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aries,-it beromes evident that the boundaries doubt, that under his 20 years' possession of which he undertakes to set up in his defense this "drainage" or "valley," or what the witare purely imaginary, and have been pre nesses term his "range," he could hold 20,pared wholly to meet the exigencies of this 000 acres, instead of the 1,000 covered by his litigation, for it must not be overlooked that deed, he determined to repudiate the deed, in his examination in chief, wherein he under and hold the larger tract under title derived takes to set out the circumstances under by naked possession which he took possession, he says not a word There is another singular feature connectabout any deed from Maxwell, but claims ed with this defense. The defendant claims to have purchased the land from Maulding to have gone into possession in 1868, under and Curtis. He does not bring Maxwell on contract with Curtis and Maulding, who the scene at all, except to recognize his claim to own a "block" lying on the river. boundaries, and that was done at a distance Now, at that time the title was not only of four miles from the land; and, when not in Maulding and Curtis, but it was not asked what boundaries were recognized by in Maxwell, for it was not until two years Maxwell, he replied, "The boundaries were after that Maxwell bought the last outwhat you read in that description there," standing interest in the grant, and it was meaning defendant's plea. The attitude of not until May 19, 1879, 11 years after the the defendant is singularly contradictory, in defendant had gone into possession, that a this: In the first place, as I have shown, he patent from the government, in favor of attempts to ignore altogether any paper title Beaubien and Miranda, issued. Now, grantfrom Maxwell, and relies solely on a naked ing that Maxwell could anticipate his title possession of more than 10 years,-a posses- so far as to convey by deed an interest not sion acquired under a contract with Curtis yet acquired from the government, it will and Maulding; but when confronted with a not be pretended that a naked possession deed given him by Maxwell, which deed, it existing at the date of his patent can cre was shown, he had accepted as a muniment ate title as against the patentee. At the of his title, he attempts to show that under date, therefore, of the issuance of the patent, the vague description contained in this deed the defendant was not, nor could he be, inhe could hold the entire tract covered by his vested with an adverse holding beyond the plea. But there are two answers to this, one express terms of his deed from Maxwell. of which is persuasive, and the other conclu- In order, therefore, to create an estate that sive. They are these: In the first place, the will defeat the title of the patentee, he must fact that he not only did not rely on his show that for 10 years prior to the institudeed, but protested against its admission, tion of this suit he was "holding or claiming affords a strong presumption that he did not by virtue of a deed or deeds of conveyance, regard it as covering the amount of land he devise, grant, or other assurance purporting claimed. If it did include the same land cov- to convey an estate in fee simple." Comp. ered by his plea, it would conclude this whole Laws 1884, § 1880. The defendant insists, controversy. The plaintiff admits that he is however, that under his deed he can set up entitled to the land covered by this deed. an adverse title to a greater quantity of But, in the second place, the deed negatives land than is embraced within its boundary, this idea. It purports to convey all the land if he can show that he was in possession now suitable for farming or cultivating pur- of said amount under a mistake as to his poses in the valley or drainage of the Ver- boundaries; citing Tyler. Ej. p. 905, as aumejo river, county of Mora, territory of New thority for this proposition. He cannot avail Mexico, "within the following boundaries." himself of this defense, however, for the The same theory of construction that would, reason that neither in his pleadings nor in under this description, include the entire val- his testimony does he rely on the deed, ley or drainage of the river, would include but, on the contrary, expressly repudiates the entire county of Mora, and the territory it. If he had set up the deed as matter of of New Mexico. The land conveyed is not defense, and had introduced proof tending the “valley” or the "drainage,” but certain to show that by reason of the ambiguity of land within a given boundary; the tract thus its recitals he had a right to suppose that bounded lying in the valley or drainage of it conveyed the land in controversy, and that the river, and in the county and territory issue had been properly submitted to