Gilman v. Riopelle

Cooley Oh. J. The exceptions to the rulings of the Circuit Judge, upon which the plaintiff in error insists in this court, will be noticed in the order in which they appear in the record. The action was ejectment, brought by Riopelle to recover two parcels of land, the one containing twenty acres and — 157 — seventy-four one hundreths of an acre, and the other one-half an acre, in private claim sixty-one, in the township of Ecorse, both of which parcels lie east of the north branch of the Ecorse river, and between the river and the northern line of the surveyed township number three south of range number eleven east. The plaintiff (below)' had no paper title, but claimed the land by long continued possession derived from Ambroise Riopelle, to whom the claim was originally confirmed. No evidence was given in the case to show that the land was ever patented to any one, and it was conceded by counsel on the argument, that it never had been. I. To show the confirmation of private claim sixty-one to Ambroise Riopelle, the plaintiff introduced a document from the General Land Office, as follows: “Extracts from field notes of Aaron Greeley, surveyor of private claims 1809.” “No. 29 River Rouge, description No. 118, confirmed to Francis Trudell, commencing,” &c. [ Here follows description in full.] “No. 30 River Rouge, description No. 61, confirmed to Ambroise Riopelle, commencing at a post standing on the south border of the River Rouge, between this tract and a tract confirmed to Francois Trudell, thence south twenty-nine degi'ees west two hundred and forty-nine chains and ten links to a hickory tree, standing in the line of St. Comb, thence north seventy degi'ees, thirty minutes west, eight chains, eighty-four links to a post, the southwest corner of a tract confirmed to Louis Visieve, thence north twenty-nine degrees east, two hundred and fifty-six chains sixty links, to a post standing on the south border of the River Rouge, thence along the boi’der of said river down stream south thirty-one degrees east, ten chains eight links to the place of beginning, containing two hundred and twenty acres and seventy-four hundreths of an acre. Detroit, 6th December, 1809. Aaron Greeley, surveyor of private claims.” — 158 — '■ “No. 31 River Rouge, description No. 119 confirmed to Louis Visieve, commencing” &c. (Here follows description in full.) General Land Oefioe, April 11, 1868. I, James M. Edmunds, Commissioner of the General Land Office, do hereby certify that the annexed plat and field notes are true and literal exemplifications of the plat and field notes of Claim No. ,61 on file in this office. A copy of the plat of private claims on the River Rouge, showing claim sixty-one with claim 118 on one side and claim 119 on the other, was attached to this document, but. no question arises upon that. The defendant objected to the admission of this copy of the field notes in evidence,' because it did not purport to be a true copy of the whole of the original, and because it did not appear to have been, by the person or officer having charge of the original, compared with the original, and to be a true transcript therefrom, and of the whole of such original. The Circuit Judge overruled the objection. So far as this objection was based upon a variance between the form of the commissioner’s certificate and the form prescribed by our statute for the authentication of copies of public documents ( Comp. L. § 4308), the ruling of the Circuit Judge was clearly correct. The mode of authenticating the documents, records and proceedings of-any of the departments or courts of the United States, is-governed by the laws of the United States, and by the' practice of such departments and courts, and not by the statutes of the State. — Lacey v. Davis, 4 Mich. 140. The form of 'this certificate is the usual one, and it is sufficient. A more serious objection arises upon the fact that, while the copy purports to embrace the field -notes- of claims 118. — 159 — and 119, the certificate of the commissioner does not expressly refer to them, but the words employed refer in express terms only to the plat and the field notes of claim 61. It is therefore argued that, so far as the field notes of claims 118 and 119 are concerned, there was no authentication whatever; and this objection appears to me to be well based in fact, whether sufficient in law to exclude the evidence, or not. It does not necessarily follow, however, that because something is incorporated in such a paper which the certificate does not cover, that the paper is to be excluded even as to the matters which are well certified. If those matters which are not certified are immaterial, and cannot affect the case one way or the other, there is no reason for. wholly -rejecting the evidence. And even if they might have a bearing in the case, the fact that they are not authenticated may be a sufficient reason' why the portion of the document relating to them should not be read, but cannot be ground for rejecting another and entirely distinct and separate portion thereof, which is authenticated in due form. In the present case, the field notes of claims 118 and 119 are not material or pertinent to the case, except as they may assist in defining the boundaries and identifying claim 61. But whether material or not, the objection of the defendant, which went to the whole document, and not simply to that part of it which related to claims 118 and 119 was clearly, I think, not well taken, and properly overruled. Had he objected to the reading of that portion which related to those claims, and been overruled, we might be required to examine the question whether that portion was material in the case or not; but the objection actually taken being too broad, and covering that part of the paper which was clearly admissible, the question of the materiality of the rest is not, I think, properly before us. II. The second exception relates to the admission of evi — 160 — dence offered by the plaintiff, to show the value of the premises in 1845. To understand the ruling on this subject, we must see how the case stood at the time it was offered. The plaintiff had given evidence, tending to show, that before, at and after the evacuation of this country by the English, under Jay’s Treaty, in 1796, Ambroise Riopelle exercised acts of