Horton v. Arnold

[220] By the Gourt, Cole, J. Several of the objections taken to tbe admission of tbe depositions of Horton and Wormley are not true in point of fact, as an examination of tbe record will show. It is claimed that tbe certificate of the commissioner was not sufficient for tbe reason that it does not state that tbe witnesses were sworn to testify to tbe truth, the whole truth and nothing but the truth ; nor does it state that the depositions were reduced to writing by the commissioner, or- deponents, or some disinterested party in his presence or under his direction. The commissioner certifies that each of the witnesses was duly and publicly sworn before giving his evidence, and there is nothing whatever to throw any suspicion over the manner of taking the deposition. Under such circumstances we think we are authorized to assume that the commissioner properly performed his duty, and that the depositions were reduced to writing by a disinterested party. The depositions were taken on commission under the old circuit court rules, which, among other matters, say that the commissioner shall certify in the return that the witness was duly sworn or affirmed before giving his evidence. Rule 61. The commissioner conformed to this rule in making out his certificate, and we deem it sufficient in that particular. It is said that the statute provides that when the deposition of any witness without the state is taken under a commission, the same is to be used in the same manner, and will be subject to the same conditions and objections, as if it had been taken in this state. Sec. 25, chap. 137, R. S. And in case the deposition is taken within the state, the magistrate is required to certify that before the examination the witness was sworn to testify the truth, the whole truth and nothing but the truth relative to the cause. Sec. 17. We think, however, that section 25 was not intended to prescribe or regulate the manner of taking depositions without the state, but rather relates to the nature and competency of the evidence, when taken ; in other [221] words, that foreign depositions may be taken under tbe existing rules, but will be subject on tbe trial to any objection wbicb might exist to them .if they were taken within tbe state ac-, cording to tbe statute. When for any reason tbe evidence would be incompetent if taken within the state, tbe same objection might be made to it when taken without the state on a commission. Inasmuch, therefore, as the certificate conforms to the rules of the circuit court upon the subject, it is sufficient. A still further objection taken to the deposition is, that it was taken upon a second commission illegally issued. This objection is clearly untenable. The case shows that copies of the affidavit and rule for the commission, and of the interrogatories, were served upon the defendant’s counsel. The first commission, however, was by mistake issued out of the circuit court, while the action was pending in the county court. So on the return of this commission, as it was a nullity and could not be used, a proper commission was issued, on the papers already filed, from the county court. We discover no error or irregularity in this which should exclude the depositions. And as these were the material objections to the depositions, they were properly disregarded, and the evidence admitted. Again, it is insisted that the county court erred in excluding evidence tending to show that the vendor of the appellant had no title to the house for which the note sued on was given, but that it was owned by parties in Chicago. The consideration of the note was a wooden building and the lease of the lot on which it was situated. The appellant purchased the building and lease of one La Dow, and he swears that he went into the possession of the premises under this contract of sale. It appears that he remained in possession until the building was destroyed by fire. He now claims that he can show a want of title in his vendor as a defense to the action. But this is a mistake, as the following authorities conclusively establish: Case v. Hall et al., 24 Wend., 101, and cases there cited; Story on [222] Sales, § 203. It is obvious that the appellant relies upon a breach of the warranty of title, although he does not offer to show that he was disturbed in his possession by the true owner, if the property did not belong to his vendor. “ Possibly the owner may never claim and enforce his title, or if he does, the seller may settle with him.” And therefore he cannot set up the title outstanding in a third party, even if it exists, to defeat an action brought for the purchase money. The county court ruled that all fraudulent representations made by the vendor in respect to the title might be given in evidence, so that there is no room for complaint upon that ground. If fraud had been practiced in the sale, by which the appellant had been injured, an opportunity was given him to show it. We think the finding of the court that the plaintiff duly demanded of the defendant the payment of the chattel note in meat, and that the payment was refused, is amply sustained by the evidence in the cause. The judgment of the county court is therefore affirmed.