3 Mont. 251 | Mont. | 1878
The plaintiff brings this action for partition and accounting, alleging that she is tenant in common with the defendant Davis, and the owner of an undivided one-half of a certain flouring mill and premises situate in the upper Willow creek valley, Gallatin county; that she has expended large sums of money in improving, repairing and operating the same; that defendant Gilbert, as her mortgagee, holds a lien thereon; that the same cannot be partitioned ; whereupon she. asks for a sale thereof; for an accounting between herself and Davis; and for a distribution of the proceeds of sale according to the respective rights, liens and interests of the parties. The defendant Davis admits that he is the owner of the undivided one-half of the property, but denies that the plaintiff has any interest therein,
A brief statement of the facts is necessary to present the questions raised on this appeal. It appears that prior to July 1, 1871, Davis held the title to a certain saw-mill situate near Bozeman, Gallatin county, an undivided one-half of which, he says, he held in trust for W. A. Fredericks, the owner, the plaintiff and W. II. Drew declaring that Fredericks had no interest therein. Be this as it may, on that day,- by a conveyance or bill of sale in writing, Davis sold and conveyed to the plaintiff and W. 'H. Drew the said saw-mill for the sum of $2,000, together with all the privileges and appurtenances thereto belonging, agreeing to warrant and defend the title to the property so sold, which instrument of conveyance was duly recorded in Gallatin county records.
It further appears that on the 30th day of July, 1871, Davis and W. H. Drew entéred into a contract in writing for the construction and erection of a flouring mill in the upper Willow Creek valley ; that pursuant to the terms thereof, such mill was erected, and that each of said contracting parties became the owner of an undivided one-half interest therein and the rights, privileges and premises thereto belonging. W. A. Fredericks was a millwright and worked for Drew in the construction of the mill, and subsequently, upon its completion leased Davis’
Davis attacks this conveyance by alleging that W. A. Freder-icks was the owner of the undivided interest in the saw-mill, and that the same was conveyed to the plaintiff to hinder, delay and defraud creditors, and that the plaintiff traded her interest in the saw-mill thus acquired to Drew for his interest in the flouring mill, whereby her title to the flouring mill became fraudulent and void.
On the trial the defendant Davis, for the purpose of showing that his bill of sale and conveyance of the undivided one-half of the saw-mill to the plaintiff was fraudulent and void as against creditors, offered to prove the consideration for such conveyance; that the same was paid by W. A. Fredericks, the husband of plaintiff, to whom he offered to convey, but was directed by the husband to convey to his wife, the plaintiff; the declaration of the husband that the property belonged to him, and also declarations of the wife to the same effect. This testimony was excluded and its exclusion is assigned as error.
In order to appreciate fully the nature of the evidence thus sought to be introduced, it should be further stated that Davis had previously testified that W. A. Fredericks was the real owner of the undivided one-half of the mill conveyed by him to plaintiff ; that Davis was the trustee of Fredericks, holding this title
It therefore appears that Davis, at the time of the conveyance to plaintiff, knew that she had no interest in the property conveyed, and that as to the creditors such conveyance was fraudulent and void, and with this knowledge he promised to warrant and defend her title to the property.
In view of these facts, was the testimony offered in behalf of Davis properly excluded ? If the sale was fraudulent, Davis helped to perpetrate the fraud, and with a full knowledge of all the facts. Could he under such circumstances impeach his own conveyance by which the fraudulent sale was executed ? Having promised to warrant and defend the title of plaintiff, could he attack his own conveyance to show such title fraudulent and void ?
