Barnard v. Blum

Maltbie, Presiding Judge.

The league of land in controversy is situated in Chambers county, and was granted by the Mexican government to John S. Roberts, who died in the year 1871, leaving as his heirs at law John F. and Lycurgus S. Roberts. The contest was between appellant Fred Barnard, who was plaintiff below, and L. & H. Blum et al. Barnard claimed, through power of attorney from John F. and Lycurgus S. Roberts, heirs of John S. Roberts, to Wharton Branch, and two deeds from Branch to himself. • Appellees claimed, at first, through John S. Roberts, and later also through deeds from John F. and Lycurgus S. Roberts to L. & H. Blum, made during the pendency of the suit, and after the deeds to Barnard had been recorded. A number of questions are presented in reference to the admissibility of the verbal declarations of John S. Roberts, tending to show that he had sold the land; and also evidence tending to show that Branch had notice of this, and other facts pointing in the same direction, at the time he accepted the power of attorney before mentioned — which it will not be necessary to consider, inasmuch as the district court, held that there had been no legal evidence adduced that Roberts had ever conveyed the land, thereby limiting the issues as to whether the title of appellant was superior to that 'of appellees, as acquired from John F. and Lycurgus S. Roberts. So much of the power of attorney from the Robertses to Branch as need be •considered is as follows: “Wharton Branch is hereby appointed our attorney in fact, and empowered to enter upon, sue for, take possession of, and to grant, sell and convey, all of our right, title and interest as heirs at law of John S. and Harriet Roberts, his deceased wife, in and to a league of land granted to said John S. Roberts, with full power to make all necessary and proper deeds of conveyance, and to receive and to receipt for the purchase money thereof, and generally to do and perform every act and thing that we could do if personally present.”

Branch testified, that the Robertses agreed that he should have half the land for his services in hunting up the claim, the existence of which they were ignorant of, authorized him to sell it, and agreed to wait for their part of the money until it was all settled, but restricted him from selling their interest at a less price than'five hundred dollars. That he sold the land to Barnard, he paying down for his, Branch’s, interest, and promising to pay five hundred dollars for the Roberts at the termination of the litigation, then contemplated with appellees. We do not think that the powers of attorney, “ read in the light of the testimony of Branch,” inhibited the sale of the land to Barnard on the terms stated. Neither was it necessary to the validity of the sale that the land should have been first reduced to possession. Nor would the fact that Branch attempted to insert a clause of warranty in the first deed, of itself, revoke the powers of attorney, but if the warranty was unauthorized by the powers, the warranty would be invalid, but the deed might still be effectual as a conveyance of the land. The principal question in the case arises from a charge of the court to the effect that the plaintiff F. Barnard, having declined to answer an interrogatory propounded to him by defendants, it must be taken as a confession of the facts stated in the interrogatory, and that the jury should take it as a fact proven, that the plaintiff had neither paid nor promised to pay anything for the land, that the deeds from Branch were a mere sham, and that the deed from John F. and Lycurgus S. Roberts to L. & H. Blum was superior to the plaintiffs, and to find for defendants. The interrogatory is as follows: “Is it not true, that you never paid a cent therefor (meaning the deeds), and is not the consideration thereof recited therein false?” To which on the eighteenth of August, 1883, as certified by the notary, Barnard answered: “I decline to answer this interrogatory as it is none of your business. The reason I decline to answer, is, you can not legally inquire into the consideration paid.” The deed .to the Blums was executed in February, 1884. Several months after the answer of Barnard to the foregoing interrogatory under the equity practice, a discovery could only be had as to such matters as were pertinent to the issue, and the party seeking the discovery was only entitled ito what was necessary to maintain his own title as for deeds under which he claimed. Hs was not entitled to have a discovery of the title of the party from whom he sought the discovery,” and it was a general rule that the bill should show such a case as rendered the discoveey material to the plaintiff in the bill to support or defend his suit. (Weeks on the Law of Depositions, paragraph 19; Id., 20, sec. 3; 2 Story’s Equity Jurisprudence, secs. 1489, 1490, p. 790, 791; Story’s Equity Pleading, paragraphs 317, 318.)

It is apparent that at the time that Barnard declined to answer the interrogatory it was no concern of appellees whether there was any consideration for the deed under which he was prosecuting his suit, they not having at that time obtained any conveyance of the interest of John F. and Lycurgus S. Roberts i-i the land, and the question as to whether the interrogatory should have been answered must be determined with reference to the title of the parties, as then existing. It is true that article 2243 of the Revised Statutes provides that “If the party interrogated refuses to answer, the officer executing the commission shall certify such refusal, and any interrogatory which the • party refuses to answer, or which he answers evasively, shall be taken as confessed;” but we are of opinion that this article has reference only to the failure to answer an interrogatory pertinent and relevant at the time when an answer is required. This statute was evidently enacted to obviate the trouble and expense of filing a bill of discovery in aid of suits already pending, but subject to the same rules that bills of discovery would be in respect to the pertinency of the matters inquired about. It was the right of appellant at the time he testified, to decline to answer the interrogatory, and there was error in the charge of the court on that subject. It was also the right of appellees as subsequent purchasers of the land from John F. and Lycurgus S. Roberts to show, without having first filed a sworn plea, to that effect, that there was no consideration for the deeds executed by Branch, as the agent of the said Roberts; the deeds not being pleaded, or necessary to be pleaded, were not within the rule prescribed in section 10, of article 1265, of Revised Statutes. The letters from Wharton Branch to John F. and Lycurgus Roberts being subsequent to the conveyance of the land by Branch to the plaintiff were not admissible in evidence in disparagement of his title.

On account of the errors indicated we think the judgment should be reversed and the cause remanded.

JReversed and remanded.

Opinion delivered January 31, 1888.