Terry v. Berry

— 520 — By the Court, Hawley, C. J.: This is an action of ejectment to recover ninety-nine and ninety one hundredths acres of land in the town of Winnemucea upon which are situate the buildings known as the “Humboldt Reduction Works.” The plaintiffs claim the property by virtue of a sheriff’s deed, they having purchased said premises at sheriff’s sale under an execution issued upon a judgment by confession in favor of said plaintiff and against J. Ginaca and A. Gintz, obtained on the fourteenth day of April, 1874. The title of Ginaca & Gintz to the land in controversy was derived by virtue of a sheriff’s deed under an execution sale in the suit of A. D. Splivalo against the Humboldt Canal Company, which claimed this and other lands by virtue of an act of congress, entitled “An act to grant the right of way to the Humboldt Canal Company through the public lands of the United States,” approved June 12,1866. (14 U. S. Stat. 64.) Ginaca & Gintz also claimed title in fee-simple to the premises by virtue of a deed executed by the trustee of the town-site of Winnemucca, on the fourteenth day of November, A. D. 1874. The defendant Yan Lennep was, at the time of the commencement of the suit, in the possession of a portion of the premises as the superintendent and servant of tbe Humboldt Mill and Mining Company, a corporation claiming title to the land by virtue of a deed executed by Ginaca & Gintz on the seventh day of January, A. n. 1875. The defendant Berry was in the possession of a portion of said premises as lessee of Martha Ginaca, wife of J. Ginaca, who claimed the same by virtue of her declaration of homestead recorded on the twenty-seventh day of July, A. D. 1875. The cause was tried before the court without a jury. The court found in favor of plaintiffs. The defendants appeal from the judgment and from an order of the court refusing a new trial. We shall endeavor, without attempting to follow counsel in each of the thirty-seven specific points set forth in appellants’ brief, to notice all the material questions presented by the record. — 521 — 1. The validity of the judgment by confession, entered April 14, 1874, was sustained by this court in The Humboldt M. & M. Co. v. Terry et al., 11 Nev. 237. It is, however, contended by appellants that that case is not conclusive of the validity of said judgment, because the judgment-roll was not then before the supreme court. In the statement in this case the judgment-roll is presented, and it is now argued that the judgment is invalid because the words “judgment entered” are not indorsed on the statement and affidavit contained in the judgment-roll. The indorsement after the title of the suit is as follows: “ Statement of judgment by confession. Filed April 14, A. d. 1874. J. H. Job, clerk. Entered in book ‘B’ of judgments, pages 29 and 30, April 14, A. d. 1874. Attest: J. H. Job, clerk.” The objection to the indorsement, like the objection to the judgment, reaches only the form, and does not touch the substance. If the opinion in 11 Nev. is correct, and of its correctness I entertain no doubt, then it follows that the objections now made are without merit, for the indorsement does show that the “ judgment by confession ” was “ entered ” April 14, A. D. 1874, in book “ B ” of judgments. The opinion of this court, in 11 Nev. is conclusive upon the subject that “a judgment should always be tested by its substance rather than its form.” In order to make the record of the judgment valid upon its face it is only necessary, as was said by the supreme court of the United States in Maxwell v. Stewart, 22 Wall. 79, for it to appear “that the court had jurisdiction of the subject-matter of the action and of the parties, and that a judgment had in fact been rendered. All else is form only.” The same reasoning applies with as much force to the judgment-roll as to the judgment. In this case the judgment-roll, as well as the judgment entered in the judgment book, does affirmatively show jurisdiction over the parties and of the subject-matter. It would, of course, be better if clerks would always conform to the usual and approved forms of entering judgments and making up judgment-rolls. The statutory provisions are not to be ignored. But there — 522 — are many mistakes, omissions and ambiguities, which the law overlooks as long, and only as long, as they do not affect the substance of the record. There are several very respectable authorities which go further than it is necessary for us to go in this case, and hold that the existence of a correct judgment-roll is not absolutely essential to the validity of a judgment; that the judgment itself is always admissible to prove that a judgment was in fact entered, and that the omission of the clerk to make a correct copy of the judgment, and to properly annex the papers belonging to the judgment-roll, would not render the subsequent proceedings void. (Williams v. McGrade, 14 Minn. 48; Lick v. Stockdale, 18 Cal. 223; Sharp v. Lumley, 34 Cal. 614; Galpin v. Page, 1 Saw. 336.) The testimony of the witness La Grave that in his opinion the word “judgment” was not in the handwriting of the clerk, was insufficient and incompetent to establish any fraud in the entry of the judgment. 