Anderson v. Parker , 6 Cal. 197 ( 1856 )

The opinion of the Court was delivered by Mr. Justice Terry.

Mr. Chief Justice Murray concurred.

This is an action to recover possession of the half of a one hundredvara lot in San Francisco, claimed by the plaintiff as the heir of one Cameron Anderson, who it is averred entered into possession of the lot, claiming title by virtue of a grant from T. M. Leavenworth, Alcalde of San Francisco.

From the record, it appears that Cameron Anderson had possession of the, premises by his tenant, until his death, and that afterwards, it was held by one Elston, as tenant of plaintiff; that Dallam & Whit-comb, with full knowledge of the tenancy, purchased from Elston, and took a conveyance of his right, title and interest in the premises; that Dallam & Whitcomb went into possession under the purchase from Elston, and whilst in possession, sold and conveyed to Stephen Parker, who acted by Barney & Townsend; that at the time of the sale to Parker, Barney & Townsend, who acted for him, were fully informed of the circumstances under which Dallam & Whitcomb came into the possession of the lot.

On the trial helow, the counsel for defendant seemed to have been allowed a very great latitude, in the introduction of evidence, and as a consequence, the record abounds with matter wholly foreign to the issue, and the arguments of the counsel upon appeal are addressed to many points which have no relevancy to the ease, and are not necessary to its decision.

In our opinion, it does not matter, so far as the parties to this controversy are concerned, whether the land lies within the limits of the pueblo of Yerba Buena, or whether Leavenworth had power to convey any lands of said pueblo. The plaintiff bases his right to recover, not on the validity of his title, but upon the fact of possession and occupation under color of title. The defendants having acquired possession from the tenant of plaintiff, (through Dallam & Whitcomb,) with a full knowledge of the tenancy, are not in a position to deny his title. Winans v. Christy, 4 Cal.

This view of the ease renders it unnecessary to pass upon the various questions, as to the boundaries of Yerba Buena, the authority of Leavenworth, or the title of Jose Y. Limantour—who is alleged in the answer to be the owner of the premises, unless they belong to Stephen Parker, or the United States.

It is contended that the Court erred in admitting hearsay evidence of the death of Cameron Anderson. We are of opinion that hearsay information of the death, derived from the immediate family of the deceased, is sufficient prima facie to establish the fact, and was properly admitted; besides, under the issues, it was not necessary to offer any proof upon that point; the complaint which was verified, contained an averment of the fact, which was not sufficiently controverted by the answer. The forty-sixth section of the Practice Act provides, that when the complaint is verified, the answer shall contain a specific denial of each allegation controverted by defendant, or a denial thereof according to his information and belief. The sixty-fifth section provides, that every material allegation which is not so denied, shall for the purposes of the action be taken as true.

It is contended that the Court erred in refusing to set aside the verdict as against law, because it was a joint verdict against defendants McCord and Etique, and Stephen Parker, who had not been served with a process, and who had not appeared in the action; and because there was no evidence that Stephen Parker was in possession at the time of the institution of the suit.

At a former term, the judgment in this cause was reversed on this ground, the records as filed containing no evidence of service on Parker, upon a representation that the record in the Court below contained evidence of such service, which was omitted in the transcript filed, and that the omission was not discovered by the respondent until after the submission of the case, by reason of the great length of the transcript, which contains near two hundred and fifty pages of manuscript. A re-hearing was granted, and leave given to respondents to supply the omission by filing a supplemental transcript, from which it appears, that on affidavit of Edward Stanly, attorney for plaintiff, showing that Parker concealed himself to avoid service of process, an order was obtained for the service on said Parker by publication.

The appellant now contends that the affidavit was not sufficient to authorize the order, and therefore the Court acquired no jurisdiction of the person of Parker. This point is not well taken; the affidavit was amply sufficient under the thirtieth section of our Practice Act, and the order was properly made.

It is charged by the counsel for the respondents, that the omission in the original transcript was intentional, and designed to mislead the Court as to the fact; and the different positions assumed by the appellant in* the original and supplemental briefs, are alluded to in support of the charge.

We are very reluctant to believe that any officer of this Court would designedly endeavor by such means to mislead the Court, and thus procure by fraud a favorable decision. Such a proceeding, if shown to the satisfaction of the Court, would unquestionably result in depriving the offender of an opportunity of again misleading it.

The objection that the verdict was joint, is decided in the case of Winans v. Christy, 4 Cal., 70.

The only remaining question arises on the refusal of the Court to give instructions asked by defendant. It appears that on the conclusion of the trial below, which had occupied several days, the defendant’s counsel handed to the Court fifty-eight written instructions, covering some twenty pages; upon this, the Judge remarked that he had then no time to examine the instructions, and therefore declined to give any of them, but proceeded to instruct the jury without reference to the instructions asked by either plaintiff or defendant. ' Some of the instructions asked, are undoubtedly proper, and would have been given, except under the circumstances of the case. We think, if counsel desired that such a number of instructions should be given, it was at least his duty to have presented them to the Court before or during the argument of the cause, in order that the Judge might have arrived at a knowledge of their contents, and be able advisedly to give or refuse them. As this was not done, it was not, we conceive, incumbent on the Judge to stop the progress of the cause, and keep the jury in their box until he should be able to investigate the various legal propositions contained in the instructions.

It is objected that the judgment is erroneous, because it awards restitution of the whole of the one hundred-vara lot, while the plaintiffs only claimed the south half of it. This, we regard as a mere clerical error, which should be corrected; but which, as it does not affect the defendants, is no ground for reversal.

The judgment of the Court below is affirmed as to the south half of the lot, being the premises described in the complaint.