “in a sale of personal property actual delivery is not essential, as it is well settled that when the terms of the sale are agreed on, and the bargain is struck, and everything the seller has to do with the property is complete, the contract of sale becomes absolute between the parties without delivery, and the property and risk vest in the purchaser”; and, unless there is some restrictive statutory provision to prohibit it, a deed or bill of sale, properly executed and acknowledged, attesting such sale and transfer, would be competent evidence to establish the same. In Nance v. Barber, 7 Tex. Civ. App. 111, 26 S. W. 151,—a case very similar to the one at bar,—the. question was whether a sale of certain cattle was valid. The sale had been made by bill of sale, unrecorded, of one hundred and sixteen head of cattle, which were, as the court held, running on the range. No segregation of the cattle or delivery of them had been made. The court said, referring to a statute almost identical with ours:' “In sales covered by this statute, it cannot be doubted that, in order for the purchaser to acquire title to the property, he must take a written conveyance, and have .the same duly recorded. But, in our opinion, the statute does not apply to the sale from Nance to the plaintiff. By its terms it is limited to the transfer of live-stock as they run in the range, by the sale and delivery of the brands and marks. . . . Such transactions were commonly known as and designated a ‘sale of a mark and brand.’ It is to these sales that the statute in question refers, and, as it places restrictions upon the right of an owner to sell his property,—one of the most valuable rights incident to ownership,—we do not feel at liberty to extend its meaning to transactions that are not embraced within its terms. . . . This was not a transfer by sale of the marks and brands.” Does the aforesaid act No. 6 prohibit the sale or transfer of live-stock in the manner here under consideration? An examination of the statute shows conclusively that it does not. It makes special provisions for using and recording brands and for holding and — 222 — disposing of live-stock in several instances, but these are provisions for the benefit of the owner of live-stpek, and only affect the manner of holding, handling, branding, and transferring live-stock as therein provided, and do not affect the general rights of owners of this class of property to sell or transfer their live-stock in any other manner than those therein specifically defined. The plaintiff’s exhibits were therefore properly admitted in evidence, under the general rules of evidence, and were, material and relevant, as they tended to establish the fact in issue. The second assignment of error alleges that the court erred in rejecting the defendants’ Exhibit No. 1, which was a certificate of the secretary of the live-stock sanitary board that the brand on the left hip of cattle and on the left thigh of horses “was duly recorded under the provisions of section 50 of act 6 of the nineteenth legislative assembly of Arizona, for James Roarke, in the territorial brand-book No. 1, page 18,” with the seal of the board attached. The defendants offered this certificate in evidence for the purpose of showing prima facie title to the cattle and brand mentioned in the certificate to be in the party in whose name it was recorded. The plaintiff objected to the. introduction of the exhibit for the reason that it was not proper evidence of title; that it was incompetent for the purpose as alleged by the party offering it, and established no title whatever to the. cattle in question in the defendants, as against the plaintiff; and for the further reason that it was a self-serving declaration,—which objection was by the court sustained. The appellants claimed that under the provision of section 50 of act No. 6 of the Laws of 1897 the certificate was admissible for the purpose of showing prima facie title to the cattle to be in the estate of James Roarke, deceased. Said section 50 provides that “at any time before the first day of July, after the passage of this act, it shall be the duty of the persons owning brands and marks, to file the same with the said board and the said board shall record the same in a book of brands and marks, and shall furnish the owners certificates thereof under the seal of the said board, free, of charge, which said certificate shall be competent evidence of the registration of such brands, and prima facie evidence of ownership.” If the ownership of the brand or the fact of its registration was in controversy, — 223 — the provision quoted would he applicable; but, as we have already seen in the consideration of the former assignment of error, the title to the. brand is not in controversy. The conveyance did not purport to be a transfer or conveyance of the brand. Neither is the registration of the brand an issue in the case. Section 50 applies solely to the requirement for and the manner of the registration of brands, the proper evidence of such registration, and the ownership of the brands thus registered, and. does not deal with the cattle that may be in such brands, the mode of their transfer, or the evidence of their ownership. There is a very material difference, between the certified copy of a record and the certificate of an officer to what a record contains. Under the. general rules of evidence, a public record can be proven by a copy thereof duly certified to by the proper and legal custodian of the record, but the courts will not assume that the. conclusions drawn by such officer from the inspection of the records are correct. A certificate, therefore, of an-officer as to the contents of such public record, based upon his summary or recital of what it contains, is not evidence, except in such instances as such certificate may be expressly constituted legal evidence by statute. Jones on Evidence, par. 556; Tessman v. Supreme Commandery, 103 Mich. 185, 61 N. W. 261. While, therefore, section 50 of the said act constitutes the certificate, of the registration of a brand competent evidence of such registration, and prima facie evidence of the ownership of such brand, it does not make such certificate either competent or prima facie evidence for any other purpose. Consequently,' neither the registration nor the ownership of the brand being in question, the provision of section 50 would not constitute such certificate evidence in this case. Not being a certified copy of any record, it was not entitled to be admitted under the general rules of evidence, and it was therefore properly excluded. These being the only errors assigned, the judgment of the district court is affirmed. Sloan, J., and Davis, J., concur.