the named. This deed, he admits, he received jury, I am of the opinion that a verdict from Maxwell shortly after he went into pos- in his favor on such an issue would have session. He did not at that or any subse- concluded the whole controversy. But this quent time prior to the institution of this suit deed, which was admitted over the objection repudiate this deed. On the contrary, he als of the defendant, was submitted to the jury lows his grantor to suppose that he was hold- under the tenth instruction asked for by the ing under this deed, and when his grantor's defendant, and in terms that were well calvendee, the plaintiff, called on him to inquire culated to mislead the jury, for they were as to his boundaries, he exhibited this deed, told, at request of defendant, that the de and continuously claimed to hold the entire fendant did not rely exclusively on the deed. tract covered by his plea until the institution And this whole defense, which has been of this suit, when, on being advised, no conducted with singular ability, is an in. genious application of the doctrine, "heads, as the drainage would give him," is not supI win; tails, you lose," and the jury were ported by the testimony, for the only conauthorized to recognize the deed if they could versation he ever had with Maxwell as to his make it support the defendant's contention, boundaries took place four miles distant from or to discard it if it supported the plaintiff's the land, and the only testimony in the reccase. It is an elementary doctrine that in ord as to Maxwell's recognition of his boundejectment the plaintiff must recover on the aries is given in his own testimony, as folstrength of his own, and not on the infirini- lows, on page 246 of the record: “Question. ty of the defendant's, title, but the defend- State whether or not there was ever any ant cannot resist the plaintiff's demand by pointing out of the boundaries of your possetting up two absolutely contradictory de- session of the land by you and Mr. Maxwell. fenses; that is to say, he cannot at the (Objected to by plaintiff's counsel. Objecsame time hold under and adverre to the tion overruled. Exception reserved.) Anplaintiff; he cannot take possession under a swer. Just between us? Q. Yes, sir. A. deed conveying 100 acres, and thereafter Yes, sir; there was. Q. State what boundacreate a title to 200 without showing a dis- ries were pointed out. (Objected to by plaintinct adverse claim to 100 acres not eni- tiff's counsel. Objection overruled by the braced in his deed. The vendor, having court. Exception reserved.) The Court: placed him in possession under a deel con. You can state what boundaries you fixed veying 100 acres, has a right to presne upon the earth's surface with regard to your that no more than that amount is claimed respective possessions. A. The boundaries until some distinct act on his part dllscloses were what you read in that description an intent to claim land not embraced in his there." On cross-examination he admits that deed. In other words, a vendee, while hold- the "pointing out" took place four miles dising possession under a deed, is estopped to tant from the land. Surely, no one can take deny the title of the vendor. He cannot this record, and upon examination thereof set up an outstanding title in himself. Bald- come to the conclusion that Maxwell, at the win v. Brown, 16 N. Y. 359; Jackson V. Vermejo station, four miles from the propHarrison, 17 Johns. 66; Jackson V. Ayres, erty in controversy, pointed out to the de 14 Johns. 224. If he undertakes to hold fendant in error a description of bis boundaunder his deed, he must confine himself to ries, as set out in his plea in this case. I the bounds. Sedg. & W. Tr. Title Land, pass over the fact that plaintiff's vendor, p. 577; Hughes v. Israel, 73 Mo. 548; Fugate Maxwell, is dead, and cannot be heard to v. Pierce, 49 Mo. 441; Pope v. Hanmer, 74 give his explanation of the transaction. I N. Y. 244. So long as he is holding under pass over the further fact that, in my opin. his deed, good faith to his vendor re- ion, the testimony given by the defendant quires that he shall be bound by its recitals. in error as to his conversation with MauldCrispen v. Hannavan, 50 Mo. 548; McRae ing and Curtis, his copartners, was clearly V. Williams, 7 Jones, (N. C.) 430; Crary incompetent for the purpose of saying that, V. Goodman, 22 N. Y. 170. In this case the admitting its competency, it wholly fails, in record fails to disclose any act upon the my opinion, to maintain the defendant's part of the defendant in error indicating an claim to what he describes as the drainage intention to hold adversely to his grantor of the river. any lands outside of the boundaries of his It is insisted for the defendant in error deed, prior to the filing of his plea in this that at the date of his purchase from Max

