Wertz v. May

1. The rejection of papers afterwards admitted is not the subject of an assignment of error. 2. A deposition taken in a former ejectment between the same parties for the same land may be read in evidence; and the termination of the former case by nonsuit instead of a trial did not affect the right to read it in evidence on the second trial. 3. A deposition is not objectionable because reduced to writing by the defendant’s counsel, if done in the presence of the adverse party and his counsel and by their consent and agreement. 4. It is competent for a party to show that a witness called to testify against him has related the facts, to which he has testified, differently on a former occasion whether under oath or not, the witness having been first inquired of as to his former testimony. 5. Evidence in support of the general good character of a witness is not competent until his general character has been assailed. 6. When the party has submitted no points or asked for any instruction, he has no right to complain that the Court had not fully instructed the jury.

Error to the Common Pleas of Bedford county. This was an ejectment to April Term, 1844, by Peter Wertz v. Daniel May, for about 124 acres of land. Plea, not guilty. April 27, 1846, verdict for defendant. May 2, 1846, judgment on the verdict. Writ of error to May Term, 1853. On the trial, the plaintiff gave in evidence an application by him, dated 13th September, 1833, for 200 acres. Then a warrant to said Wertz for 200 acres, dated 17th September, 1833, and survey thereon for 198 acres, dated 1st October, 1833. May, the defendant, claimed the land in dispute by virtue of an improvement made by him in 1821, and possession under that improvement. Plaintiff replied to this, that defendant’s improvement was not upon vacant land, but upon a survey in the name of John Taylor, dated 29th July, 1768; that defendant was there as agent of or tenant under the owners of that survey, and that at the time Wertz made his survey, and at other times, defendant limited his boundary by a line of that survey not including the land in dispute. The charge of Black, J., then President of the Common Pleas, as brought up, was, inter alia, as follows:— “ This is an ejectment for 124 acres of land, in Harrison township, for which the plaintiff shows that he made application on the 13th of September, 1833. A warrant was issued on the 17th of September, 1833, for 200 acres, and a survey was made of ,198 acres, including the land in dispute, on the 1st of September, 1833. This makes out, yrimd facie, a clear title in favor of the plaintiff. Let us consider whether the defendant has a better one. “ It is proved, by the oath of Ilezekiah Miller and John Miller, that May, the defendant, went on the land in the year 1821, and has lived there ever since with his family, making improvements, and raising grain. These witnesses being unimpeaehed and uneontradicted, it is right to presume that you will consider the facts stated by them as established. May, then, has a title by improvement to 400 acres, to be laid out around his residence, in a reasonable shape. This title is twelve years older than that which Wertz got under his warrant of 1833. “ The plaintiff denies the defendant’s right, under that improvement, to the land in question; and asserts, 1. That May did not live on vacant land. 2. That he limited his right by saying that he only claimed up to a certain line, which does not take in the land in dispute. “ As to the first allegation, it is said that May built his house on what had been called the Taylor tract. Mr. Reed says that he surveyed that tract, and May’s house is not on it. Mr. Gettys says he run the lines, and the house is within them. Mr. Stewart says, that when the line is run to the left, beginning at a certain cornei’, the house is thrown out, but when run from the same corner to the right, it is inside of the survey. It was hardly possible for three witnesses to give testimony more evenly balanced than this. The two first contradict each other, and the last one agrees with them both. “Not being able to anticipate what your opinion will be on the question, whether the defendant’s house is or is not on the Taylor tract, it becomes our duty to examine the evidence, and ascertain what ought to be the verdict, if it be within that tract. “A location (No. 5119) was entered on the 29th July, 1768. No survey was returned until 1829, a period of fifty-one years from the date of the location, and eight years after May’s improvement was commenced. It is not necessary for us to say anything about the irregularity of the survey given in evidence, because, if it were regular, it would not avail the owner against May’s improvement. There being no survey returned in 1821, May had as good a right to consider it vacant land as if there never had been a location for it. “ But it is argued for the plaintiff that because the defendant in' 1833 took a deed from Riley’s executors for the land (a part of it), called the Taylor tract, he is estopped from asserting that it was vacant. It is urged that the deed is conclusive evidence against him to show that the title was out of the Commonwealth. We cannot instruct you that this is law. If May, in 1833, was living on vacant land, and claiming it by improvement, and Reily’s executors set up a pretended title to part of his claim, and he bought out that pretended title, and took a deed for it, he is not estopped in this action from proving the truth as regards his improvement. He may still defend against Wertz on the best title which in law or equity he can make out. “ Another question remains to be settled. Did the defendant limit his claim under the improvement so as not to include within it the land in dispute ? “Peter Wertz, jun., says that he (defendant) told the plaintiff and others, when they were running one of the lines of the plaintiff’s survey, that he claimed merely up to that line. Mardath’s deposition corroborates this in part. He says that May told him he did not claim the land, but does not say that he mentioned that line, or any line, as the boundary of his claim. “ Peter Wertz, jun., was examined as a witness about this same matter on a former occasion.” The Court referred his testimony, on the two occasions, to the consideration of the jury. “ The verdict is not to rest alone on the conversation spoken of by Peter Wertz, jun., and Mardath. If May, at any other time, or in any way, limited his claim under the improvement so as not to include this land, Wertz had a right to take out a warrant for it and survey it, and ought to recover it here. “ So, if May lived on the Taylor tract under Reily, and not as improver for himself and if Reily’s claim was only for the land within the Taylor survey, the plaintiff ought to recover.” The following was specified as error:— 1. The Court erred in rejecting the evidence offered by plaintiff, as contained in the second bill of exceptions, as follows, to wit: “ Plaintiff offers a draft of 301 acres to John Taylor, made by James O’Conner, returned February 5, 1829, and to follow this with proof that Daniel May said that a certain line of this survey when it was made in 1827, was the boundary of his claim.” 2. In rejecting the evidence offered by plaintiff, as contained in the third bill of exceptions, as follows, to wit: “ Two papers — office papers, without date, offered with the O’Conner draft, to be followed by evidence of the payment of taxes by Gratz & Reily from 1800 up to 1830, and that May admitted that he was the agent or tenant of Reily." 3. In admitting the deposition of John Mardath, mentioned in plaintiff’s fourth bill of exceptions. This deposition is admitted to be in the handwriting of the attorney for defendant. 5. In admitting the evidence contained in plaintiff’s fifth bill of exceptions, going to prove that Peter Wertz, jun., a witness of plaintiff\ had given a different version of this evidence on a former occasion. Defendant having asked the witness what he had said on the former occasion alluded to, and the witness having answered correctly, defendant was bound by that answer. 6. In admitting the evidence contained in the sixth bill of exceptions, to wit: “ That plaintiff said he had bought about 72 or 75 acres of land from Dr. Anderson, and found out then that there was some vacant land, &e.” There being no proof that the “vacant land” alluded to was part of the land in dispute, the evidence was only calculated to mislead the jury. 7. In rejecting the evidence offered by plaintiff, as mentioned in the seventh bill of exceptions. Plaintiff offered to prove the characters of Peter Wertz, jun., and John Mardath. Defendant had assailed these witnesses by trying to prove contradictory statements. Under this state of circumstances, plaintiff had a right to prove that they were men of integrity and veracity: 2 Starkie’s R. 241; Greenleaf on Evidence, vol. 1, p. 521 ;3F. | Ser. 127. 8. In charging the jury, not so much in the language used as in omitting much which should have been used; in explaining the evidence of some of the witnesses, and failing to notice that of others ; and in failing to explain to the jury the law of estoppel, as applicable to the circumstances of this case.