Gilman v. Riopelle

Authentication of Zf. S. documents: Certificates: Mate law. The mode of authenticating the documents, records and proceedings of any of the departments, or courts of the United States is governed by the laws of the United States, and by the practice of such departments and courts, and not by the statutes of a State. — Lacey v. Davis, h Mich. IkO. Official certificate: Evidence to what extent. In an action of ejectment, a paper purporting to he a copy of a surveyor’s field notes on file in the United States Land Office, and referring to several distinct land claims, was offered in evidence, under an objection that the official certificate attached did not cover all of the claims contained therein. Held, that it does not follow that because something is incorporated in such a paper which the ¿certificate does not cover, the paper is to he wholly excluded. The fact that a portion of the recitals are not authenticated may be a sufficient reason why such portion should not he read, but cannot constitute a ground for rejecting another and entirely distinct and separate portion which is properly authenticated. Evidence: Consideration in conveyance: Value of premises. Where the question in dispute is, whether a quit claim deed conveyed the fee in the land described, or a leasehold interest only, it may he proper to put in evidence, to show that the real value of the land was many times greater than the consideration stated in the deed. Evidence: Hearsay: Proof of tenancy. Where, in ejectment one party claims that a person who had been in possession of the land in dispute occupied, as owner, while the other claims that he was in under a contract of lease, it is proper for the latter to give evidence of a conversation between a claimant to the land and'such person, before the latter took possession, tending to show negotiations for a leasing by him. Proof of such a conversation would not be hearsay, and it would he as competent to make it by a bystander as by the parties thereto. Evidence of motive. A witness cannot be asked why another party “wished” a certain act done which he directed, unless some statement of his purpose or motive accompanied the direction. Tax-titles based upon unpaid taxes by one in possession: Evidence. A deed given on a sale of lands for taxes cannot be excluded as evidence, on the ground that the tax purchaser was in possession when the tax accrued, if the fact of such possession is in dispute, and not admitted by the claimant under the tax title. Nor if the possession, at the time were undisputed, would it he sufficient ground for rejecting the deed, as that fact would go to the validity of the deed, and not to its admissibility. Tax-Title: Matute of Limitations: Possession: Evidence. The ten years limitation in the tax law of 18d2 — Laws of 181&, p. 138 — does not apply in favor of a party who was in possession under some other claim, at the time of obtaining the tax title. It intends that the party who seeks the benefit of the limitation shall enter, or shall have entered, into the actual possession under his tax deed. Held, also, that this is 'an objection going to the effect and sufficiency of the deed, and not to its admissibility. Conveyance; Description of premises. Where definite and permanent boundaries are given, a deed must be considered to convey all tbe land within those boundaries, notwithstanding the quantity is much greater than thaf'mentioned. Conveyance: Description for purposes of assessment. The premises in a tax deed were described as “ thai part of private claim 61 lying east of the north branch of the River Ecorse, in township 3 S. of R. 11 E.” It was objected that this description was insufficient for'the purposes of assessment under the tax law of 1843, because not being the subdivision of any section authorized by the United States, for the sale of public lands, it was necessary under Section 2 (Laws of 1843, p. 66) “to state the name or number of the lot or tract, or by what other lands it is bounded.” Held, that the description was sufficient. The requirement that the premises shall be described by the lands which bound them, has reference to those cases in which the tract is not known by name or number, and in which such a description would be most likely to attract the attention of the person interested in the payment of the tax. Evidence: Custom as to gift of land to eldest son. Evidence of a custom among old Erench settlers to give their farms to their eldest sons, is not admissible to establish such a gift in a particular case, where no direct evidence of the gift has been given.