Much was said in the argument about well, to wit, in 1868, the statute of frauds the use of the term “drainage." The whole was not in force in this territory, and there burden of the defendant's contention is that fore a verbal sale, accompanied by a deliv. he was for more than 10 years prior to the ery of possession, operated to confer a perinstitution of this suit in possession of the fect title. I am of the opinion that this "drainage" of the river. I submit that this proposition is not only unsound in the abcontroversy offers no occasion for the defini- stract, but clearly erroneous in its application of the term "drainage.” I agree per- tion to the facts in this case, for admitting fectly with the majority of the court as to that the statute of Charles II. had not at the meaning of this word, but the defendant this time been incorporated into the juris in error did not, under his deed, acquire any prudence of this country, and that title to title to the "drainage" of the Vermejo river, land at this time was governed by the civil any more than he acquired title to the coun- law, a paper title was recognized as creating ty of Mora and the territory of New Mexico. the highest character of estate. But I inHe bought a certain strip of land within sist that at the date of this transaction a the drainage, and on each side of the river; deed was necessary for the conveyance of and I submit that the statement in the opin- title to real estate in this territory. By the ion of a majority of the court that "Dawson acquisition of this territory under the treaty spoke to Maxwell in regard to where the of Guadalupe Hidalgo, we inherited, for the drainage would place the line around the time being, the civil law as it was admintract of land that he was to get, and there istered at that time by Spain and Mexico. fore must have been understood to have It was held by the supreme court of the known that Dawson was claiming such a line United Suates in the Percheman Case, wherein Chief Justice Marshall discusses could be conveyed under the Spanish or this question very elaborately, that while the Mexican law without an instrument in writright to the soil is changed by the acquisition ing, unless it were, perhaps, in the case of of territory, and while the allegiance of the an executed contract, where corporeal posinhabitants is shifted from the old to the session was delivered at the very time of new government, that their property rights the sale by actual entry upon the premises, are not altered or changed, and the acquisition and the doing of certain acts analogous to of territory brings with it always an im- the livery of seisin at common law. Had plied, and generally an express, obligation this not been so, one main branch of the upon the part of the new government to pre- revenues of the Spanish crown and Mexican serve and protect those rights. 7 Pet. 86. republic, called the 'Alcabala,' being a duty Before proceeding, however, to examine the payable on the transfer of land, would have doctrine of the civil law, as administered been easily evaded. By Law 29, lib. 8, tit. by Spain and Mexico, at the time of the ac- 13, of the Recopilacion de Indias, every sale quisition of this territory, it is well enough of real estate was required to be made beto observe that from that date the tendency fore the escribano of the place where the has been towards the principles of common contract was entered into, and, if there were law. There are not wanting authorities to no escribano, before the judge of first inthe effect that the mere acquisition of terri- stance; and these officers were required to tory upon the part of the United States, furnish a copy and statement of the writings and the extension over such territory of the and contracts made before them, with the jurisprudence of our government, carries day, month, and year in which they were with it, proprio vigore, the common law. made, the names of the seller and purchaser, It was held by the supreme court of Utah and the property sold and exchanged, and that it did not require an act of the legis- the price. Arrillaga's Decretes, (volume for lature to adopt the common law in that 1838, p. 421.)" This opinion concludes with country. Thomas v. Railroad Co., 1 Utah, the following declaration: "We do not 232. And in Ohio, where, by the act of Oc- doubt that a writing was as necessary for tober 1, 1795, the legislature adopted the the transfer of lands in Mexico as it is in common law as a rule of practice and de- the United States.” This was also affirmed cision, which act was repealed by the act of in the case of Hayes v. Bona, 7 Cal. 159, January 2, 1806, the supreme court of that where the court, speaking through Mr. Jusstate, in construing this latter act in the case tice Murray, said: "In Hoen v. Simmons, of Drake y. Rogers, 13 Ohio St. 29, held that 1 Cal. 122, this court held that a verbal sale it did not require any statute to put in force of land was not valid under the Mexican law. the common law of England, and that, there- As a general proposition, it may be stated fore, the repeal of the former act by the that under the Spanish law a sale of real latter did not operate as a repeal or abroga- estate by parol would not be void per se, tion of the common law. Chancellor Kent, and that the distinction between parol conin speaking of the common law, as admin- tracts and specialties, known to the common istered in this country, adopts the following law, does not exist under the civil law, or language: "We live in the midst of the com- the Mexican system of jurisprudence heretomon law. We inhale it at every breath, fore in force. By Law 29, bk. 8, dt. 13, imbibe it at every pore.

