Sill v. Reese , 47 Cal. 294 ( 1874 )

By the Court, McKinstry, J.:

At the trial the plaintiff claimed to have proved a' grant of the lot in controversy, made in 1843 by Sanchez, Justice of the Peace, to De Haro; and a subsequent transfer in the same year of the rights of De Haro to Daniel Sill, Sr., plaintiff’s ancestor.

The defendants introduced evidence tending to show a sale of the ■ premises by Sill, Sr., to George Davis; the mairing of a new grant in 1844 by Hinckley, Alcalde, to De Haro, and a conveyance by De Haro to Davis—all with the consent of Sill, Sr., who received the purchase price of tho lot from Davis. Defendants gave in evidence the original petition of De Haro, on which the concession last mentioned was made, the original of the grant by Hinckley, and the original instrument executed by De Haro—and indorsed on the grant—which transferred to George Davis the title, if any, thus acquired.

These writings were upon one sheet of paper and on the back thereof was mitten a duplicate original of the bill of sale about to be mentioned. To the introduction of these original documents no objection was made by the plaintiff.

The defendants having introduced evidence tending to prove that one John Finch had derived title from George Davis, offered an instrument, executed by Finch, which is spoken of in the record as a bill of sale. .This instrument was indorsed on a copy of the De Haro petition, the Hinckley grant, and the transfer from De Hnro to Davis. The offer was accompanied by testimony tending to show that the copy, and the bill of sale, with the-exception of Finch’s signature, were in the handwriting of Hinckley. To the introduction of the copy, and of the duplicate bill of sale indorsed, the plaintiff objected. The action of the Court below, in overruling this objection, is assigned as error. The bill of sale contains no description of the premises, except that in the copy of the petition. It recites: “I, the undersigned, being the legal owner of the lot mentioned in this concession,” etc., and proceeds to declare, “I have sold to John Thompson one half,” etc. The preceding copy of the papers referred to, the original of which constituted the evidence of a “title by concession” to a particular lot, was therefore necessary to identify the land sold by Finch to Thompson; it became a part of the instrument executed by the former, and rendered that instrument effectual.

The defendants claimed under Thompson, and were entitled to show that the bill of sale was delivered to him when it was executed. This was proven prima facie, when the defendants produced it at the trial; but the like consequence did not follow from the production of the original papers. At the time of these transactions no registry law was in operation, and it was necessary and proper for each individual proprietor to keep within his own control, all his muniments of title. We must presume, in the absence of evidence to the contrary, that the parties adopted the natural and reasonable course accordant with the existing law; that Finch retained the originals as evidence of his own right, and delivered the copies (forming a portion of the bill of sale) to Thompson, to whom he sold one half the property; and that Thompson, who afterwards claimed the •whole lot as survivor of Finch under an agreement contemporaneous with the bill of sale, became possessed of the original petition and grant after the death of Finch. The bill of sale, including the copy, therefore, was not immaterial or incompetent as evidence.

The bill of sale is dated April 26th, 1845; Hinckley died in 1846. The defendants proved that the copy of the grant and bill of sale attached were in the handwriting of Hinckley; and, when they were offered in evidence, declared that they were offered as evidence tending to establish the existence of the originals during the life-time of Hinckley. We are not prepared to say that counsel is bound by the declaration of a limited purpose, so as to be estopped, after the introduction of evidence, from drawing from it other deductions than that suggested by the terms of the offer. Certainly he should not be, unless injustice has been done to the opposite party by permitting such new inferences; and this cannot be made out by mere assumption or conjecture, unsupported by any fact appearing in the record. Indeed, counsel has no power to limit the effect of evidence; it would hardly be contended that the opposite party cannot use it in any legitimate manner before the jury. The-statement of a “purpose” is only a reason, addressed to the Court, why the particular evidence should be admitted; the effect of the evidence is to be limited, in proper cases, in the charge to the jury. Besides, the making of the copies and the introduction of them into the bill of sale by Hinckley, when he was called on to prepare that instrument, was in the nature of a contemporaneous act; and the admission of the proof of that act may be vindicated by' similar reasoning to that hereinafter employed with respect to the account-book tendered in evidence.

