Breeding v. Stamper ( 1857 )

Judge Simpson

delivered the opinion of the court.

The process does not appear to have been served on all the parties, and therefore the case was prematurely tried, but this, according to the provisions of the Code, was only a clerical misprision, (sec. 578,). and is not a ground for an appeal until it has been presented and acted on in the circuit court, (sec. 577;) which has not been done in this case, and consequently the judgment cannot be reversed for this error.

A deposition was excepted to on the ground that it was filed in the clerk’s office by the party on whose side it had been taken. It was sealed when it was delivered to the clerk, but not having been delivered to him by the officer by whom it was taken, according to the requisitions of the Code, (sec. 646,) it was rejected by the court.

It is contended that this decision of the court was erroneous; that the provision in the Code, requiring the officer who takes a deposition to deliver it to the clerk is merely directory, and that if he fails to comply with the requisition of the law, his delinquency should not prejudice the party for whose benefit the deposition was taken, especially where, as in the present case, it has been delivered to the clerk with the seal unbroken.

The officer who takes a deposition is required to seal it up, and either deliver it or mail it to the clerk of the court. This duty is imposed upon him by law, to guard against the danger of interpolation or suppression. Its violation, without the knowledge or assent of the party at whose instance the deposition had been taken, where no prejudice had resulted therefrom to the opposite party, might not authorize the rej ection of the deposition; this point, however, it is not now necessary to decide; but where the party himself, for whom the deposition has been taken, participates in the delinquency of the officer, and aids him in violating his duty, the very reason upon which the law is founded, imperatively requires the rejection of the deposition. The court below, therefore, did not err in sustaining this exception.

3. One who having an equitable claim to land, assents to it3 purchase by another from a third person, will not be permitted to assert title thereafter under his equitable claim, especially as he received a part of the purchase money.

But the defendant denied, in his answer, that he had any knowledge whatever, of the equitable title set up and relied upon by the plaintiff until after he had purchased and paid for the land, and obtained the legal title to it. He also alledged that he purchased with the knowledge and assent of the plaintiff, who had received part of the purchase money, and concealed from him the existence of the claim he was then attempting to assert, and had actually purchased from him, subsequently, part of the same land by a verbal contract, thereby recognizing the validity of his previous purchase. He called upon the plaintiff to respond on oath to all these allegations.

The plaintiff, in his response, denied that he had assented to the .purchase made by the defendant. He also denied that the defendant had purchased without notice of his claim; alledged that he had himself informed him of it, but did not state whether he had done so before or after the purchase. He admitted that he had received part of the purchase money, and also that he had made a contract with, the defendant, after he became the owner of it, to purchase from him part of the same land, and offered some excuse for his conduct, which is wholly unsatisfactory.

We have no doubt, from his own admissions, that he did actually consent to the sale. He received from the defendant part of the purchase money, and afterwards made a contract with him for part of the same land. He could not then have intended to claim the land himself, under a contract with his father to support him during his life. His conduct was totally inconsistent with such an intention, and proves that he had abandoned all claim under the contract, or that it had been rescinded by the consent of the parties to it.

Wherefore the judgment is reversed, and cause remanded for further proceedings consistent with this opinion.