Peck v. Bacon

Ellsworth, J. The first question is, as to the propriety of the amendment, made by inserting the fourth count. Some, if not each of the other counts, set forth substantially the same ground of action, — the same injury, — the same complaint,— viz. fraud in the sale of a certain patent-right for an undivided fourth part of the states of Mississippi and Tennessee, excepting eighteen counties in the latter state. The new count contains only a further and more minute statement of the manner and extent of the injury. If authorities were wanted to sustain the amendment, the following are decisive. Prior v. Duke of Buckingham, 8 J. B. Moore 584. (17 E. C. L. 114.) Wyatt v. Cocks & ux. 10 J. C. Moore, 504. (17 E. C. L. 154.) Brown v. Crump, 6 Taun. 800. S. C. 1 Marsh. 609. Atkinson & al. v. Bell & al. 8 B. & Cres. 277. (15 E. C. L. 218.) Dale v. Gordon, 3 Moore & Scott, 339. (30 E. C. L. 307.) Mixer v. Howarth, 21 Pick. 205. Hancock v. Wentworth, 5 Metc. 440. 451. Philips & al. v. Bridge, 11 Mass. R. 242. 246. Cumings v. Rawson, 7 Mass. R. 440. Leighton v. Leighton, 1 Mass. R. 433. The objection to the testimony of Crofut is equally groundless. After he had narrated a conversation between himself and Bacon, the defendant, of some two hours’ length, about the sale of this patent to the plaintiff, in the course of which the defendant said, “ that the best way of selling patent-rights, was, taking negotiable notes and indorsing them, that no questions could be made about the patents he said, on cross-examination, that he did not know, that this remark was connected with the other conversation. It will be recollected, that the plaintiff had claimed, that this mode of selling a patent-right, was the exact thing done in this case ; and that the son of the defendant had sued the plaintiffs on one of the notes for 500 dollars, given for this patent-right, and had recovered. Much other testimony had been introduced in connexion with said conversation and said remark, to prove the fraud alleged. We cannot say, the remark of the defendant might not be relevant and important. The doubt or speculation of the witness can avail nothing. The jury were to judge of the connexion and effect of the parts of this extended [388] conversation. Besides, this is the defendant’s motion; and it - belongs to him to show that this testimony could not be relevant ; whereas we think it might have been, and in fact, was, relevant and important. The defendant objects, that, at the time of his sale to the plaintiff, he had the right which he sold, notwithstanding the prior deeds from Stephen Rogers, of ten counties in Tennessee to Oscar Willis, and five to Abner B. Jones; because, he says, the deeds to Willis and Jones, from their grantor, Stephen Rogers, were given before the deed from Raymond to Rogers was recorded. The defendant, before he purchased, well knew of the existence and contents of that deed, though it had not been recorded ; and that the deed of Raymond to Rogers, dated the 24th of June 1839, and recorded the 2nd day of Avgust 1839, was a substitute for the lost deed. The court below correctly held, that actual notice to the defendant prevented him from setting up this weakness in the titles of Willis and Jones. Recording is no constituent part of the conveyance, and is required only to give notice. Our own statute requiring deeds of land to be recorded, is more positive than the 11th section of the patent-law of Congress now in force, and more so than the 4th section of the repealed law of Congress of 1793 ; but here and elsewhere, under like statutes, courts of equity, at least, have held, that actual notice is enough. This question was decided, as we now hold, under the former patent-law, in Holden v. Curtiss, 2 N. Hamp. R. 61. and, so virtually, in Dobson v. Campbell, 2 Sto. R. 319. We find no error in the judgment of the superior court; and likewise advise that there be no new trial. In this opinion the other Judges concurred. New trial not to be granted. Judgment affirmed.