The next error assigned is the refusal of the District Court to strike out the answer of the witness Eose, to the question found at folio 212 of the transcript. The answer was responsive to the question, and counsel did not specify the points on which they rested the motion. In such cases the moving party should specify his.objecfcion to the answer, with the like particularity as is required in pointing out an objection to a question. The same reasons render this proper.

Evidence having been given on the part of the plaintiff, that Finch, while in possession of the disputed premises, declared that he was possessed only as the agent of Sill, senior; the defendants, by way of rebuttal, endeavored to prove that Finch erected upon the premises a building of great value as compared with the then value of the lot. To do this, defendants offered in evidence, among other things, the books of John C. Davis & Co., containing an account against Finch, which was in the handwriting of John C. Davis, who died in 1848. This was accompanied by testimony tending to show that the articles charged went into the building on the lot occupied by Finch, and that ifc was agreed between Finch, John 0. Davis & Co., and Davis, that the articles should be supplied to Finch by John C. Davis & Co., and should be paid for by transfer to the firm of an existing demand in favor of Finch against Davis. The plaintiff objected to the entries in the books on the ground that the evidence offered was hearsay and incompetent. The Court overruled the objection, and this is assigned as error.

The gist of the argument against the admissibility of the entries in the books seems to be that they were not against, but for the interest of the party who made them. This does not render them necessarily incompetent. The account was a corroborative circumstance; one of. a series of facts tending to prove that the building was erected by Finch at his own expense. From the transcript it appears that other evidence was given to the point that Davis & Co. did, in the year 1844, provide the materials and build and furnish for Finch a blacksmith shop, etc., on the lot in controversy. There are two kinds of admissible entries made by third parties; one consisting of entries against the party’s interest, deriving their admissibility from this circumstance alone. The value of the second class is that it was contemporaneous with the principal fact, forming a link in the chain of events, and being part of the res gestee. It is not merely the declaration of the party, but it is a verbal contemporaneous act,' belonging, not necessarily, indeed, but ordinarily and naturally, to the principal thing. (1 Green. Ev. Sec. 120.) This distinction was taken and clearly expounded by Mr. Justice Parke, in Doe d. Pattershall v. Turford, 3 B. & Ad. 890. That learned Judge said: “ Counsel for defendant has contended that such an entry is to be received in two classes of cases only-—first, when it is against the interest of a deceased party who made it; and secondly, when it is one of a chain or combination of facts, and the proof of one raises the presumption that another has taken place. I agree in the rule as laid down, but I think that in the second case a necessary and invariable connection of facts is not required. It is enough if one fact is ordinarily and usually connected with another.” The views of Mr. Justice Parke, in Doe v. Turford, have been cited and approved in many English and American cases; and, upon principle, the distinction there taken should be maintained. In the present ease, evidence having been alreadyintroduced tending to establish the fact that the house was built and the materials furnished by John C. Davis & Go., the contemporaneous charges in their books constitute evidence of some force. It was certainly the “ ordinary and natural,” or usual course, for that firm to charge the materials to the person to whom they are alleged to have been furnished. There was no error in admitting the account; and we think the principle just considered also justified the admission of the charges against Gorham H. Nye, as well as those contained in the books of Nathan Spear.

At the trial below, one B. 0. Hopkins was called as a witness on behalf of the defendants, who (having testified that, for fifteen years, he had been the custodian of the Mexican archives in California, in the office of the Surveyor-General; and further testified as to his familiarity with the documents composing such archives, and particularly with the signature of Francisco Be Haro, from having consulted several hundred official documents therein, with the signature- of said Be Haro thereto as a Mexico-California official, etc.) was asked: Whether, in his judgment and opinion, he considered the said signature of Be Haro to said petition and grant to be genuine ? ”

The question presented by the foregoing is not what writings may properly be employed by an expert, on the witness stand, as the basis of his opinion that a particular writing is or is not genuine. In all such cases, the opinion of the witness is based upon a comparison—within the narrower meaning of the word—of the contested signature with others proven or admitted to be genuine, and introduced in evidence. But if a witness have a proper knowledge of the handwriting of the person' whose writing is in dispute, he may declare his belief in regard to the genuineness of the particular signature in question. In a broad sense, all evidence of handwriting, except where the witness saw the document written, is comparison. But a distinction is recognized between an opinion based upon the juxtaposition, in the presence of the jury, of the disputed and other signatures, and a belief engendered of the witnesses’ previous knowledge of the party’s handwriting; the conscious comparison of the writing in dispute with an exemplar in his own mind—the product of such previous knowledge. In the former case, the expert is required promptly to exercise his skill", derived from experience and study; in the latter, the ordinary witness recalls the prototype, and without being able perhaps to analyze critically the grounds of his own faith, feels that he knows the handwriting.