2. The court did not err in admitting in evidence the deed from the townsite trustee for the purpose of showing that the government title to the land in controversy had been conveyed to Ginaca & Gintz. The law does not demand that the facts authorizing the grantees to receive the deed from the trustees shall be recited in the deed. The statute makes it the duty of the trustee to convey the property “by a good and sufficient deed of conveyance” to the person or persons entitled to receive it. (2 Comp. L. see. 3857.) The deed executed by the trustee is a bargain and sale deed in the usual form, reciting a consideration of one dollar, and is certainly sufficient to convey the title to the land. The deed was prima facie evidence that it was delivered to the persons entitled to receive it. In Sherry v. Sampson, the court say: “When the probate judge has made a deed for any portion of said land to any person it will be presumed in the absence of anything to the contrary that he has made the deed to the proper person.” (11 Kan. 615.) But even if it were necessary for the plaintiffs to show by evidence aliunde that they were entitled to the deed, we are not called upon, by the record before us, — 523 — to decide whether the evidence was sufficient to authorize the trustee to execute the deed because the statement on motion for a new trial fails to state that it contains all the evidence, and we are therefore bound to presume that all the facts necessary to sustain the findings of the court upon this point were properly proven. It is true that the judge, in his certificate, states as a “fact that said statement contains all the evidence in said cause.” But this is not sufficient. The statute only requires the judge to certify that the statement “has been allowed by him, and is correct” (1 Comp. L. 1258, 1396), and, as was intimated in Caples v. The C. P. R. Co., 6 Nev. 271, the certificate of the judge covers nothing more than is required by the statute. 3. The conclusions reached as to the admissibility of the deed from the townsite trustee, and of its sufficiency to convey the government title, renders it unnecessary to consider any of the points made by appellants with reference to the admissibility of the deed from Splivalo to Ginaca & Gintz. 4. The court did not err in admitting parol evidence to show that the land sold by the sheriff, under the execution issued upon the judgment by confession against Ginaca & Gintz, was in township thirty-six, as alleged in the complaint, instead of township thirty, as described in the sheriff’s deed. The deed from the townsite trustee to Ginaca & Gintz properly described the land as being in township thirty-six. The sheriff, in the notice of sale, certificate of sale, and in his deed, erroneously described the land as being in township thirty. The full description given in the sheriff’s deed reads as follows: “Those certain lots, pieces and parcels of land and property situate, lying and being in Humboldt county, Nevada, and bounded and particularly described as follows, to wit: Commencing at a post at the north-east corner of the south-west quarter of section 20 of township 30 N., B>. 38° E.,.Mount Diablo base and meridian, running west to center of Humboldt river, following said river to the junction of T. Lay and J. M. Barrett’s land (or the land formerly owned by them); thence running south, 47° 15' E., to a post — 524 — at the corner of George Barrett’s land (or the land formerly owned by him); thence running with a curve of the Humboldt canal, at a distance of 60 feet north of the center of said canal, to the south-east corner of lot No. 4, block 29; thence east to a post at the south-east corner of said southwest quarter of said section 20; thence running directly to the point of beginning; with that certain quartz-mill known as the ‘ Humboldt Beduction Works,’ and all buildings and improvements located on, or belonging to, said land; salid parcel of land containing ninety-nine and ninety one-hundredths acres, as appears on the map filed in the office of the recorder of Humboldt county, Nevada.” It is apparent from this description that it was the intention of the grantor to convey ninety-nine and ninety hundredths acres of land, with the quartz-mill known as the Humboldt Beduction Works. The parol evidence shows that the Humboldt Beduction Works are situate in township 36. Taking the description as given in the deed, with all its references, there can be no question as to the land actually intended to be conveyed. The description of the land would have been good if the township had not been specified. The references and the monuments specified in the deed control the other parts of the description, and, in the event of any discrepancy or mistake, are to be taken instead of the designation of the land as being sitúale in any named township. (Loomis v. Jackson, 19 John. 448; Tenny v. Beard, 5 N. H. 61; Berry v. Wright, 14 Tex. 273; Everett v. Boardman, 58 Ill. 430.) It was the duty of the court to admit the parol evidence in order to ascertain the correct description of the land (not to vary or contradict the terms of the instrument), and to reject that portion of the description which was shown to be false. (Thompson v. Jones, 4 Wis. 110; Seaman v. Hogeboom, 21 Barb. 406; Raymond v. Coffee, 5 Oregon, 134; Bybee v. Hageman, 66 Ill. 521; Reed v. Spicer, 27 Cal. 57; Piper v. True, 36 Id. 619; Haley v. Amestoy, 44 Id. 132.) 5. With reference to the homestead claim asserted by Mrs. Ginaca, and relied upon by appellant Berry, it is sufficient to state that, in our opinion, the testimony clearly — 525 — shows that the land was claimed and held by Ginaca and Gintz as copartners. If, however, there was any doubt upon this point, it would be our duty, inasmuch as the statement on motion for a new trial does not purport to contain all the evidence, to presume that there was ample testimony to establish this relation. The declarations of Ginaca were admissible to show that he and Gintz were copartners in the property claimed by Mrs. Ginaca as a homestead prior to the time of the execution of the deed by the town site trustee. Such declarations would not be conclusive that such partnership continued after the execution of said deed, but would make it incumbent upon the defendants to show that thereafter the property was not claimed or held in the same relation. The doctrine is well settled in California that a homestead cannot be carved out of land held in joint-tenancy or tenancy in common. (Seaton v. Son, 32 Cal. 483, and authorities there cited.) The judgment of the district court is affirmed.