Satterlee v. Bliss

This is an action to recover land in San Francisco. Both parties rely on prior possession in themselves and their grantors, and on title claimed to have been derived under the Van Hess Ordinance.

There is nothing in appellants’ first point. The deed from Satterlee to Reese was certainly admissible, and the deed from Stevenson to Howard ivas referred to in that deed, and was only put in evidence as explanatory of it.

The defendants were strangers to the deed from Stevenson to Reese, and were not precluded from showing the purpose for which it was executed. (1 Greenl. Ev., Sec. 279; Franklin v. Dorland, 28 Cal. 178 .) But the refusal to permit the

The next point is, that the papers in the matter of Beese’s estate were improperly admitted for want of the proper stamp on the probate of the will. The clause of Schedule “B” of Stamp Duties involved is as follows: “Probate of wills, or letters of administration, when the estate and effects for and in respect of which such probate or letters of administration are applied for shall be sworn or declared not to exceed the value of two thousand five hundred dollars, fifty cents.”

It is unnecessary, in the view we take of the point in respect to the stamping of such documents, to ascertain with exactness the sense in which the phrase “probate of wills” is employed in the Act. The evident purpose of the Act is, to impose stamp duties upon estates of deceased persons, upon which letters testamentary or of administration shall be granted. It is not a tax upon either class of documents as such, as is evident from the fact that the duty varies with the value of the estate. It can make no substantial difference in the result whether the stamp is affixed to the will, upon its being admitted to probate, or to the certificate of proof thereof attached, or to .the letters testamentary, as they are parts of one judicial proceeding; and the object of the Act—revenue—is attained, if either document is duly stamped. We concur with the Court below in holding that the presumption, when the question arises in a collateral proceeding, is, that the Probate Court passed upon the question of the value of the estate on evidence, and that the District Court has no power to review the action of the Probate Court. The sufficiency of the stamp could not be tested

Another point is, that the testimony of Pierson was inadmissible, on the ground that the matters to which he testified came to his knowledge through the relationship of client and attorney, and were within the rule protecting privileged communications. It is not clear that his testimony goes beyond stating by whom he was employed, and testimony to that extent, at least, is admissible. (Chirac v. Rheinicker, 11 Wheat. 280 ; 1 Greenl. Ev., Sec. 245; Gower v. Emery, 18 Maine, 82; Brown v. Payson, 6 N. H. 448 ; Beckwith v. Benner, 6 Car. & P. 681.) But concede that it did, this was not the ground of objection in the Court below. The objection and motion to strike out there were on the ground that it was “ irrelevant and immaterial.” The testimony was certainly relevant and material, and it is too late to raise, for the first time, the objection on the ground of privilege. The same point is made with reference to the witness Tompkins. In Chirac v. Bheinicker, supra, the question objected to on the-ground that it sought a disclosure of matters coming to the knowledge of witness in professional confidence, was: “Were you retained at anytime as attorney or counsel to conduct the ejectment suit above mentioned, on the part of the defendant, for his benefit, as landlord of those premises ? ” The Court held that part of the question, “«s landlord of those premises,” (the italics are the Court’s,) objectionable. The Court say: “ It seeks a disclosure of the title and claim set tip by Rheinicker to his counsel for the purpose of conducting the defense of the suit.” Ro remark is made on that

In view of this rule of construction, and of the rule established by the authorities cited, let us examine the testimony of Tompkins. If there is anything in the testimony of

But there is another view fatal to the point. There was no objection or exception taken to any part of the testimony that can possibly be claimed to be objectionable in such manner as to be available. Witness testified: “I am an attorney; I have been practicing in this city and county several years; I know David Mahoney, George D. Bliss, and John O’Connell, defendants in this suit.” Defendants’ counsel objected to this testimony, as immaterial and irrelevant, and as requiring of the witness what he knows by no means except through his professional relation with his client. The Court overruled the objection. Defendants’ counsel duly excepted. So says the record. There is no other objection of exception stated in the record. What was it that the Court ruled upon? We have given all that the witness had then stated, and no further question appears to have been then asked. It had not even appeared that the relation of client and attorney had existed. And counsel “objected to this testimony.” The Court certainly ruled on the matter before it, and nothing more. The several pages of testimony subsequently given was not before it, either by the statement of the witness, or by a question propounded to the witness, or by any offer to prove it, or in any shape whatever. Neither the Court nor defendants could possibly

