Machette v. Wanless , 2 Colo. 169 ( 1873 )

Hallett, C. J.

It appears that one Goff executed to each of these parties a mortgage upon one-half of the crop growing on appellee’s farm, and that appellant first obtained possession of the mortgaged property. Appellee brought this action to recover the possession, relying upon evidence to show that appellant’s mortgage was given without consideration, and with intent to embarrass him in the collection of his debt. There was plenary proof that appellee’ s mortgage was given to secure a debt due from Goff to him, and the mortgage was regarded as being good against Goff alone, apparently upon the ground that the docket-entry, made by the justice who took the acknowledgment, is not conformable to the statute regulating such instruments. Counsel for appellant contend, that without a proper acknowledgment, and a full compliance with the statute in every particular, the instrument could not affect his right to the property, a proposition which is entirely correct. But if appellant had no right or interest in the property, of course his possession must yield to any demand which would be good against the mortgagor. And this was the point to which the evidence was mainly directed, and to which the court directed the attention of the jury. If the fact is as the jury found it to be, that the mortgage to appellant was given without consideration, he cannot resist the demand of one who has acquired title from Goff, any more than he could resist the latter, if he had made no transfer of the property. Holding, without right, appellant is not protected by the statute, or otherwise, from any legal demand acquired from the true owner, with whom the law will identify his possession. In this view it is not a question whether either of the mortgages was duly acknowledged before the proper officer, and such entry made in the docket of the justice, as the law requires; for with the most careful observance of these provisions, appellant’s mortgage must fail for want of a consideration, and appellee’s mortgage, without any acknowledgment whatever, is good against Goff, and all who stood in his position. In reply to the suggestion that appellee was allowed to set up title in appellant, for the purpose of overthrowing it, thus anticipating the defense, and putting in at the opening of the case evidence which should have been withheld until the close, it is proper to say that this is a matter of practice with which a court of review will not interfere, unless it is seen that mischief has grown out of it. In the present instance appellant appears to have accepted the defense indicated by his adversary, and to have relied upon the mortgage which had been previously assailed. To overcome the presumption of ownership arising from possession by appellant, it was necessary that appellee should show a title overreaching that possession, and this he did by showing the prior possession and ownership of Goff, and the conveyance to himself. I do not see that he was then required to meet appellant’s case, but his doing so is not, under the circumstances, an irregularity of which complaint can be made here. As to the legal operation and effect of these mortgages, the charge of the court to the jury is unexceptionable, presenting the points in controversy, fully and explicitly. So, also, the refusal of the court to admit testimony to show that the mortgage to appellee was not acknowledged in the precinct where the mortgagor resided, was not erroneous in the view which was taken of that instrument. The mortgage was good against the maker without acknowledgment, and therefore the certificate was not in question.

In connection with this last question, and some others relating to the admissibility of testimony, which have been discussed, it is proper to remark that they are not presented in the assignment of errors. The pertinency and admissibility of Mr. Benedict’s testimony is drawn in question by the ninth assignment of error, and also by the sixth assignment, referring to the charge of the court, and the sufficiency of the evidence to support the verdict is the subject of the first and second assignments. Beyond this there is nothing to present the exceptions taken to the rulings of the court upon the evidence. If it is claimed that these were presented in the motion for new trial, the assignment of error upon the ruling upon that motion cannot be regarded as raising ail the points contained in the motion. The twelfth rule of this court requires that errors shall be separately alleged, and particularly specified, and the object of it will be entirely defeated, if parties are allowed to present numerous questions by means of a single specification, based upon the action of the district court, upon such motion. Again, a motion for new trial, properly con sidered, is directed to mistakes of the jury as to the facts, or in applying the law to the facts; and although points decided by the court, relating to the testimony, or the charge to the jury, are frequently set down in the motion as grounds for new trial, and the court will always embrace the opportunity to correct errors in such points which may have been made, yet they do not arise upon such motion. All questions relating to the admissibility of testimony, ,and the charge of the court to the jury, arise upon the trial of the cause, and exception must be taken to the ruling of the court, upon all such questions, at the time it is made, in order to secure attention to them here. The fact that such questions are presented a second time, in the motion for new trial, does not enlarge or diminish the right of the party aggrieved to be heard upon them here. A fair construction of our twelfth rule demands that all exceptions of this nature shall be particularly referred to in the assignment of errors.