There are two modes of acquiring this knowledge, each of which is universally admitted to be sufficient to enable a witness to testify on the subject. The first is from having seen the party write. The second mode is from having seen letters, bills, or other documents purporting to be in the handwriting of the party; evidence of- the genuineness of such writings and of the identity of the party being, of course, added aliunde. (1 Greenl. Ev., Sec. 577.)

“In both these cases,” adds Mr. Greenleaf, “the witness acquires his knowledge by his own observation of facts, occurring under his own eye, and, which is especially to be remarked, without having regard to any particular person, case or document.”

If it can be assumed that the Mexican archives in the - Surveyor-General’s office are genuine, the man who has read these archives and familiarized himself with the official signatures, several hundred in number, of the person whose signature is the subject of inquiry, has certainly as much knowledge of that person’s handwriting as one who has received “letters or bills” purporting to be in the handwriting of a party whom he has never seen. (See in this connection, Turnipseed v. Hawkins, 1 McCord, 279.) The archives referred to are public documents and records guarded by the former Government in California, as evidence. of the facts to which they relate, and which the Secretary of State was directed to preserve in his department. (Acts of 1851, p. 443.) They were afterwards transferred to the care of the Surveyor-General of the United States. (Concurrent resolution, Laws of 1858, p. 270.) These documents and records have remained continuously in official custody, and although it is not impossible that in some instances forged papers have been surreptiously or corruptly placed among them, the- presumption that officers have done their duty in preventing such frauds, applies equally to the public functionaries of Mexico, and to those of our own Government. It was necessary to prove the validity of such documents in the archives where the object was to show title derived by grant from the former Government before such grants were confirmed; but there can be little danger in assuming the genuineness of the signatures from which the witness acquired his knowledge for a collateral purpose like that under consideration. It may happen that these archives are the only source of information.

In the progress of the trial, the plaintiff introduced evidence tending to prove that Daniel Sill, senior, during the whole of the year 184G, carried on the business of keeping a bowling alley on the lot in controversy; that he alone occupied the lot, and that Finch was his hired hand or servant. The defendants put in evidence tending to show that Finch & Thompson built the bowling alley as their own, and for their own use. Further, after proving that the signatures were -genuine, the defendants offered writings in • Spanish, on one sheet, which were:

1. A petition to the Justice of the Peace by Finch & Thompson, dated June, 1846, which alleged, “we have commenced and are about to finish a bowling alley,” etc., and prayed for a license to conduct the said business.

2. An act or order of the Justice to the effect that “in consideration of the circumstances recommending the petitioners ” he had caused to appear before him three villagers (naming them,) whom he had examined, as immediate neighbors, if they approved of the construction which was being made “in the house of Señores Juan Finch and John Thompson,” dr if the same would incommode them, to which they responded they would not be molested thereby, and “for their security they signed the same with the present Judge; the interested parties being subject to police regulations.” And to this end, ‘that;the beneficiaries may have the proper security, this document is returned to them,” etc.

We do not think the objections to this paper were well taken. The act of the Justice, Hoe, was the record of an open investigation, judicial in its character. It was not conclusive as a judgment against plaintiff’s ancestor; but it was submitted to the jury whether such a transaction, in the hamlet of Yerba Buena, and in respect to the very property and business which it is alleged Sill, Sr. then occupied exclusively, and was conducting, was not known to him; and, if so, whether his silence, or failure to oppose the license to the others, did not tend-to disprove the assertion that Finch was merely his servant.

In the same year Alcalde Bartlett issued his proclamation (which has become historical,) in pursuance of which Finch and Thompson presented their title papers, and a minute of the same was made by the Alcalde in his “Index Book.’’ This boob, and the circumstances under which the entries were made in it, also tended to show notice to Sill, senior, of an open and notorious adverse claim to the lot, on which, by plaintiff’s theory, Finch was laboring as a “hired hand.”

