21 N.M. 115 | N.M. | 1915
OPINION OF THE COURT.
(after stating the facts as above.)— While appellant assigns as error the fact that the trial court refused to consider the master’s report as an adjudication of Boney’s rights, he does not mention or argue the point in his brief, and therefore, in view of the uniform practice of this court, he will be considered as having abandoned the alleged error. The first proposition which he discusses is the alleged error in excluding Exhibit No. 4, offered by him for the purpose of establishing his title to the interest in the Mora grant, which he claims. . That exhibit was a certified copy of a purported paper recorded in the deed records of Mora county July 3, 1877, and reads as follows:
“Know by tbe present: That I; Pedro Valdez, of tbe county of San Miguel and territory of New Mexico, on tbe 3d day of tbe month of July, A. D. 1877, transfer, convey and cede in favor of Pablo Valdez, all tbe right, title, dominion, action and portion which has been transferred to me in writing which precedes by Santiago Boney and Feliciana Jiminez, his wife, in tbe same manner and in the same form that tbe real property contained in tbe said writing is described, in order that the said Pablo Valdez may enjoy it for bis heirs and assigns, forever.
“In witness whereof, I have placed my name and seal on this transfer on tbe day and month aforesaid.
Pedro Valdez [L. S.]
“Recorded on tbe 3d day of July, A. D. 1877.
“Pedro Valdez, Clerk.”
To the introduction of this exhibit the appellee objected because:
“It is unacknowledged, and therefore not entitled to record, and therefore that the record of it is not admissible. (2) That no proof of its execution has been offered to the court, and that, not being acknowledged, it does not prove itself. * * * ”
In the trial court, and in this court, appellant contends that such record was admissible on two grounds : First, appellee having parted with his interest in the land, by the conveyance marked “Exhibit No. 3,” he cannot' be heard to. object to the introduction of Exhibit No. 4 on any ground or for any reason; and, second, that it was admissible as an ancient record copy. While the second ground stated is not in exact accord with the statement made by appellant in the trial court, we shall assume that the record copjr was offered as an ancient record copy, because from the argument there advanced we infer that such was the understanding of court and counsel.
The failure, upon the part of some of the courts and text-writers to distinguish between the admissibility and the weight of such evidence has led to much of the confusion and uncertainty which exists in this regard. Without attempting to quote from the text-writers or authorities, we cite the following, where the question will be found considered and the divergent views presented: Wigmore on Evidence, vol. 3, § 2143; Elliott on Evidence, vol. 2, § 1334; Ency. of Evidence, vol. 1, p. 881; Van Gunden v. Virginia Coal & Iron Co., 52 Fed. 838, 3 C. C. A. 294; Shifflet v. Morelle, 68 Tex. 382, 4 S. W. 843; Belcher v. Fox, 60 Tex. 527; Brown v. Simpson’s Heirs, 67 Tex. 225, 2 S. W. 644; Trammell v. Thurmond, 17 Ark. 203; Gibson v. Poor, 21 N. H. (1 Foster) 440, 53 Am. Dec. 216; Brown v. Edson, 23 Vt. 435; Appleton v. Edson, 8 Vt. 239; Stokes v. Dawes, 4 Mason, 268, Fed. Cas. No. 13,477; Holmes v. Coryell, 58 Tex. 680; Boykin & Lang v. Wright, 11 La. Ann. 531; Jones v. Morgan, 13 Ga. 515; McCleery v. Lewis, 104 Me. 33, 70 Atl. 540, 19 L. R. A. (N. S.) 438.
Appellant cites the cases of Baeder v. Jennings (C. C.) 40 Fed. 199, McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098, and Freeman v. Wm. M. Rice Institute (Tex. Civ. App.) 128 S. W. 629. In the first two cases, however, the question of the admissibility of the copies of the records in evidence, divorced from the question of possession, was not involved, for in both cases possession under the supposed deeds was shown. In the Freeman case, the clerk who copied the deed into the. record testified as a witness in the ease.
Appellee cites the case of Heintz v. Thayer, 92 Tex. 658, 50 S. W. 929, 51 S. W. 640, as establishing the inadmissibility of the. proffered Copy in this case. That case, however, does not discuss the ancient record copy theory, but turns upon the statutes authorizing the recording of conveyances.