The conversation between Groff and appellant in the presence of Mr. Benedict is not within the rule which excludes communications made to an attorney for the purpose of obtaining his professional opinion. Advice was not sought from Mr. Benedict in relation to any matter, nor was the communication made to him with a view to consultation as to the rights of any one. He was simply asked to prepare a mortgage, and in doing so he acted as a scrivener merely. Disclosures of fact, made to him in that capacity, are not subject to the rule referred to. 1 Grreenl. Ev., § 239, n. Again, it was not shown that Mr. Benedict was an attorney at law, of which there should be evidence, to give appellant the benefit of his exception. That the testimony of this witness was entirely pertinent in connection with the testimony of Grove, upon the question of indebtedness of Groff to appellant, is, I think, quite plain. The anxiety of the parties to have the instrument drawn, before the mortgage to appellee could be perfected, is shown, by the statement subsequently made by appellant to Grove, to have arisen from a desire to shield the property from the just demands of appellee. The significant statement made at that time, together with the statement to Grove, and the conduct of appellant and Groff just prior to the service of the writ, made a case upon which the jury might well conclude that the mortgage to appellant was without consideration. If we look to the sufficiency of the evidence to support the verdict, no doubt can be entertained upon the point. The jury were properly charged as to the weight to be attached to appellant’s admissions, and if they chose to accept such admissions in opposition to the testimony of H. Machette, they were at liberty to do so. The facts were for the jury, and their determination, upon conflicting evidence, should not be disturbed. As to the instruction that the jury may disregard the testimony of a witness who has sworn falsely as to any material fact, we think that the jury could not have been misled by it. The possession of the grain by appellant, at, and immediately before, the commencement of the suit, was not denied; and, indeed, all of the witnesses who testified upon the point, agreed in relation to it.

The threshing, by appellant, if paid for by him, gave him no lien upon the property, and is not material to the case. That the note and mortgage to appellant were prima facie evidence of indebtedness on the part of Groff to him, is quite true, but these instruments were assailed, upon the ground that they were without consideration, and the testimony of this witness was offered in support of them. The witness was asserting the validity of the mortgage and note, and they were involved in his testimony, and became a part of it. The point in issue was the validity of the instruments ; and while that issue was on trial, the instruments could not be invoked to support the testimony. To bring the presumption in favor of the instruments to the support of them, is not the corroboration which is contemplated by the rule under consideration. In respect to matters which were controverted, the testimony of this witness was not corroborated, and the case is within the principle of Howard v. McDonald, 46 Ill. 123.

The claim for damages for the detention of the property rests upon the statute, and the rule of computation adopted by the court is sanctioned by Mr. Sedgwick and numerous authorities. Sedg. on Dam. (5th ed.) 582. Where the property is domestic animals, valuable for service only, the value of the use of the animal is, of course, the measure of compensation; but where, as in this case, the article is intended for consumption, interest upon the value of it would seem to be the true compensation. If the owner of the grain should wish to obtain the like quantity, he must purchase, in the market, at current rates, and he would be deprived of the use of the money thus invested. The best estimate of his loss, that can be made, is interest upon the amount of money which he would, for that purpose, be compelled to pay out.

It was entirely proper for the court to prescribe the form of the verdict to be rendered by the jury, and as they were told that it was merely a form, I do not see that it contained any suggestion as to what the finding should be. The court drew the form to be used in case the finding should be for appellant, as well as that to be used if the finding should be for appellee, and the suggestion was equally strong in favor of both parties. In addition to this, the jury were told that they were forms merely, and there were full instructions upon' all the points in the case. Under such circumstances the instruction could not have had any influence upon the verdict of the jury.

If the appellant is entitled to his costs because of the failure of appellee to make out a case as to all of the property, described in the writ as claimed by his counsel, he should move the court below for judgment of that kind. The omission of the judgment in favor of appellant is not fatal to that which has been regularly and properly entered in favor of appellee. The cases cited by counsel are to the effect, that as to costs, cross-judgments shall be entered in favor of each party, and if one party has obtained his judgment, and the other has not, the remedy would appear to be plain. Lansing v. Bates, 11 Ill. 551.

The judgment of the district court is affirmed, with costs.

Affirmed.