Error to Wayne Circuit. This was an action of ejectment to recover 20 Ty=0 acres upon Private Claim 61, in town 3 south, range 11 east, being Ecorse, Wayne County; and one half acre nearly adjoining. Both parcels lie east of the north branch of the Ecorse river, and between the river and the northern line of town 3. The claim seems never to have been paténted to any person by the U. S. Government. Plaintiff 'claims title through one Ambroise Riopelle, whom he alleges claimed the land at, and befor’e, the evacuation, of this country by the English, under the Jay Treaty in 1796. That Dominique Riopelle, a younger son of old Ambroise, also claimed to own, and exercised acts of ownership over the whole claim, although no deed passed from Ambroise to him; and that Dominique deeded to plaintiff and Alexander, his brother, which brother quit-claimed to plaintiff that part in question in this suit. Plaintiff claimed that both Alexander and himself had exercised acts of ownership over the land, and that the possession of defendant and those through whom be claimed, was but a tenancy under plaintiff or his grantors. Defendant claimed a two-fold title: First. — Through. Toussaint Riopelle, who was the eldest son of old Ambroise Riopelle, who, it is claimed entered and exercised acts of ownership after his father’s death; through Sophia Vermet, wife of Joseph Vermet, and daughter of Toussaint, who entered in 1832, claiming title in fee, and who, with Joseph Vermet, her husband, conveyed to Abraham Blanchet by deed, July 8, 1845, who conveyed to Augustine Vieux, by deed, January 28th, 1852, who conveyed to Francis Gilman, defendant, by deed, December 20, 1852. The possession, since July 8, 1845, of Blanchet, Vieux and defendant, has been uninterrupted, and, as defendant insists, under claim of ownership. Second. — Under a tax deed from the State of Michigan, dated November 30, 1846, for tax sale made October 6, 1845, for delinquent taxes for the year 1843. Judgment was rendered for plaintiff. The exceptions 'to the rulings of the Court are stated in the opinion. The following are the errors assigned: 1. The Court erred in admitting in evidence the copy of the field notes of Private Claim 61, and the adjoining claims 118 and 119, with the certificate thereto attached. 2. The Court erred in admitting the evidence of defendant in error as to the value of the land in controversy in 1845, when it was first fenced. 3. The Court erred in permitting Alexander Riopelle to testify to a conversation between Joseph and Antoine Vermet, when Joseph came to Antoine to see about getting the place. 4. The Court erred in permitting Antoine Vermet to answer the question, “why did Dominique wish the (Laribell) . house thrown down ? ” 5. The Court erred in excluding from evidence the Tax Deed from the State of Michigan to Abram Blanchet, dated' November 3, 1846. 6. The Court erred in refusing to permit Burdeno to answer the question, “ what was the' custom among the old French settlers as to giving their farms to their eldest sons ? ” 1. The certificate of the copies of the field notes was defective. It purported to be a certificate of the notes of but one of the Private Claims in question. %. The evidence touching the value of the land in 1845, we submit, was irrelevant and tended to lead the jury from the true question in issue. The true principle upon which this kind of testimony should be excluded is, that it does not relate to the issue, and tends to call attention from ,the point in issue, to excite prejudice or sympathy, and the adverse party is not prepared to rebut it. — 1 Greenl. on Ev. $52. “It is not proper to allow irrelevant testimony to be considered when it can at all tend to embarrass the cause or mislead the jury.” — Penn. Mining Go. v. Brady, H Mich. 265. 3. The conversation between Joseph and Antoine Vermet, in which statements prejudicial to his claim of title were made by Joseph, was inadmissible, as Joseph was not in possession of the land at the time. This action was based on possessory title, and the declarations of the parties, or those under whom either of them claimed, were admissible only as qualifying, or affecting their acts of possession. They are received to show the the nature of the possession. Hence we say, the thing to be qualified must exist, in order to admit the qualification. To admit the statements or declarations of a party, a stranger to the record — made at a time when he is not in possession — is, in effect, to admit hearsay evidence without qualification. These declarations are only relieved from the general disqualifications which attends hearsay evidence, when they possess the saving characteristic of concurrent possession. In other words, the admissions must be those of an occupant. — 5 Carr. & P. 575; 2 J. J. Marsh. 