Hatch v. Brown

Barrows, J.

I. It is not always indispensable that the plaintiff in a real action should trace his title back to the first person named as owner in an informal statement of title filed by him, under the direction of the court, in pursuance of R. S., e. 104, § 3. It is sufficient if he goes back in the line indicated far enough to show a better title than the defendant. To hold otherwise would often needlessly protract and complicate trials.

■ The alleged failure of the plaintiffs to show title in themselves from Willard cannot avail the defendant.

• II. The question put to Mary Ann Mayberry in cross-examination was within the discretion of the presiding judge as a proper test of the memory and truthfulness of the defendant’s witness, were it not admissible on other grounds. But the defendant put in as a muniment of title a conveyance of the property in dispute *416 made by Stephen P. Mayberry, to whom the question related; and it was part of the plaintiffs’ case to establish the fact that the defendant’s title accrued through the fraudulent contrivances of this man, and thus his acts and doings in relation to the property were pertinent, as we shall have occasion hereafter more fully to observe and show. The proof of fraud generally consists of proof of acts and omissions inconsistent with the pretences put forth by the fraudulent actors. Yiewed in this light the question had a legitimate bearing upon the case, whether the answer afforded the inference anticipated or not.

III. When a party uses a deposition taken by his opponent, but not offered in evidence by him, he makes it his own, and his opponent has the same right of objection to the interrogatories and answers which he would have had if the deposition had been taken by the party offering it; and he is not precluded by the fact that the interrogatories objected to were propounded by himself when the deposition was taken. Considered as questions propounded by the party using her deposition, the questions put to Henrietta Mayberry were rightly excluded.

IY. In order to understand how the testimony of Timothy Shaw, Samuel Tripp and Cyrus M. Wormell became relevant and admissible against the defendant’s objection, it is necessary to revert to the respective positions of the parties. The plaintiffs claimed that the land in controversy was conveyed by Willard to Benjamin Morse and William Mayberry by a deed never recorded, and now either lost, or in the possession of the Mayberry family, who, (they assert) are the defendants in interest in this ease.

The plaintiffs derive their title through a quitclaim deed of William Mayberry, made and delivered to Morse in 1856, in pursuance of an award of referees who were selected to determine all matters in controversy between said Morse & Mayberry, and thence through a warranty deed from said Morse to Thomas Hobbs given May 27, 1857. The defendant offers in support of his claim a deed from Stephen P. Mayberry to one Perkins, given in 1858, purporting to convey the title acquired by him by a levy made *417 November 12, 1857, upon an execution against Morse and William Mayberry. But he also relies upon a quitclaim deed from Mary Ann and Henrietta Mayberry, purporting to havebeen given in the fall or winter of 1869, and thereupon he claimed that the original deed from Willard, which he says is lost, was made not to Morse & Mayberry but to Jane Mayberry, who died in i860, the wife of William, and mother of Stephen P., Mary Ann, and Henrietta Mayberry, who still compose one family. The defendant is a kinsman of the Mayberrys. His own admissions, put in evidence by the plaintiffs, show that he took his title to the valuable lot" here in controversy without even having been in the town where it is situated, upon the recommendation of Stephen P. Mayberry, of whom he speaks as his agent in matters apparently connected with this, and by and through whom he transacted most of the business relating to his alleged purchase of the lot, and that he did not know of the existence of the deed of Mary Ann and Henrietta to himself until long after the time when it purports to have been given, although he spent a fortnight with the family in the fall of 1870, which was a year subsequent to its date. In fine, there is much in his own account of his connection with this business that tends to justify the inference that he is but the representative of Stephen P. Mayberry herein. The plaintiffs contend that whatever there is of testimony tending to prove the existence of a deed from Willard to Jane Mayberry was fraudulently created by Stephen P. Mayberry, when he found that his title under the levy upon the lot as the property of Morse & Mayberry must fail for want of a valid attachment; and, if the jury were satisfied by the admissions of the nominal defendant, taken in connection with the other evidence in the case, that Stephen P. Mayberry was in fact the defendant in interest, all his acts and doings touching the premises and even his declarations became pertinent. Bigelow v. Foss, 59 Maine, 164, and cases there cited.