In the case of Schultz v. Tonty Lumber Co., 36 Tex. Civ. App. 448, 82 S. W. 353, the court .said, citing the Heintz Case:
“Neither the purported transfer of the patent nor the conveyance from Lang to Sands, before set out, is authenticated for record in accordance with the statutes in force at the time they purport to have been executed, and therefore the transcribing of these instruments upon the record book did not make them legal records sufficient in themselves' to prove the execution of the original instruments of which they purport to be copies. Pasch. Dig., arts. 5007, 5008; McDaniel v. Needham, 61 Tex. 271; Heintz v. Thayer, 92 Tex. 658 [50 S. W. 929, 51 S. W. 640]; Huff v. Webb, 64 Tex. 284. It is well settled, however, that the execution of. a lost deed may be proved by circumstances. Bounds v. Little, 75 Tex. 316 [12 S. W. 1109]; Crain v. Huntington, 81 Tex. 614 [17 S. W. 243]; McCarty v. Johnson, 20 Tex. Civ. App. 184, 49 S. W. 1098. In the case last cited this court held, in a well-considered opinion by Justice Williams, that the record of a deed improperly authenticated for registration was admissible in evidence as a circumstance tending to prove the execution of a deed claimed to have been lost, and of which the record purported to be a copy. Under this decision the record in question was properly admitted in evidence, but we do not think this record, considered in connection with the other evidence in the case, is sufficient to show the execution of the purported conveyance of the land to Sands. The only circumstances shown by the evidence, in addition to the illegal record, which tend to support the conclusion that such conveyance was made are the payment of taxes by Sands for two years, and the failure of Lang to exercise any act of ownership over the land, or assert any claim thereto.”
In the case of Jones v. Neal, 44 Tex. Civ. App. 412, 98 S. W. 417, the court said:
“The propriety of the introduction of the record book of deeds as a-circumstance to show the execution and contents, of the lost deeds is. sustained by ample authority” (citing a number of cases, including, the Heintz Case).
In the case of Townsend v. Estate of Downer, 32 Vt. 183, will be found an exhaustive discussion-of. the. rule relative to the admissibility of an ancient recorded copy, although the court there did not discuss the .admissibility’ of' spch a record divorced from the' question .of possession.
It is our view that the court should have admitted the record "oopy;; No question was raised in the trial court as to the proffer of a certified copy, rather than the 'original record, but appellee assumed that if the record itself was admissible in evidence the certified copy would be, or he did not elect to raise the question because of the fact that the record was available as evidence and could have been produced.- What we have • heretofore said is based on the assumption that the record itself was offered in evidence, upon proper proof to establish it as such.
Appellant attacks this finding on the ground, that under section 2175, Code Í915, appellee’s grantee being dead, he was not entitled to recover on his own..uncorroborated evidence, and that his evidence was not corroborated. This statute reads as follows: ‘ . -" *
,. “In a suit' by or against the heirs, executors, administrators or assigns of a deceased person, an' Opposite or. interested party to the suit shall not obtain a verdict, judgment or decision therein, on his own evidence, in respect of any matter occurring before the-death of the deceased ■ person, unless such evidence is corroborated by some other material evidence.”
1 .’Appellant contends that this point was -hot'raised in the trial co.urt,’but, passing this question, ,we .will, proceed to a consideration of .the point on its-merits-.. .- - -
Boney, the appellee, testified that he. did not sign the purported deed, and never authorized any other person to sign his name^thereto. In brief, he testified to- a state of facts which showed that his name had been forged to the instrument. In addition to being signed by Boney, the deed was also signed by Boney’s wife, although her signature thereto was not required under the then existing law of the territory. It was also witnessed by the purported signature of two witnesses, although the law did not so require. Mrs. Boney testified as a witness in the case, and stated that she did not sign the purported deed, or authorize any person to affix her signature thereto. One of the subscribing witnesses was produced, and testified as a witness that he had no recollection of ever having signed the deed as a witness; that to the best of his recollection he had not done so, but said that, owing to the lapse of time, he could not swear positively that he had not so signed. Appellee contends that, assuming the testimony of Boney required corroboration, the above testimony fulfilled the requirement of the law and warranted the finding. Appellant argues that as neither Mrs. Boney nor the witnesses were required to sign the deed, in order to render it valid, their evidence to the effect that their signatures were forged to the instrument affords no corroboration of Boney’s testimony that his signature was also forged. In considering the question presented, we must assume that the trial court was justified in giving full credit to Boney’s testimony, for that court heard him testify, had full opportunity to observe his manner and demeanor on the stand, and was better able to judge of the truth or falsity of his testimony than could this court from the record. This being true, the only question that remains for this court to pass upon is whether the evidence of Mrs. Boney and th» witness Lopez afford such corroboration as will satisfy the statute quoted supra.
