Cutter v. Caruthers

By the Court, Rhodes, J.:

The plaintiff contends that there was no error in setting aside the order of submission and taking further testimony, because the rules of the District Court do not require any further notice of the motion than was given. This Court does not take judicial notice of the rules of the District Courts; and when a party relies upon such rules he should have them incorporated into the record. The error, however, was not productive of any jury to the defendant, for it appears that the only further testimony taken was a more particular description of a tract of land which had already been described by the surveyor in general terms, and by reference to a map then before the Court.

For the purpose of proving the boundaries of the McDougal tract, the plaintiff introduced the deed of Sutter to Hastings, dated November 30th, 1849, and two deeds of Sutter to McKinstry and others, dated respectively April 4th, 1849, and July 1st, 1850. The McDougal deed bears date June 19th, 1849. It was intended by the parties to the McDougal deed that the land thereby conveyed should be bounded on the south by the McKinstry tract—or, in the language of the record, “the tract of land held by McKinstry & Co.” The McKinstry deed of April 4th, 1849, was competent evidence, tending to prove the boundaries of the McKinstry tract; but the deed of July 1st, 1850, did not tend to prove what lands were held by McKinstry & Co. at the date of the McDougal deed—June 19th, 1849—nor what lands the parties to the McDougal deed then understood McKinstry & Co. to hold.

The deed to Hastings is subject to the like objection, as it was executed after the date of the deed to McKinstry, as well as the deed to McDougal. Whether those deeds would have been admissible, if coupled with other evidence, it is unnecessary to determine, but in our judgment they should not have been admitted in evidence at the time and under the circumstances shown in the record.

The point is presented that the Court erred in admitting in evidence several deeds, on the ground that they were not shown to' include the premises in controversy. It is difficult to conceive of a case in which that objection would be tenable, except when it appeared on the face of the deed that it did not include or relate to the premises in suit. When it does not so appear, the question is one of fact, to be determined upon the evidence. It is manifest that a party is not required to locate on the ground the calls of a deed, before the deed is admitted in evidence.

The defendant presents the point that the Court erred in admitting in evidence the decree in the case of Stevenson v. Hart, executrix, etc., on the ground that the Court had no jurisdiction to pronounce the decree; It does not appear from the decree (no other portion of the judgment-roll having been offered in evidence) that the Court did not have jurisdiction in that case. It is obvious that the District Courts may, in certain casés, have jurisdiction to order an executor to convey lands. The objection was not made in the Court below, and the point should not have been pre-. sented here.

Judgment and order reversed, and cause remanded for a new trial.