Cooper v. Granberry

Eisher, J., delivered the opinion of the court. The plaintiff below, brought this action in the Circuit Court of Hinds county, to recover a tract of land in the possession of the defendant. The jury having found a verdict for the plaintiff, the defendant moved the court for a new trial; and upon the overruling of the motion by the court, he took his bill of exceptions, embodying the evidence, and thereupon prayed an appeal to this court. The errors assigned will be noticed in the order in which they have been argued by the appellant’s counsel. It is first said that the court erred in permitting the plaintiff to amend his complaint. Aside from legislation on this subject, it has long been the settled practice of the courts, to allow under proper restrictions, such amendments of the pleadings of the respective parties, as were necessary to secure a trial upon the true merits of the controversy. The complainant, in describing the land in controversy, located it as part of the northwest quarter of a certain section, when it was part [121] of the northeast quarter, and the object of the amendment was to correct this mistake, by striking out the word “west,” and inserting “ east.” The statute under which the complaint was filed, in the clearest manner authorized the amendment. The object of the suit was to recover a particular tract of land, and it would have been simply useless litigation, after the errpr was confessed, if the amendment had not been permitted. The object of the amendment was to bring before the court the true subject of litigation, and not to go through the forms of a trial in regard to a subject, about which there was no controversy between the parties. We are therefore of opinion, that the court committed no error on this point. It is next assigned as error that the court below erred in overruling the defendant’s motion for a new trial; and, under this general assignment, various questions come up for consideration. First, that the court erred in admitting the deposition in fart of Geo. W. Cooper to be read to the jury, on the ground, that he was from interest incompetent as a witness. It appears that the plaintifl purchased the land from this witness, and took from him a deed containing covenants of warranty as to the title, but it appears by the deposition itself that the witness was released from his covenants before testifying. It is, however, said that it does not appear that the release had ever been delivered to the witness. On this subject, it will be sufficient to remark, that the release itself appears in the deposition, and this, in the absence of a showing to the contrary, would be held sufficient proof of its due execution. The important question in such case is, whether the witness, at the time of testifying, was fully impressed with the belief, that he was in no manner liable upon his covenants. The main object sought by making him competent as a witness was to make him credible as such, so that his testimony might receive full weight from the jury. It appeared from the deposition that the defendant was at one time in possession of the land as the tenant of G. W. Cooper, and the object of this proof was to meet the defence set up under the Statute of Limitations. The proof was certainly competent, as its tendency was to negative the allegation of an adverse possession, and to admit the title of the landlord. [122] Again, it is said that the court erred in admitting certain evidence to be given, in regard to the redemption of the land, from the purchaser at a sheriff’s sale. It appears that the land was sold by the sheriff as the property of Gr. W. Cooper, and purchased by one Brown ; that Cooper gave the defendant a power of attorney, and placed under his control certain funds for the redemption of the land. The plaintiff made an affidavit that the power of attorney, the written evidence of redemption, and the sheriff’s deed, were in the possession of the defendant, and notice was given him to produce them at the trial, otherwise secondary evidence would be offered. The defendant failing to produce said papers, the court permitted secondary evidence to be introduced to prove the substance of the transactions. And it was objected on the part of the defendant, that as such evidence related to a title to land, it could not be admitted. It may be admitted that the contract to be binding should have been in writing, and indeed, in this instance, under the seal of the party conveying or reconveying the land, but the mode of making the contract is one thing and the mode of proving it another. The general rule certainly is, that the writing evidencing the contract must be produced, for the reason, that it is the best evidence of which the subject admits, and that it is the evidence which the parties have made for themselves; but this rule, like other rules of evidence, must yield to cii’cumstances, and must be applied, if possible, for advancing and not defeating the ends of justice. A party will not be permitted to take advantage of his own wrong, by insisting that his adversary shall introduce a particular kind of evidence, when such party wrongfully withholds it, or renders its production impossible. The plaintiff resorted to secondary evidence, not from choice, but from a necessity caused by the defendant. It was equally the right of both parties that the best evidence of which the case admitted should be introduced, but, while this is true, it at the same time does not lie in the mouth of the party who withholds such evidence to insist on its production. We are therefore of opinion, that the court committed no error on this point. It only remains to notice briefly the evidence introduced in regard to the redemption of the land, on the part of the plaintiff. One witness proves, that the defendant stated that he had redeemed the [123] land, and that he did not intend to produce or permit the plaintiff to have the deed on the trial. This evidence was fairly submitted to the jury; and is certainly sufficient, in connection with the testimony in regard to other points in the case, to sustain their verdict. It is again said that the return on the execution under which G. W. Cooper purchased the land, when it was sold as the property of the defendant, shows that one Walker bid off the land. The return does not transfer the title. It is at most only evidence that Walker was entitled to demand a deed from the sheriff, and he could, if disposed to, assert his right, force the sheriff (or Cooper, holding the deed from the sheriff), to convey to him, Walker. But in the absence of a showing that his bid was consummated by a deed, it will be presumed, after this lapse of time, that he transferred his bid, or did some act renouncing it. We will notice another point, which was omitted at its proper place. The deposition of Cooper was taken before the amendment of the complaint was made; and it is therefore said, that it relates to a subject not then in litigation. There is no mistake as to the case in which it was taken, and it embraced the land about which the trial was had. This is sufficient, as it is not pretended that the defendant was taken by surprise. Judgment affirmed.