380. The rule seems to be almost without exception that occupancy must accompany the statements. — Jackson v. Vredenburgh, 1 Johns. 158; Church v. Burghardt, 8 Pick. 827; Reed v. Dickey, 1 Watts, 152; Norton v. Pettibone, 7 Conn. 319; Jackson v. Murray, Anthon, 105; Inhabitants of West Cambridge v. Inhabitants of Lexington, 2 Pick. 586; May v. Jones, 4 Litt. 21; Jackson v. Meyers, 11 Wend. 538; Hail v. Gittings, 2 Har. & J. 880; Little v. Libby, 2 Greenl. 242; Smith v. Martin et al. 17 Conn. 899; Hannon v, Pettitt, 5 Barn. & Adol.. 228; Carne v. Nicoll, 1 Bing. N. C. 1¡A0; Doe dein. Mantón v. Austin, 9 Bing. 41¡ Doe dem. Baggaley v. Jones, 4 Campb. 867; Greenl. on Bv. §§ 189 and 109. A few cases have held the contrary, but they have been afterwards given up by the courts which decided them. — 1 Phil, on Bv. (C. & H. notes), 196. And some authorities limit the statements to the time of entry. — Brabaker v. Poage, 1 Monroe, 125. 4. It was an error to permit the witness Antoine Yermet to testify to the motives of Dominique Riopelle in wishing the Larribel house torn down. This is the fourth assignment. While the actions or declarations of a party in possession are clearly admissible as qualifying such possession, we submit a witness cannot testify to the motive which influenced such acts or declarations. The motive is to be found by the jury from the actions and declarations. It is for them to say whether such words or deeds evince a claim of title or not. 5. The tax deed was improperly excluded. The objections to its introduction were: 1st. The description was too general, in that while it purported to convey all that. part of the private claim east of the north branch of the Eeorse river — which was some 160 acres — it limited the amount to 20^¶- acres. We reply to this: a. The description is limited to that part of the claim east of the north branch of the Eeorse river in Township 3, S. of R. 11 E. and this is about one-half of that part of the claim lying east of the north branch of the Eeorse, or about 80 acres. b. But the principle is the same whether 80 or 160 acres, and we say, the description would be complete if the words “containing 20acres more or less” were omitted. These words cannot limit the amount to 20x^- acres. - In construing deeds, effect will be given to every part of the description if practicable, but if the thing intended to be granted appears clearly and satisfactorily from any part of the description, and other circumstances in the description are mentioned which are not applicable to that thing, the grant will not be defeated, but those circumstances will be rejected as mistaken. — Jaclcson v. Moore, 6 Cow. 717; Emerson v. White, 9 Fost. Ifi9; 2 Parsons on Qont. 26, 62 and ncte; Broom’s Leg. Max. IfiS, 1¡Q9; Anderson v. Baughman, 7 Mich. 77 j Oicott v. Qagnier, 2 Mich. 881. This tax deed purported to convey all that part of private claim 61 lying east of the north branch of the Eeorse river, in township 3, S. of R. 11 E. This was capable of positive location. The 20-^- acres and the one acre in dispute lie in this tract of 80 acres somewhere. The record, then, we say, was notice to plaintiff when he took his deed from Dominique, July 1, 1848, of the real land intended to be covered by the tax deed.— Cooper v. Bigley, 13 Mich. 4-68. 2. The second objection to the introduction of the tax deed was, that the description was not in accordance with the statute relative to the assessment and collection of taxes. We insist it was. The deed was given November 30, 1846, based upon a tax sale made October 6, 1845, for delinquent taxes for the year 1843. The taxes were assessed then under the act of March 8, 1843, which took effect March 18th, 1843. By the provisions of sec. 12 of this act, the assessments were required to be made between the third Monday of April and the fourth Monday of May. — Laws of 1848, ¶. 60. By the provisions of this act the description of real estate is required to be as • follows: When the land was not a government section or subdivision of a section: “If less or other than any such subdivision, it shall state the name or number of the lot or tract, or by.what other lands it is bounded.” — Act of 1848, § 16. This deed described the land as “ Private Claim No. 61,” and came within the requirements of the statute. 