Webster v. Calden

55 Me. 165 | Me. | 1867

Appleton, C. J.

This is a writ of entry. The parties derive their title from William M. Mann. The demandant derives his title from a deed given by the guardian of the children of said Mann. The tenant claims under a deed from said Mann to Obadiah Mann, dated July 28,1853, and various mesne conveyances. The delivery of the deed of July 28, 1853, was denied, but the jury by their verdict affirmed the fact of such delivery.

Numerous exceptions are taken to the ruling of the presiding Judge, which will be considered in their order.

1. The plaintiff ¡proposed to prove statements made by James E. Bachelder, before and at the time of the conveyance by Obadiah Mann to him, the defendant not being present, in relation to the interest of said Obadiah and Amos-Mann in the premises.

What the statements were, whether material or immaterial, whether favorable to the demandant or the tenant, does not appear. Now a bill of exceptions will not be sustained, unless it states enough to show that the Judge ruled erroneously and to the prejudice of the party excepting. Fuller v. Ruby, 10 Gray, 285; Burghart v. Van Deusen, 4 Allen, 374.

2. The withdrawal of the deed, Neil to Cushing, of the Wyman lot, is not shown to have affected the rights of the demandant injuriously.

3. The tenant read certain deeds with which he proposed to connect his own title, but failed in his attempt. Parties, in deducing their title, ordinarily suit their own convenience in the order and arrangement of proof. The deeds offered were immaterial, if the tenant failed to show that he derived rights under them. After they were offered, the demandant did not ask their rejection, — nor request any rulings upon their effect. Before they were received, the Judge could not know but the tenant would connect his title therewith.

4. It is objected that the counsel for the tenant commented on certain proofs offered and rejected at the instance of the demandant. The objectionable commenting was in the argument of the counsel to the Court, in which he endeavored to procure their admission. It would be a novel procedure because counsel, in and by their argument, failed to obtain a desired ruling, to set aside a verdict at the instance of the party winning the point in debate.

5. The tenants offered the answer of Joshua Gerry to the tenth interrogatory to a deposition taken in an equity suit, Webster v. Mann & al., to contradict .his statement made in a deposition in the present suit. The demandant then offered the balance of said deposition, which ivas excluded, except such parts as related to the subject matter referred to in the answer to said tenth interrogatory, or such portions as might qualify that answer. This was undoubtedly correct. Lynde v. McGregor, 13 Allen, 172.

The parties have referred us to this deposition. Upon a careful examination, and assuming, what is not denied, that all statements having any bearing upon the tenth interrogatory were received, we find nothing remaining in the deposition, the admission of which would have been of service to the demandant or the rejection of which .could have beeu to his disservice. The rejection of irrelevant or immaterial testimony affords no good ground of complaint.

6. The plaintiff offered to prove that he used all the means in his power, to obtain the original deed of July 28, 1853, in dispute, but without success. This evidence was. excluded. This was not to excuse the non-production of a deed which he was bound to offer,' — for the deed wasmot, and never had been, in his hands, and it was adverse to his title. It was not to authorize the reception of secondary evidence, for the copy of the deed was in the case. It was simply an offer to prove that he did all in his power to bring about a favorable result, which, from his able argument before us, cannot be doubted. Of this the jury needed no proof.

7. It is not perceived that the demandant was injured by admitting evidence that Amos A. Mann paid the mortgage, A. A. Mann to Win. M. Mann, dated Dec. 13, 1850. As the jury have found a delivery of the deed of July 28, 1853, the admission of the evidence was immaterial.

8. The report of testimony on a former trial, though signed by the presiding’Judge, is not admissible to show what a witness testified on such trial, for the purpose of contradicting him.

9. The office copy of the deed, Wm. M. Mann to Obadiah Mann, dated July 28, 1853, was properly received under the provision of the statute of 1862, c. 112. This was held prima facie to establish the tenants’ title. Blethen v. Dwinel, 34 Maine, 133. An office copy being prima facie evidence, there is no necessity of calling the attesting witness. Eaton v. Campbell, 7 Pick., 12. It raises a presumption that the grantor had sufficient seizin to enable him to convey, and operates to vest the legal seizin in the grantee. Ward v. Fuller, 15 Pick., 185. When the original is not in the custody of, or power of the party having occasion to use it, the certified copy is prima facie evidence of the original and its execution, subject to be controlled by rebutting evidence. Cone v. Emery, 2 Gray, 80.

10. There being no evidence that the deposition of Kerswell had ever been filed, the Court declined to order its production. If so, it was never in the custody of the Court. The presiding Judge could not properly have ordered the counsel for the tenants to produce it. Rule 25, 37 Maine, 576.

No sufficient reason is shown for setting aside the verdict as against evidence. Motion and exceptions overruled.

Cutting, Kent, Dickerson, Barrows and Danforth, JJ., concurred.