case.

We meet it when of the Recopilacion de Indias, every sale of we wake and when we lie down to sleep, real estate is required to be made before the when we travel and when we stay at home. escribano of the place where the contract It is interwoven with the very idiom that is entered into, or, where there is no escriwe speak. And we cannot learn another bano, the judge of the first instance." This system of laws without learning at the same whole question was afterwards disposed of time another language." It is admitted, in a very summary manner in the case of however, that this doctrine does not apply Stafford v. Lick, 10 Cal. 12, in an opinion so fully to the territories acquired by this delivered by Chief Justice Terry; Justices country from France and Spain and Mexico, Field and Burnett concurring. The case is which were civil-law countries. What I af- a short one, and I quote it in full: “This is firm, however, is that the title set up by the an action of ejectment for a lot in San Frandefendant in this case cannot be supported cisco. Both parties deraign title from the by the most liberal construction of the civil same source, defendants claiming under a law, as derived from the latter country. In paper executed on the 6th of October, 1846, the case of Hoen v. Simmons, 1 Cal. 122, the which is in the following words: 'By this supreme court of that state uses the follow- present I give ample and sufficient power to ing language: “But the defendants say that Don Jose de Jesus Noe to use or dispose of by the Mexican laws a verbal contract for my lot, which I hold (or have) granted, as the sale of land was equally valid as if it may seem best to him; and in testimony were in writing. We think not, and so held I give the present power, in the place of in Harris v. Brown, 1 Cal. 98. There is no Yerba Nuena, the 6th day of October, 1846. doubt about the correctness of that decision. Maximo Z. Fernandez,'—and the main quesThere never bas been a time, since the adop- tion raised by the record is whether this tion of the Fuero Juzgo, in which lands paper is a suficient conveyance. In Hagen

v. Bona, 7 Cal. 158, we held that contracts for the sale of land, under the Mexican law, and by the custom of California, required to be in writing, and although the forms prescribed were not strictly followed, still it was necessary that the instrument should contain at least the names of the parties, the thing sold, the date of the transfer and the price paid.' This view is decisive of this case, and on the authority of the opinion in Hayes v. Bona the judgment of the court be. low is reversed.” It seems to me that, in the absence of any statutory legislation on the subject, this disposes of the question, so far as concerns the position taken by a majority of the court,-that the sale of this 20,000 acres from Maxwell to the defend. ant in error was a good civil-law sale. The most liberal erpretation of that contract does not bring it within a single requirement of the civil law, as it existed at that time. There were no well-defined boundaries; there was no delivery of possession; there was no acknowledgment before any of the authorities; there was no erection of monuments; there was no writing containing the names of the parties, the thing sold, the date of the transfer, and the price paid. Indeed, the whole transaction did not exhibit the faintest shadow of a trace of civil law conveyance of real estate, as understood and administered by the laws of Mexico. But we are not left to any doubtful construction of the civil law in determining whether the defendant in error took any title under the verbal arrangement with Maulding and Curtis, which he says was afterwards recognized by Maxwell pointing out to him his boundaries at a distance of four miles. The legislature of this territory, in 1852, thought it necessary, in order to preserve Spanish and Mexican titles derived before its acquisition, to pass an act specially validating them, and for that purpose provided by the act of January 9, 1852, that “all manner of contracts celebrated under the laws of Mexico shall be and are held settled under the same laws, without being affected in the final decision of them by the application of any territorial law.” It was further provided that contracts entered into from the time of its occupation by Gen. Kearney should be governed by the rule or law under which they were authorized, without being annulled in any manner, and this provision was made especially applicable to “grants of tillable lands made by the authorities of the same period.” It seems, however, that even at that early date the people of this territory were anxious to reform the civil-la w mode of acquiring real estate, and, fearing lest the provisions already quoted might in some manner be regarded as authority for the continuation of that system, the same legislature, three days thereafter, to wit, on the 12th day of January, 1832, enacted certain provisions, which are carried into the Compiled Laws at section 2748, which provi