Looking now at the testimony objected tó, we remark that Shaw’s testimony, respecting the names of the parties between whom he acted as arbitrator, was as to a purely collateral fact of *418 trifling importance, if any, — one which, might well be proved by parol, though there was written evidence of it, because it does'not come within the reason of the rule which calls for primary evidence, which is declared by good authority to be “the presumption of fraud arising from its non-production.”

It could matter little here who the parties were, and the evidence seems to have been offered by way of inducement to the more pregnant fact that Stephen P. Mayberry was then and there present and testified under circumstances which made it apparent that he must have known of the deed from his father to Morse of his interest in the land in controversy. Shaw’s testimony as to the finding of the referees was competent, as elucidating the circumstances under which this deed was delivered. It took its place with other circumstances developed in this trial, of greater or less importance, tending to show that the idea of a deed to Jane Mayberry was an afterthought to supplement the title by levy which must otherwise fail. It was not objectionable as secondary, for there is no reason to believe that such a matter would appear ,in the report of the referees. One of the questions to be settled between these parties was whether there was any force and effect in ,the conveyances of the Mayberrys to this defendant by reason of -a -pre-existing but lost deed from Willard, the original owner, to ■Jane Mayberry. It was remote and secondary proof that the defendant relied on to support his hypothesis. It was competent co meet it by proof of circumstances which tended to counteract the inferences that might otherwise be drawn from such testimony as the defendant produced.

’From this review of the position of the parties and the case, we see the admissibility of Tripp’s testimony to the long and oft-repeated searches of Stephen P. Mayberry in the records, and of Wormell’s to the poverty and consequent inability of Simon H. Brown to make any such purchase as these conveyances to him, if ■ bona fide, would indicate.

Y. The plaintiffs, soon after the commencement of the suit, had summoned the nominal defendant and taken his deposition con- *419 taming some damaging admissions tending to show that he was a mere instrument in the hands of others and not the bona fide owner of the lot which he claims, and not at that time well instructed in the part he was to play. The exceptions state that when the plaintiffs offered this deposition, defendant’s counsel said lie would take the ruling of the court upon its admissibility, “defendant being in court.” It does not distinctly appear whether he was in fact in court, but we think the fair construction of the exceptions is that he was — though neither he nor Mayberry, who appear to have attended the taking of some of the depositions and at consultations with counsel, offer to testify in the case. But that question should have been settled upon the spot unless the ruling was to be made upon the hypothesis that he was in court when his deposition was offered. Thus we have considered it, and are satisfied that, offered as this was, not as a deposition, but as a writing signed by the' opposite party containing admissions of which the plaintiffs desired to avail themselves, it was rightly received.

The defendant relies upon R. S., c. 107, § 17, which provides that a deposition shall not be used at a trial if the adverse party shows that the cause for taking it no longer exists. This we think means simply that it shall not be used as a deposition. The obvious design of the provision was to secure, where it was practicable, the more satisfactory test of the credibility of a witness by an examination before the jury in open court. The reason of the enactment has no application to the deposition of an opposing party who can have no temptation to pervert the truth against himself. It was only as a paper containing his written admissions that the deposition was offered and received. However obtained, they were competent evidence, subject to such explanations or additions as he might be able to make. It was not as a witness that the plaintiffs proposed to present him to the jury.

Take another ease where a similar question might be supposed to arise. A witness who has given his deposition at the request of one party is subsequently induced by the opposite party to attend *420 court and give testimony in Ms behalf. If it conflicts with that which he has previously given, we think it would be a misuse of the statute to hold that it prohibits the party who took the deposition from reading it as he might any other written statement of the- witness to affect his credibility. It is its use as a deposition only which is prohibited. Any other legitimate use which the party taking can put it to is not forbidden. This disposes of all the matters to which our attention has been directed in the exceptions.

The motion to set aside the verdict as against law and evidence cannot prevail.

The evidence called newly discovered bears upon its face sufficient proof that with reasonable diligence it might have been had at the trial. Motion and exceptions overruled.

Judgment on the verdict.

Appleton, C. J., Walton, Dickerson, Virgin and Peters, <TJ., .concurred.