ownership over the land in question, built a house thereon, and claimed it as his own; that about 1837-8 or ’9, Joseph Yermet vent on to the place as a tenant of Dominique Riopelle; that in 1842, Alexander Riopelle went upon it as tenant of said Dominique, and that he, in that year, put Abraham Blanchet on the place, also as said Dominique’s tenant, and that while said Blanchet was so in the occupancy thereof, on July 8, 1845, he took a quit claim deed of the lands from Yermet, purporting to convey a fee, at the expressed consideration of two dollars and fifty cents per acre. Through intermediate conveyances, the defendant claimed title under this deed, while the plaintiff claimed that, in 1851, after he had acquired Dominique’s title, he let Augustus Yieux have the place as his tenant, and that defendant, as son-in-law of Yieux, occupied the premises under the lease to Yieux, in pursuance of an express agreement with the plaintiff. This being the position of the case upon the evidence, the plaintiff was allowed, against the objection of the defendant, to show that the value of the premises in 1845 was $25 per acre. The object of this evidence was to raise a' presumption, that when Blanchet took the deed from Yermet in 1845, at an expressed consideration so greatly below the real value of the land, it could not have been understood or supposed that he was acquiring the fee thereby, but rather that he was receiving the conveyance of a leasehold interest only. I do not perceive much force in this evidence, both because the title, being founded only on possession, could hardly be expected to command such a price as it would if — 161 — perfect of record," and also because the consideration expressed in a deed is no very satisfactory evidence as to what the real consideration was which the party paid. The statement of the consideration, however, is open to explanation, and the circumstance that the title'is not of record is one to which it is to be presumed the jury will give due weight All the surrounding circumstances which can have any bearing in showing whether Blanchet took possession as tenant or as owner of the fee, ought to be allowed to be put in evidence, and, as having some relevancy, I think it was competent to contrast the real value of the land with the price which Blanchet paid for the title, right or claim which he bought. Standing alone, this fact can have no force whatever in opposition to a deed apparently conveying the fee; but it might have some weight in a case where the other evidence left in doubt the character of the claim which Blanchet made to the land. III. The plaintiff gave further evidence, tending to show that while Dominique Riopelle claimed the land and exercised acts of ownership over it, and prior to the time when Joseph Yermet went into, possession, one Seabrook being-then on the land, and Antoine Yermet acting as agent for the plaintiff, Joseph Yermet went to said Antoine and inquired of him, if he would let him, said Joseph, have the land; and that Antoine replied that if he could buy out Seabrook, and Dominique was willing, Joseph might have the land on the same terms on which Seabrook held it. The evidence of this conversation was objected to, but admitted, and we think rightfully. The defendant regards this evidence as having been admitted to characterize the possession of Joseph Vermet, and as not admissible on that ground, because at that time Joseph was not in possession. This, however, was not strictly the ground on which it was received. The evidence was one step towards establishing- a contract between Joseph Yermet and Dominique Riopelle, by which the former would — 162 — become the tenant of the latter; and if such a contract was oral, and was followed by the surrender of possession by Seabrook to Joseph. Yermet, it cannot well be claimed the evidence of the negotiations Avas hearsay evidence. It Avould be clearly competent to prove such a contract by either of the parties to it, but it would be equally competent to prove it by any other person who was present at the time and heard it. IV. The plaintiff then proved, by Antoine Yermet, that while Dominique Riopelle exercised acts of OAvnersbip over the land, there was a house upon it, supposed to have been built by one Laribell, which witness threw down by order of said Dominique; and he then asked the witness, with a view to sIioav the nature of the act of Dominique, as being in pursuance of his claim of title: “Why did Dominique Avish the house thrown down? This question was objected to as immaterial and irrelevant, but the objection was overruled, and the Avitness replied, “because he wished no one trespassing on the farm. Laribell went on to settle, and I tore it doAvn.” It Avas entirely competent, I think, to show that Dominique Riopelle caused the house to be thrown down, in pursuance of his claim of -ownership, and in order to exclude any claim of possession on the part of Laribell; but this question was not properly framed to call out such evidence, nor was it obtained from the answer of the witness. He is not asked what Dominique said, but what his wishes were; and we do not know from his ansAver that he had any further means of knowing the purpose of Dominique, in directing the building to be torn down, or his wishes in regard to it, than such inference of motive as any third person might draw from his causing the destruction. It Avas not competent for the witness to testify to the motive of Dominique, unless, accompanying the direction, the motive was expressed; and this is not shoAvn to have been the case. — 163 — Y. The next exception relates to the refusal of the court to receive in evidence a tax deed from the Auditor General to Abraham Blanchet, dated November 30, 1846, and given in pursuance of a tax sale, made October 6, 1845, for delinquent taxes of 1843. I shall notice the objections to this deed as they are made in the brief of the plaintiff.' 