sions created a perfect code for the regulation of transactions involving the title to real estate. The third section of that act provides, substantially, that any person bolding any right or title to real estate in this territory, be it absolute or limited, in possession, remainder, or reversion, may convey the same in the manner and “subject to the restrictions prescribed by this act." The thirteenth section provided for “signing, acknowledging, and the certification and registration of such titles," while section 20 made such writing evidence in all the courts without further proof. It was while these statutes were in force that this transaction took place. It was for the purpose of conveying the estate under this statute that the deed from Maxwell to Dawson was executed, and by the latter recorded. It was under this deed that Dawson held possession of the land until the lapse of time and the death of Maxwell made it possible for him, as he supposed, to acquire title to a much larger portion of land under a verbal agree ment tenfold more vague and uncertain than the language used by the sons of Heth in the transfer to Abraham of the country surrounding the cave of Macpelah. It is in sisted, however, for the defendant, that his vendor, Maxwell, recognized the boundaries which he sets out in his plea. I have already endeavored to show that this so-called recognition is too vague to be regarded by this court as fixing the boundaries sought to be established in this case. But, were it otherwise, there is another consideration that, to my mind, destroys this defense: Passing over the fact that Maxwell is dead, and therefore cannot be heard to tell his story, I am of the opinion that any state ments made by Maxwell calculated to impair the title of his vendee, the plaintiff in this case,

were incompetent. Monnot V. Husson, 39 How. Pr. 453.

KNAEBEL V. SLAUGHTER. (Supreme Court of New Mexico. Aug. 23,

1893.) JUDGMENT BY DEFAULT. Practice Act 1891. $ 4, provides that within 10 days after defendant's appearance plaintiff shall deliver to him or his attorney a copy of the declaration, and each successive pleading thereafter shall be filed with the clerk, and a copy served on the opposite party, or his attorney, within 10 days of the filing and sertice of the next preceding pleadings; and failure to file and serve a pleading within the time required shall entitle the opposite party, if plaintiff, to a judgment nil dicit. Held, that judgment nil dicit cannot be entered in favor of plaintiff while a plea of set-off by defendant is on file and undisposed of, especially where the cause is set for trial on the issues thus made.

Error to district court, Santa Fe county; Edward P. Seeds, Judge.

Action of assumpsit by WiWam J. Slaughter against John H. Knaebel. There was a

Judgment nil dicit in favor of plaintiff, and pro confesso; if defendant. to a judgment defendant brings error. Reversed.

or decree of dismissal; provided, such judg.

ment or decree is obtained before the pleadCharles A. Spiess, for plaintiff in error.

ing is filed and served." The record in this L. G. Read, for defendant in error.

case shows that the plea was filed when the

judgment nil dicit was taken. Judgment LEE, J. In this case the defendant in nil dicit could not be rendered while the deerror, as plaintiff below, brought an action fendant's plea was on file and not in any in assumpsit against the plaintiff in error, way disposed of, and especially while the John H. Knaebel, which was made return- cause was set down for trial on the issues able under the act of 1891, providing that thus made. The cause will have to be rethe first Monday in each month shall be a versed and remanded to the court below for return day, and requiring the defendant to further proceedings in accordance with the enter his appearance in the office of the views herein expressed. It is accordingly clerk of the court on or before the first re- so ordered. turn day to which the writ is made returnable, or judgment by default shall be ren- O'BRIEN, C. J., and SEEDS, FALL; and dered against him. Service was made on FREEMAN, JJ., concur. tbe defendant on the 24th day of September, 1892, and on the 29th day of October, 1892, the defendant entered his appearance by Charles A. Spiess, his attorney. On the 3d MOORE et al. v. BROWNFIELD. day of November, 1892, there was filed in

