Whipple v. Geddis
25 App. D.C. 333
D.C. Cir.
1905
Check Treatment
Mr. Justice Duell

delivered the opinion of the Court:

This is an appeal taken from a judgment, in favor of the plaintiff-appellee, Madison Whipple, entered upon a verdict found by a jury upon the direction of the court.

The record is somewhat meager, and, as there were no writ*335ten pleadings, we are somewhat in the dark as to some of the events that may have been developed in the presentation of the case in the trial court.

It appears that the plaintiff originally brought suit in one of the justice courts of the District to recover the sum of $150, a balance alleged to be due him upon the sale and purchase of certain real estate. A judgment for the full amount, with interest and costs, was rendered in favor of the plaintiff, which, was thereafter assigned to Campbell. Thereafter a second trial was had in the supreme court of the District, and, under the instructions of the court, the jury found a verdict for the plaintiff-appellee for the full amount claimed, with interest and costs. A motion for a new trial was made, denied, and judgment upon the verdict ordered.

The assignment of errors other than the general one that the-court erred in directing the jury to return a verdict for the plaintiff, are these: First. In refusing to permit the appellant to explain to what encumbrances the expression “certain existing encumbrances” mentioned in the deed, referred; second, in holding, as a matter of law, that the appellant was bound by the terms of the deed to assume the encumbrances including-taxes and assessments.

In order to decide whether these assignments of error are well founded, or even warranted, we must turn to the record to learn, what transpired at the trial. The plaintiff was the only witness-called in his own behalf, and he testified that he sold the defendant certain houses for 300; that the defendant paid one half of this amount and refused to pay the balance; that there-were two trusts upon each house. Upon cross-examination he was shown the deed which showed that he had made certain incorrect statements which, however, have no sjiecial bearing on. the point in controversy. The deed was delivered at or prior to-the time of the payment of the $150, but the examination of the-title had not then been completed by the Columbia Title Company. The defendant, the only witness called in his behalf,, gave his version of the transaction and testified, without objection, that the plaintiff assured him that the taxes were paid,. *336but if anything was due he would pay. This, upon being recalled, and without objection, the plaintiff denied. The deed which was received by defendant, and by him promptly recorded, discloses that the property was sold subject to “certain ■existing encumbrances.” The defendant was asked upon his direct examination “in what sense the words ‘existing encumbrances’ was used by them [the parties] in the deed for the houses.” The court, of its own motion, refused to permit the witness to answer the question, on the ground that the understanding of the witness was incompetent, as the writing spoke for itself. The first assigned error purports to be based upon this ruling, but upon comparing it with the record it will be seen that there is a fatal variance between them. The appellant was asked to explain the sense in which the words “existing encumbrances” were used, while the error is predicated upon the ■court’s refusal to permit the witness to explain the expression “certain existing encumbrances,” quite a different expression, as admitted by appellant’s counsel. He says: “It is undoubtedly the law that a covenant against encumbrances generally, or against ‘any’ or against ‘all’ encumbrances, covers taxes, general and special, assessed against the property at the time -of conveyance.” In the case at bar it appeared, after the deed Avas delivered, that there Avere taxes and assessments unpaid and •outstanding against the property, and the appellant based his refusal to pay the balance of the purchase price upon this fact. There is no ambiguity, patent or latent, in the expression “existing encumbrances,” and the court was clearly right in refusing to permit the Avitness to explain the meaning of that term in the deed.

The record fails to disclose that the attention of the court Avas called to Avhat is contended to be a qualifying Avord, i. e., “certain,” and Ave have no right to assume anything which does not appear in the record. We must take it as presented, and decline to pass upon a question not raised beloAv. The first assignment of error is not based upon anything appearing in the record, and is therefore found not to be well taken.

As to the second alleged error Avhich is claimed to follow from *337"the ruling of the court that the appellant was bound by the terms of the deed to assume the encumbrances, including taxes .and assessments, we can only say that, as the objection to this ruling was a general one, and not specific, we must find that it was based upon the ground that “existing encumbrances” did not cover taxes and assessments. Such a contention is not "well founded. Taxes and assessments are encumbrances. There is nothing in the record to warrant a conclusion on our part, that, nonceding for the sake of argument that the word “certain,” as used in the deed, is ambiguous and open to oral explanation, the Attention of the trial court was called to that word. The objection as made was general, and did not point out the present contention of appellant. We do not feel required to, nor justified in trying to, find some ground for disturbing the ruling of the •court below. There have been two trials, and two verdicts for the appellee, and in our opinion the judgment should stand. Appellant’s ably considered brief deals with questions which are not presented by the record, and which therefore are in a certain sense moot.

We find no ground for reversing the judgment of the court below, and it is therefore affirmed, with costs. Affirmed.