The mere asking of these questions suggests the inevitable answer they must receive. No man can be allowed to take advantage of his own wrong. Davis with a full knowledge of all the facts promised to warrant and defend a title that he knew to be fraudulent, and he cannot now he heard to declare the fraud in order to set such title aside. He cannot impeach his own deed. He cannot falsify his own warranty. So far as he is concerned the title of the plaintiff in the saw-mill after his bill of sale, conveyance and warranty was perfect. This doctrine is supported by the case of Phillips v. Wooster, 36 N. Y. 414, wherein the court says: “ The position which the plaintiff occupies in relation to the transaction complained of as fraudulent, excludes him from alleging the fraud, or claiming any benefit against it. The conveyance against which he now seeks to derive advantage from the property was made by himself, with a full knowledge of all the facts as they existed at the time, as we are bound to presume, since he has shown nothing to the contrary. So that if the money paid was the debtor’s, as he now insists it was, and the conveyance to the wife therefore
The proposed testimony was properly excluded. In .another view of the case, the testimony was immaterial. Admitting that the conveyance of the saw-mill from Davis to the plaintiff was fraudulent, and that Davis stood in a position to take advantage of the fraud, there is nothing in the case to impeach or in any manner to invalidate the conveyance from Drew to the plaintiff of his undivided one-half interest in the flouring mill whereby she became a tenant in common therein with Davis and entitled to demand partition thereof. The plaintiff, Drew and Freder-icks, all testify that the plaintiff from her own separate funds paid to Drew $2,000 in cash for his interest in the flouring mill, and there is no attempt on the part of Davis to contradict this testimony. And so the transactions in relation to the saw-mill, however fraudulent they might have been, became wholly immaterial, because not in any way connected with the plaintiff’s acquisition of title to the flouring mill.
2. The defendant, Davis, attacks the deposition of W. H. Drew, because the official character of the justice of the peace before whom the same was taken in Arizona is authenticated by the certificate of a deputy county recorder, and not by the recorder himself. This certificate does not come within the purview and is not controlled by the act of congress in relation to-the authentication and proof of records, etc., in the different States (R. S., § 906), nor by our own statute as to affidavits taken before a judge of a court of another State or foreign country (Cod. Sts, 130, § 476), but is controlled by the statutes of Arizona, to which we must look to determine its validity. The
The act does not define the authority or point out the duties of the deputy recorder, and in such a case the deputy duly appointed and qualified may perform any act that his principal might legally perform. “ In general, has power to do every act, which his principal might do." 1 Bouv. L. D. 463. See, also, Emmal v. Webb, 36 Cal. 197; Muller v. Boggs, 25 id. 184; Harst. Pr. 267.
The certificate authenticating the official character of the justice of the peace, before whom the deposition was taken, was properly made under the laws of Arizona by a deputy recorder. The commission was issued to J. Logan, or any acting justice of the •peace of Mohave county, Territory of Arizona, and the deposition was taken by R. R. Baker, a justice of the peace of said county, at the time and place named. The officer so taking the deposition had authority under the commission to take the same, and the objection that the deposition was not taken by J. Logan was properly overruled.
The depositions of George L. Kent and Wm. H. Myers, appear to have been taken in pursuance of notices properly served.
Counsel for the defendants say that the court erred in giving to the jury the several instructions numbered 1, 2, 3, 4, 5, 6, 7, 8, and also in refusing to give instructions asked for by Davis and numbered 1, 2, 3, 4, 5, 6, but they do not deign to point out the error complained of, nor to give any reason for their appar-' ently confident assertion thereof. And we would be entirely justified in concluding that they had no reason to give and that they indulged the hope that the court would be able to discover error where they had failed to do so. We have been as unsuccessful as counsel in discovering any errors in the instructions, and all the questions that might have been raised thereon have been substantially disposed of in the first subdivision of this
DavisKobjects that the deed from Drew to plaintiff of his undivided interest in the flouring mill was not properly acknowledged. If such were the fact, the creditors of Drew or the grantees of the plaintiff might object, but Davis does not stand in á position to do so. He cannot raise the question.
If W. A. Fredericks is not his co-tenant in the mill and the owner of an undivided one-half thereof, then his defense entirely fails, and it is wholly immaterial to him, and is a matter about which he cannot inquire in the action under his answer, as to who is the owner of such undivided one-half of the mill. If Fredericks is not the co-tenant of Davis in the mill, then so far as Davis is concerned, it is a matter of no consequence in this action who is such co-tenant. As to the reception of the vei-dict, there is nothing in the transcript to show that it was not received in open court, in regular form, after the names of the jurymen had been called by the clerk.
No exception was saved as to the manner in which the verdict was received, and we are not called upon to express an opinion upon alleged errors to which no exceptions were taken. Judgment affirmed with costs.
Judgment affirmed.