. So far as a rather close search lias indicated, the statute involved here is unique in the United States, and, instead of being wholly exclusionary of the testimony of an opposite party or interested witness, as is the case in nearly all of the states, it is quantitative in its nature, and provides that no decision shall be rendered in favor of an interested witness unless his testimony shall be corroborated by “some other material evidence.” While we have found no statute in the United States like the one under discussion, an Ontario statute, quoted by Wigmore, Evidence, § 2065, note, is almost identical. It reads that in an action—
“by or against the heirs, executors, administrators, or assigns oí a deceased person, an opposite or interested party to the action shall not obtain a verdict, judgment, or decision therein, on his own evidence, in respect oí any matter occurring before the death of the deceased person, unless such evidence is corroborated by some other material evidence.”
The Ontario laws not being accessible, we cannot give the' date of the original enactment of this particular statute, but we believe, for reasons which will appear in connection with a discussion of some of the Canadian cases, and particularly with reference to the date of the decision in each of such cases, that it has been statute law in Ontario since September,- 1878, at the latest.
The case of Radford v. McDonald, 18 Ont. App. 167 (1891), was a case brought by an architect to recover from the'executrix of a deceased person the sum of $120, as commission for the preparation of plans and estimates for a dwelling house to cost $12,000, under a contract made with the deceased in his lifetime, as the plaintiff alleged. The making of the contract was testified to by the plaintiff, and the only question in the case was “whether his evidence was sufficiently corroborated to justify a recovery.” The corroborative evidence consisted of two documents, alniost wholly in the handwriting of the deceased. One was a list of rooms, with the heading, “Limit, - all extras, $12,000.00.” The other was a sketch, showing a certain lot with the words, “G. McDonald’s lot,” written on it. It was proved that the deceased did own such'a lot. The court held that the evidence of the plaintiff was—
sufficiently corroborated to support a verdict from a jury that the plaintiff’s proof of Ins claim was true.”
The interesting part of this case consists of statements and quotations by the court as to the meaning of “corroborative evidence.” The following are examples:
“It has been well put, by more than one of our own Judges, that evidence that strengthened the probability of the plaintiff’s evidence being true was corroborative evidence.
“Armour, C. J., in Parker v. Parker, 32 C. P. 113, reviews the authorities. He quotes, from Sugden v. Lord St. Leonards, 1 P. D. 154, Sir James Hannen’s explanation of what is corroboration: ‘It is sufficient if I-find that independent support is given to Miss Sugden’s statements in so many instances that it raises in my mind the conviction that she is to be depended on even in those matters in which I do not find corroboration elsewhere.’
“In Cole v. Manning, 2 Q. B. D. 611, the learned judges considered the evidence adduced in a bastardy case to be sufficient, where, in my judgment, the corroboration was far weaker than in the case before us.
“The statute seems undistinguishable from ours in its purport. Lord Field (then in the Queen’s Bench) says: ‘Suppqse the appellant and the respondent had been seen walking together in a lonely spot, such as might be convenient for the commission of immoral acts; certainly that would be a material corroboration of the appellant’s evidence as to the paternity of her illegitimate child.’ ”
The case of McDonald v. McKinnon, 26 Grant, 12, is a chancery case decided in September, 1878, in which the court says:
“With regard to corroborative evidence under the statute, I do not agree that the evidence of a party claiming must be corroborated in every particular. If it were so, it would be requiring the party to establish his whole case by independent evidence.’’
In Tucker v. McMahon et al., 11 Ont. 718 (1886), the issue was whether the plaintiff, after the death of the decedent’s wife, lived with him as a servant, or continued to live with him as a member of his family. Plaintiff testified that she lived with the deceased as a servant, and that he promised to pay her wages. Her son.testified that the deceased stated to him, “She shall be handsomely paid.” Her son-in-law testified that the deceased stated to him that trho would pay her well for her services.” The court found that the corroboration was not sufficient, and, in reaching a decision, said:
“In order to satisfy the staute, the corroborative evidence must he such as would tend to ■ prove what she testified to as being the ground of her claim. * * *
“They [the statements above set out] are, in my opinion, quite as consistent with the view that she continued to live with the testator after his wife’s death, in precisely the same relation that she lived with him before that event, that is, as a member of his family, and not as a hired servant, and quite as consistent with the view that the relation then changed and became that of a hired servant, instead of a member of the family merely. * * *
“The statements made by the testator were undoubtedly indicative of an intention on his part to pay the plaintiff for services, but they afforded no evidence of the motive of that intention, and were quite as. consistent with an intention moved by moral obligation as with an intention moved by legal obligation.”