3d. The third objection to the tax deed was that Blanchet was himself in possession of the land when the alleged tax title accrued. The facts do not sustain this objection. The objection is based upon the doctrine as enunciated by this court, that one in possession of lands, claiming title after taxes having become a lien thereon, can acquire no additional interest by suffering the land to be sold for such taxes and becoming the purchaser. — Lacey v. Davis, 4 Mich, lift ; Tioeed v. Met-calf, Ld. 579. But this doctrine has no application to this case. This sale was for delinquent taxes of 1843. Uuder the act of 1843 the assessment became a lien from the 1st of November of that year (1843.) — Act of 1848, §#$. Blanchet did not go into possession of this land until July 8th, 1845, nearly two years after this tax had become a lien upon the land. And this tax sale was made October 6th, 1845, about two years after this assessment became a lien, and only three months after Blanchet had acquired title, and gone into possession. Hence we say, Blanchet was a stranger to this land wheta the tax was assessed — when it became a lien — when it was returned as delinquent to the Auditor General' — -when it was sent back for sale to the County Treasurer — when it was bid in by the state — when the time of redemption expired, and when it was sent back to the County Treasurer a second time for sale. So the reason of this doctrine, which has its foundation in the obligation of a person to pay taxes on property in his possession, and which he claims to own, fails. . If the tax deed was admissible, it was a complete bar'to plaintiff’s recovery. By the statute passed in 1842, plaintiff’s action is barred if not brought within ten years. —Laws of 18]$, p. 188, §§ 1 and 2. This act is by special enactment made applicable to the law of 1845. — Laws of 1845, p. 82, § 16. Plaintiff’s right of action accrued July 8th, 1845, whem Blanche!, under whom defendant claims, went into possession. This ten years’ limitation was not repealed until the Revised Statutes of 1846 took effect, which was March 1st, 1847. This action, not having been brought within ten years after entry and possession under color of tax title, is governed by the act of 1842. — Perry v. Hepburne, 4 Mich. 165. 1. The documentary evidence, from the General Land Office at Washington, was proper and sufficient in form. This evidence, in regard to the private claim in question and of the adjoining claims, was offered for the purpose of fixing the boundaries of the claims; and no objection was made to it, except with reference to the form of its authentication. The certificate is a printed form, which has been in use for all purposes of evidence, ever since the departments of the Federal Government have had existence. The document, taken altogether, is a regular, legal exemplification, technically, so called, and it therefore imports absolute verity. It imports, in the language .of the certificate itself, that it is a true, a literal, and a perfect copy of the papers, and of the whole of the papers exempli*fied. It would not be an exemplification unless it had this import and effect: such is the rule of evidence on the subject.— 1 Greenlfs Ev. 501; 1 Bouv. Law, Die. Ifi9; 1 StarJcie Ev. 189; 1 Phillip’s Ev. 884. These documents, thus certified from the several Departments at Washington, are expressly authorized by several acts of Congress, and are declared to be evidence in all courts of justice the same as the originals would be if produced. As to the' State Department. — Act of Sept. 15, 1789, 1 Statutes at Large, 69; Cited note a, on page 267 of Brightly’s Digest. As to the General ffiand Office.- — -Act of April 25, 1812, 2 Statutes at Large, 716; Brightly, p. Jfi2, § 8, 468, § 9, 464, § 86; Same, 468, § 9. As to Land Titles especially. — Act of January 28, 1828, 8 Statutes at Large, 721; Cited, § 14, on page 267 of Brightly. As to Treasury Department. — Act of Feb. 22,1849, 9 Statutes at Large, 84-7; Brightly 267, § 16. War, Navy, Attorney General and Post Office Departments. — Brightly, § 7, p. 267. Department of the Interior. — Act of May 81, 1854, 10 Statutes at Large, 297; Cited, Brightly 267, in Note. Such being the law of the United States, what has the statute of this state to do with the subject ? The objection to this evidence seems to have been based on § 71, p. 458, of R. S. of I846; 2 C. L. Art. 4,808. The statutes of this state cannot control Federal legislation upon the subject. Upon an examination of § 71 and what follows, it abundantly appears that it has reference solely to documentary evidence created aud existing in this state; or if it was intended to have reference to extra territorial evidence, it could only have been intended to provide for cases where the law did not otherwise provide for the authentication of such evidence. It is further to be observed that the papers in question do not derive their character as evidence from the laws of Michigan. They would have been evidence if no such institution as the State of Michigan had existed. 