38 Cal. 278 | Cal. | 1869
The appeal from the judgment in this case having heretofore been dismissed, we can now consider only the appeal from the order denying defendants’ (Reay and Ellis) motion for a new trial, and, in reviewing this order, we cannot review any finding of fact by the Court below, under the first general assignment of error, for the reason that appellants, in their statement of motion for new trial, have failed to specify the particulars in which the evidence is alleged to be insufficient to justify the findings. (Practice Act, Section 195; Hutton v. Reed, 25 Cal. 478; Carleton v. Townsend, 28 Id. 220; Vilhac v. Biven, 28 Id. 409.) The findings of the Court, therefore, upon the questions of fraud and conspiracy, as affecting the validity of the deed of Treadway to Dellinger, and upon the fact of redemption by Dellinger, as successor in interest of Treadway, of the three fifty-vara lots from the
We do not deem it necessary to express an opinion upon the point urged by appellant, that the allegations of the complaint are insufficient to constitute a cause of action as to three of the fifty-vara lots described therein, as Ave regard other points decisive of this appeal.
These points are : First—-That the Court erred in admitting, against the objections of defendants, evidence of the declarations and admissions of defendant, TreadAvay, made subsequent to his deed to Dellinger, and while he, Dellinger, was in possession under the deed of the 24th of October, 1861, to impeach the title transferred by such deed; and having so admitted and acted upon such evidence in making up its findings and decree based thereon, defendants, upon proper application therefor, were entitled to a new trial; and it was not competent for the Court, on the hearing of defendants’ motion for a new trial, and while its former findings were permitted to stand as the findings upon the whole evidence, to confess error in the admission of the objected evidence, and determine that defendants were not prejudiced thereby, and deny the motion on the ground that there remained sufficient legal evidence to sustain the findings and judgment. Second—-That the Court erred in permitting plaintiff to read in evidence, against objections of defendants, selected parts of a verified complaint of defendant, Dellinger, in a former suit by him against defendant, Beay, and selected portions of said Beay’s verified answer thereto, without reading the whole of such complaint and ansAver, as demanded by defendants; and in refusing to allow defendants to read in evidence such portions of said complaint and answer as plaintiffs had failed and refused to read.
Each of the latter points we regard as well taken. The real party in interest in the case, as against the claims of plaintiff, is defendant, Beay; hence the various declarations and admissions of Treadway, made after his deed to Del-linger, Beay’s immediate grantor, and while Dellinger was
We regard it as well settled, that the declarations of a grantor, made subsequent to his deed, in the absence of his grantee, and while such grantee is in the exclusive possession under such deed, cannot be given in evidence to impeach or impair the validity of the title thus transferred. (Osgood v. Manhattan Co. 3 Cow. 612; Phoenix Bank v. Day, 5 John. 413; Arnold v. Bell, 1 Haywood, 396-7; Fund v. Selser, 4 How. Miss. 520; Long v. Dollarhide, 24 Cal. 218; Caboon v. Marshall, 25 Id. 202.)
Alter such incompetent evidence had been at the trial admitted, and acted upon by the Court in making up its findings and judgment, it was not competent for the Judge, on motion for a new trial, to undertake to determine, after' admitting error in the admission of this evidence, that it was cumulative only, and that there was sufficient evidence, independent of it, to justify the findings, and, upon that ground, deny a new trial. From the admission of improper evidence
Plaintiff having read in evidence such portions of the complaint of the defendant, Dellinger, and such portions of the answer thereto of defendant, Reay, as suited his purpose, as admissions of these defendants, they were entitled, on demand, to a reading of the remaining portions thereof immediately and before the intervention of other evidence, so that the entire document could be considered and construed together as a whole, though every portion of. the documents may not be entitled to the same weight as evidence. (1 Phil. Ev. p. 406 ; note 118, pp. 417, 418; 1 Green1. Ev. Sec. 201.)
The order denying to defendants, Reay and Ellis, a new trial, must be reversed, and the cause remanded for further proceedings.
Sawyer, C. J., delivered the following opinion, in which Crockett, J., concurred:
The appeal from the judgment ivas dismissed, and the appeal from the order denying a new trial is the only one now before us. This appeal only brings up questions affecting the verdict or finding on the issues of fact. The object of the motion for new trial is to get rid of the verdict or finding. The statement only presents the action of the Court during the progress of the trial of the issues joined, and affecting the verdict or finding on the issues; it in no way presents any question as to the sufficiency of the complaint to constitute a cause of action. Such questions can only be raised on an appeal from the judgment. The question as to the total insufficiency of the complaint may, it is true, be taken at any stage of the case—that is to say, in any stage of
The Court erred in admitting the declarations of Tread-way, made after he had conveyed to Dellinger, for the purpose of showing that the conveyance was fraudulent, and defeating the title. (Osgood v. Manhattan Co. 3 Cow. 623; Phoenix Bank v. Dey, 5 John. 413; Long v. Bollarhide, 24 Cal. 227; Caboon v. Marshall, 25 Cal. 202.) So also, after the plaintiff had read in evidence, as admissions of defendants, Dellinger and Eeay, such portions of their complaint and answer in another suit as suited his purpose, the said defendants were entitled to read the remaining portions of those pleadings, qualifying the portions read, so that the whole might be considered together, and the Court erred in excluding the latter. For this error, the order denying a new trial must be reversed.
The Court, in denying a new trial, admitted its error in receiving the declarations of Treadway made subsequent to the conveyance, but said that the error was of no conse