The defendant introduced evidence tending to prove that from 1850 Sill, senior, never asserted his title to the persons in possession of the lot under Thompson. In rebuttal, plaintiff offered to prove that, on one occasion, the said Sill advised with an army officer in respect to the mode of recovering the property; the conversation never having been communicated to the parties in possession. The proffered evidence was properly rejected.

As we have seen, when the petition of De Haro, of March, 1844, was offered, it was not objected to. When, however, the counsel for plaintiff came to sum up the case, “he insisted and urged to the jury that the word ‘plaza’ in said petition, was originally playa (beach,) and afterwards altered to plaza, and that such alteration was perceptible to their own ocular inspection.” The Court permitted the jury “to inspect and examine said petition, and to judge for themselves.” This.,was equivalent to the ninth instruction subsequently asked by the plaintiff; and there was no substantial error in refusing the instruction.

The plaintiff requested the Court to charge-the jury: “If the jury find that any material word in said descriptive portion of said petition has been altered since it was first written, and that no memorandum or note of such alteration was made at the foot of either the petition or concession, before the signature of the petitioner, or magistrate, or of the subscribing witnesses, was written, then they will find such alteration to be null and void, and that the word so altered must read at this time as if no alteration had been made, and as the same was originally written.”

If we assume (what hardly appears in the transcript) that the petition was altered apparently after it was signed and the grant made, and that the burden was cast upon the defendants of showing “that the alteration was made with the consent of the parties affected by it, or otherwise properly or innocently made,” the question still remains: "Were there any facts or circumstances in evidence tending to show that the alteration was made with such consent, or innocently? If there were, the instruction was properly refused, since, by its terms, it excludes all consideration of such evidence.

The transcript reads:

“ The defendants then introduced testimony tending to ’ show that, on or before March 1st, 1844, the said Daniel Sill, ancestor of the plaintiff, as aforesaid, sold all his interest in the said lot 31 to one George Davis, for the sum of fifty dollars, then and there paid by the said George Davis to the said Daniel Sill, and by the said Daniel Sill accepted in that behalf; and that said Sill declared to said George , Davis, at the same time, that the title to said lot was not vested in him, and that he had no paper title to the same, but that the title remained in said Francisco De Haro, and that he would cause said De Haro to make out the proper transfer of the title to said lot to said George Davis; and that therefore the said George Davis and Daniel Sill, together with one Guillermo (William) S. Hinckley, who was then and there First Alcalde of the pueblo of San Francisco, or Yerba Buena, went to the Mission of Dolores, where the said Francisco De Haro resided, for the purpose of having a transfer of said lot executed, in pursuance of said sale by him to said George Davis; and that thereupon, by the advice of said Hinckley, Alcalde as aforesaid, and with the assent of the said Daniel Sill, ancestor as aforesaid, and with a view to extend the time for complying with the conditions of said grant of said lot, made in the year 1843, by said Francisco Sanchez, Justice of the Peace, as aforesaid, the said Francisco De Haro petitioned anew for a concession of said lot; and that the same was thereafter conceded to him by said Hinckley, on March 3d, 1844, being, at the time of said last-mentioned concession, Alcalde as aforesaid, and afterwards granted by said Francisco De Haro to the said George Davis; said last-mentioned petition, concession, and grant, being in writing and in the Spanish language,” etc.

This evidence certainly tended to show that it was the intention of all parties that the lot in controversy (No. 31) should be granted anew to De Haro, and that if the alteration was made after the petition and grant were executed, it was made to conform the papers to the intention of all concerned.

The exception to the oral charge of the Court, on the return of the jury for further instructions, was general. The party excepting should specifically point his objection. (Hicks v. Coleman, 25 Cal. p. 122; St. John v. Kidd, 26 Cal. p. 263.) The Court should have an opportunity to modify or correct any form of expression inadvertently used in its oral charge.

Another exception is based on the action of the District Court in overruling the plaintiff’s objection to the “ Book A of Original Grants.” The book was admissible as primary evidence. (Donner v. Palmer, 31 Cal. p. 500.) It therefore tended to prove that other grants had been made than those noted in “ Blotter B.”

We do not think that if the eleventh instruction, asked by plaintiff, had been given, it could have influenced the verdict of the jury. The plaintiff’s twenty-fourth instruction does not properly state the law.

Judgment and order denying a new trial affirmed.

Mr. .Justice Bhodes did not express an opinion.