1. That Blanchet was in the occupancy and possession of the land from 1842 to 1852, covering the whole time of the accrual of the tax title, and that, therefore, the title is bad under the prior decisions of this court. — Lacey v. Davis, 4 Mich. 150; Tweed v. Metcalf, Ibid, 586. This objection is not tenable, because, in the first place, it assumes that the possession of the land by Blanchet during the period in question was an undisputed fact, and there is nothing upon the record to show whether it was so or not. Where a party objects to the evidence on the ground that certain other evidence put in by himself makes it immaterial and incompetent, he must first show to the court that the fact supposed to be proved by such other evidence is not controverted in the case. Otherwise, he is not to assume that it is conclusively established until the jury have passed upon it, and any evidence which is competent on the theory that the jury may find against him, is tó be received. A more conclusive answer to the objection is, the fact that Blanchet’s possession, when the taxes accrued, only goes to the validity of the tax deed as a conveyance of the title, and not at all to its admissibility as evidence. The statute under which the deed was given made it prima facie evidence of the correctness of all the previous procéedings, and it was, therefore, clearly admissible, however conclusive might have been the other, facts which would show its invalidity. 2. The second objection to the deed is based.upon a claim which appears to have been made by the defendant that the statute of limitations had run in his favor — he — 164 — having occupied the land ten years under a title derived from Blanchet, the tax purchaser. — Laws of 1842, p. 133. The plaintiff is clearly correct, I think, in claiming that this statute of limitations does not apply in favor of a party who was in possession under some other claim — whatever may have been its nature — at the time of obtaining the tax title. The statute clearly intends that the party who is to have the benefit of the limitation shall enter, or shall have entered, into the actual possession of the lands, under his tax deed; and, if it were otherwise, a wide door would be opened to frauds on the part of persons who, being in possession of lands and bound to pay the taxes, shall attempt to cut off the rights of other persons by buying in the land for taxes which their duty to the public and to such third persons required them to pay. But this again is an objection which goes to the effect and sufficiency of the deed, and not at all to its admissibility. 3. It is insisted that the description in the tax deed is fatally defective. The description is “ the following described land, situated in the County of Wayne, to wit: that part of private claim sixty-one, lying east of the north branch of the river Ecorse, in township 3, south of range 11 east, containing twenty acres and seventy-four one-hundredths of an acre, be the same more or less.” The record shows that about one hundred and sixty acres of private claim sixty-one lies north of the north branch of the Ecorse, and that the north line of township three north of range eleven east would divide this nearly in the middle. There would therefore be in that part of private claim sixty-one, lying north of the north branch of the Ecorse, and in township three south of range eleven east, something like eighty acres of land. The plaintiff claims that it was clearly the intention in making the tax sale, to sell only twenty acres and seventy-four one. hundredths, and that it is impossible to locate this in any particular part of the larger quantity; but inasmuch as definite and permanent boundaries are given, the deed must be — 165 — held to convey all the land within those boundaries, notwithstanding the quantity is much greater than that mentioned. This is on the familiar principle that the incorrect portion of the description • is to be rejected where that which remains is sufficient, and that definite and permanent monuments are to control distance and quantity. The plaintiff also claims that the description in the tax deed was not sufficient for the purposes of assessment, under the tax law of 1843, under which the assessment was made, because, not being “ the subdivision of any section authorized by the United States for the sale of public lands,” it was necessary, under subdivision two of section sixteen of the Act of 1843 — S. L. p. 66 — to “state the name or number of the lot or tract, or by what other lands it is bounded.” In this case the number of the lot, a part of which was sold, is given, and definite and well-known boundaries which at each end separate the part sold from the remainder; and this, I think, complies with the statute. The requirement that it shall be described by the lands which bound it, has reference to those cases in which the tract is not known by name or number, and in which such a description would be most likely to attract the attention of the owner or other person interested in the payment of the taxes when it came to be- spread upon the tax roll, or advertised for the purposes of a sale. I think, therefore, that the objections to the admissibility of the tax deed were not well taken, and that the court erred in excluding it. YI. The defendant having given evidence tending to show some claim of right to the land on the part of Toussaint Biopelle, the eldest son of Ambroise Biopelle, called Augustus Burdeno as a witness, and, having proved by him that he was acquainted with the custom among the old French settlers as to giving their farms to their eldest sons, asked him this question: “What was the custom among the old French settlers as to giving away their farms to their — 166 — eldest sons?” This question was objected to,- and excluded by the court. ■ The purpose of this question evidently was to raise an inference that Ambroise Riopelle 'had given to Toussaint, his eldest son, his possessory right to the premises; but however common may have been such gifts among the class of people to whom Riopelle belonged, it is plain that the frequency, of the practice could not warrant' an inference of a similar gift in any other case where .no direct evidence of it had been given. Whether such evidence would have been receivable in support and 'corroboration of direct evidence, that Ambroise Riopelle had put his eldest son in possession of the land, we need not inquire oil this record. For the rulings, admitting'-the witness Vermet to testify to the wishes of Dominique’ Riopelle in tearing down the Laribell house, and excluding the tax deed from. evidence, the judgment must be reversed, with costs, and a new trial ordered. The other Justices concurred.