In view of the state of the testimony, admitting that the signature of Boney’s wife and the signature of the attesting witnesses were not essential to .the validity of the instrument, is the testimony of Boney corroborated by “some other material evidence?”
Let us reconstruct the case on another theory. Suppose that the appellant had offered the instrument in question, and that Boney had denied that he signed it; tliat then, on rebuttal, the appellant had called two witnesses, Boney’s wife and Manuel Lopez; the testimony of the former being that she signed her name to the original of the instrument, and the testimony of the latter being that he signed his name to it. Would the testimony of Boney’s wife and of Lopez tend to prove that Boney had signed the instrument, notwithstanding his denial? Would their testimony be persuasive on the mind of the court? If persuasive at all, would it be legitimately so? We believe that it would; and we think that the court would have admitted it over objection, and would have been correct in so doing. Now take the present case. Boney says he did not sign the instrument. His wife and Lopez testify that neither »of them signed it. Appellant complains because neither of these two witnesses testified that Boney did not sign it, or that Boney’s signature was not on the instrument. Such omission on the part of the witnesses is, we believe, the strongest kind of an indication of the truth of their statements. If they had said they did not sign, and that Santiago did not sign, in the latter statement they would have been testifying as to something about which they could, by no possibility, know anything. It was impossible, in the very nature of the case, that these two witnesses,' denying, as they did, that they signed.the instrument, could know anything further about the matter.
The real question here is: Is the instrument in question a genuine instrument or is it a forgery? It is quite true that the original of this exhibit, if any existed, did not require the signature of Boney’s wife, and that no witnesses were necessary. However, the fact is that signatures purporting to be those of the persons named on the exhibit are claimed to have been on the original. If they were genuine signatures, the fact that they were there is very strong evidence against Boney; and they would constitute a very sharp blade with which the appellant could vigorously and successfully strike at Boney’s testimony. Our view is that this blade has two edges, the one as keen and sharp as the other.
Moore on Facts, § 1145, says:
“Corroborative evidence is that which strengthens and renders more probable the testimony which it is adduced to support.”
At section 1147, the same author says:
"Corroborating evidence may come as effectively from facts and circumstances as from the mouth of a witness giving direct testimony of the fact sought to be substantiated.”
Here the fact that a copy of a deed is offered in evidence, which has upon it evidence of the forgery of the names of persons, not required to sign the same to make it valid and effectual, it is true, but which evidently the party making and effecting the instrument deemed essential, is a strong circumstance tending to show that the instrument was spurious, and to discredit the fact that Boney had signed the deed. Here we might mention the fad. incidentally, that the acknowledgment to the deed was taken by Pablo Valdez, who was the probate clerk and ex-officio recorder of Mora county, and that in a short time after the deed was supposed to have been executed Pedro Valdez is shown by the record to have conveyed to Pablo' Valdez the same interest. Both the original deeds are lost or destined.
Moore on Facts, § 1147, says':
“Every case must depend upon its .own special circumstances in determining whether there is corroboration or not.”
Here we have a state of facts which places upon this purported deed the indelible evidence of fraud and forgery, and it is but a step in the process of reasoning to. conclude that, if the wife’s name is a forgery and the witness’ name was forged, Boney told the truth when he said that his name was forged to the deed.
This statute has been before the territorial and state Supreme Court several times, and has been construed. The la'tést case is that of National Rubber Supply Co. v. Oleson & Exter, 351 Pac. 694, where the prior cases are collected. In that case we said:
“In order to satisfy the statute, the corroborating evidence must be such as would, standing alone and unsupported by the evidence of the claimant, tend to prove the essential allegation or issue raised by the pleadings.”
In this case we believe that the proven forgery of the names of the wife and witness, standing alone, tends to discredit the whole deel, and furnish independent support of the fact that Boney did not sign the deed. This being-true, Boney’s testimony was sufficiently corroborated, under the statute, to warrant the judgment.
This being true, the finding is supported by substantial evidence, and warranted the judgment, and it will not be necessary to consider the remaining question raised and discussed by counsel. The judgment of the lower court-will be affirmed: and it is so ordered.