(Supreme Court of Washington. July 12, the office of the clerk of said district court

1893.) in said cause a stipulation as follows: "It

BOUNDARIES-MEANDER LINE OF LAKE-ADVERSE is hereby stipulated by the parties to the

PossE8SION-NOTICE OF APPEAL. above-entitled cause, by their attorneys of 1. In an action to recover possession of record, respectively, that the time for an- land it appeared that plaintiffs owned land swering or putting in a plea in the above

bounded by the meander line of a lake as first entitled cause is here

surveyed by the government in 1855; that the postponed until the

waters of the lake receded, and left the land first Monday in December, 1892.” After- in dispute lying between the present and origwards, on the 6th day of December, there

inal meander line of the lake; and that dewas filed in the office of the clerk of the

fendant took possession of and built a house

on the land in 1879, and has ever since resided district court a plea of set-off by the defend- there. Defendant claimed, and witnesses tesant. On January 6, 1893, the record shows tified, that the land first settled on by him was that the cause was set down for trial on the

an island, separated from plaintiffs' land by

water several feet deep, and was part of the third Tuesday of the term. On the 29th day public domain. Several witnesses supported of said term, the same being Friday, Feb- plaintiffs' claim that no such island ever exruary 3, 1892, the following order appears:

isted, and the plat of the original survey of the “Now comes said plaintiff, by his attorney,

township showed none. Held, that the evidence

was sufficient to justify a verdict for defendMr. Read, and, said defendant having failed ant as to the facts in issue. to plead herein within the time required by

2. Code 1881, $ 26, which reduced the 20law, and saying nothing in bar or preclu

year limitation of actions to recover real estate

to 10 years, has no retroactive effect, and the sion of plaintiff's action, whereby he re- claimant of land out of possession had 10 years mains undefended herein against said plain- after the enactment of the Code in which to tiff, it is therefore, considered and ad

bring an action for its recovery against a per

son who held it adversely at the time of and judged by the court that said plaintiff re

for two years prior to such enactment Sohn cover of said defendant his damages by rea- v. Waterson, 17 Wall. 596, and Baer v. Choir, son of the premises; and, said plaintiff not

32 Pac. Rep. 776, 6 Wash. followed.

3. Where notice of appeal is given in open demanding a jury, the court, after hearing

court, no other notice or service is necessary. the evidence, assesses the damages of said plaintiff at one hundred and fifty-five dollars

Appeal from superior court, King county; and forty-seven cents,"'--for which amount

Richard Osborn, Judge. the judgment was accordingly entered. The

Action by James A. Moore, Eugena G. fourth section of the practice act of 1891

Moore, and the Clise Investment Company provides as follows: "Within ten days after

against D. F. Brownfield to recover posses

sion of certain real estate. From a judgthe defendant's appearance is entered, plaintiff, or his attorney or solicitor, shall deliver

ment entered on the verdict of a jury in fa

vor to the defendant, or his attorney or solicitor, a

of defendant, plaintiffs appeal. Re

versed. copy of the declaration or bill of complaint, and each successive pleading thereafter shall

H. R. Clise and Harold Preston, for apbe filed with the clerk and a copy served on

pellants. Isaac Miller Hall, for respondthe opposite party or his attorney or solicitor,

ent. within ten days of the filing and service of next preceding pleadings. And failure to ANDERS, J. The respondent moves the file and serve a pleading within the time court to dismiss the appeal for the alleged required shall entitle the opposite party, if reasons that no notice of appeal was ever plaintiff, to a judgment nil dicit, or decree given in this action, as required by law,

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