2. The question put to the plaintiff below as to the value of the land in 1845, was clearly competent under the theory of the case, which we sought to establish. If the forty acres was worth $1,000, the jury might well infer that Blanchet, in paying but $100, was buying only a leasehold interest, instead of a fee as claimed by the defendant below. 3. The conversation between Joseph and Antoine Verinet, which we showed by Alexander Riopelle, was not in the nature of an admission made by a person in possession, or by parties to the record. Such was not its character at all. The testimony was introduced to show that Joseph Vermut, under whom the defendant claimed, went on to the place in question, under an express agreement, as the tenant of Dominique Riopelle, from whom we derived the title. If the defendant, or those under whom he claimed, went on to the place as a tenant of him from whom the plaintiff claimed, he and they could not dispute our title, even if we had none; and this was what this testimony tended to pro ye. — Taylor’s L. and T. §§ 89, 91; Angelí on Lim. § m 4. The testimony as to tearing down the house partly built by Larabelle, was to show an act of ownership by Dominique Riopelle in pursuance of his claim of title. This was competent in connection with our testimony that Dominique claimed to own the farm, and leased it to Joseph Ver met, under whom the defendant claimed. Occupancy and acts of ownership on even a. part of a tract of land are evidence tending to show possession of the whole. — B Bouv. L. D. 851, § 1¡.5; Elliot v.'People, 10 Peters, 118, Iffi, 8, I; Moss v. Scott, 2- Dana, 275 and cases cited; 1 Goto. 286; Jackson v. Vermilyea, 6 Id. 681. 5. The tax deed, dated in. 1846, for the tax of 1843, was given to Blanchet. a. The first objection to it is that Blanchet was in the occupancy and possession of the land from 1842 to 1852, covering the whole time of the accrual of the tax title, claiming title, according to the theory and case of the defence, from Joseph Vermet and wife. The tax title is therefore bad under the decisions of this court. — Lacey v. Davis, I Mich. lJfi, 150; Tweed v. Metcalf, I Id. 579, 586. If a party who enters on land after a tax has become-a lien upon it, cannot,. by bidding it off at the tax sale, acquire a cumulative title, much less can he do so, who is in possession during the whole time, back, even prior to the assessment. b. The ten years’ limitation provided by section 2 of the act of 1842, page 133, does not apply to the case, because the defendant or those under whom he claims, did not enter under, or in pursuance of, the pretended tax title. And besides, that act was repealed,, without reservation by the revised statutes. — R. S. 1816, p. 782. The tax title is bad, generally. c. It appears that the whole farm contains two hundred and twenty acres; that it crosses the river Ecorse diagonally; that Blanchet occupied a small part fronting on the Ecorse in 1843; and that in 1845 he took a deed from Joseph Vermét of two acres wide and forty acres deep. It must be assumed from the deed that the assessor intended to assess a tract one acre wide and twenty acres deep, but whether it was the twenty in question, or the other twenty bought by 'Blanchet, or the tAventy which lies alongside of them, must be left to conjecture; and in making the assessment he purports to include one hundred and sixty acres in the same description; being at least one hundred and twenty acres more than Blanchet ever pretended to own. Such uncertainty is enough to defeat any paper which is relied on as the source or as part of aj chain of title. — Y. M. Society v. Detroit, 8 Mich. 172, 181/.. d. In order to constitute a good assessment and deed in the case, the presumption being that the description in the assessment is carried into the deed, the land ought to have been assessed by its name and boundaries, as required by the fourth subdivision of section 16. — Sess. L. 181/8, p. 66. In no other way, could a valid assessment be made of any part of this private claim, under the law then in force. 6. The offer to prove the custom among the “ old French settlers, as to giving away their farms to their oldest sons,” was incompetent. We are not informed whether it was the coutume de Paris, or the coutume de Normandie, or the coutume de V Ecorce, which it was proposed to prove by the witness. Nor is it very clearly defined as to what “old French settlers” were referred to by the question; whether those of Acadia, or Montreal, or Mackinaw, or Detroit, or some other part of La Nouvelle France. The ordinance of 1787, as to the descent and distribution of the property of intestates; and as to the disposition of property by wills, in writing; and as to the transfer of property by deed, under seal, must prevail. — See §2 of the Ordinance. Or the acts on the same subject, to be found in the codes of 1820, or 1827, or 1833.