There was no error in excluding the testimony of defendant Bliss. A party, by the express provisions of the statute, is not permitted to testify “ where the adverse. party, or the party for whose immediate benefit the action is prosecuted or defended, is the representative of a deceased person, when the facts to be proved transpired before the death of such deceased person.” (Prac. Act, Sec. 893.) The statute covers all cases coming within its general terms, .and makes no distinctions depending on privity or connection between the-parties. Satterlee was the administrator and representative of Reese, deceased, and the matters to which defendant Bliss, was offered as a witness transpired before the death of Reese. There is nothing to take the case out of the statute, as construed in Davis v. Davis, 26 Cal. 32 , and Kisling v. Shaw, 33 Cal. 446 .

There was no error in denying defendants’ motion for á nonsuit. If the fence built in 1860 was, as some of the witnesses say, constructed of posts and boards, and three boards or two boards and a cap high, we cannot say that it was not a substantial fence, and that this, in connection with the house subsequently built by Ensign within the inclosure, and the occupancy of the same for the purpose of maintaining the possession and exercising .control and dominion over the land thus inclosed and claimed, did not constitute an actual possession within the meaning of the Van Hess Ordinance. The testimony of the witnesses tends to show that this was, for that day and location, an unusually substantial fence. Whether the fence was maintained and kept in repair till the erection and occupation of the house and premises by

Again, upon the testimony there was ample cause for submitting the case to the jury upon another ground, having no relation to the point last discussed. It appears that these defendants were before turned out of possession under the writ issued in the case of Reese v. Mahoney et al., and after-wards re-entered; that about the time of the issuing of the writ in that case, they received a conveyance of the premises from the Mahoneys; and in connection with this testimony there was other testimony tending strongly to show that at the time of the commencement of the suit of Reese v. Mahoney et al. these defendants were on the premises with the Mahoneys in the character of servants, employés, and subor-. dinates of the Mahoneys only; and the testimony on this point is of such a character that, if the jury had specifically so found the fact to be, we could not disturb the verdict. There is testimony to the contrary, it is true, tending to show that they were there on their own account, claiming in their own right; but it must be confessed, that, if such was really the state of the case, this testimony is not so clear in favor of the defendants as we should expect to find it. If they were there in their own right for a long time doing a very extensive wholesale butchering business on their own account, it would seem that the means of proving the fact beyond the possibility of doubt must be in their power. They would certainly be in a better position to establish this hypothesis than the plaintiff:' the contrary one. But, however this may be, the evidence is such that, had the jury found either way on this point, under the long established rule of appellate Courts upon the subject of conflicting testimony, we could not

The judgment in the case of Reese v. Mahoney et al. is binding and conclusive upon the Mahoneys, and all parties standing in privity with them, and estops them from denying that Reese was entitled, as against them, to the possession of the premises at the time of the rendition of the judgment. (Ca perton v. Schmidt, 26 Cal. 491 ; Marshall v. Shafter, 32 Cal. 176 .) Privies, within the meaning of the rule, are those who entered under, or acquired an interest in, the premises from or through, or entered without title in collusion with the Mahoneys subsequent to the commencement of the action. The deed from the Mahoneys to the defendants, made since the commencement of the action of Reese v. Mahoney, establishes such privity, and authorized the introduction of the judgment roll in that action by way of estoppel as against the title so acquired. There was testimony, also, as we have before seen, tending strongly to show, that at the time of the commencement of that action the defendants were actually on the land, in employment as servants, employés, and subordinates of the Mahoneys, and not in their own right. If they were there in the employment of the Mahoneys in the character of agents, servants,

In the charge given by the Court, of its own motion, the following passage occurs: “If you are satisfied from the evidence that the defendants Bliss and O’Connell, or any of the defendants in this action, were, at the time of the commencement of this action (Reese v. Mahoney) in the Twelfth Judicial District, in the possession of the property in controversy, under David and Dennis Mahoney, as tenants by their permission, independent of 'any other right or title, or procurement, then the defendants in this action, or such of them

This error having been committed, it becomes necessary to ascertain whether it could have in any way affected the judgment unfavorably to appellants. If not, then it is without consequence, and is no ground for disturbing the verdict and judgment. We have carefully read the whole record of upwards of sixteen hundred printed folios from beginningto end, without finding any evidence tending to prove that the defendants, either before or since the commencement of the action of Reese v. Mahoney et al., held, or claimed to hold, as tenants of the Mahoneys. Such a position is not in any sense the theory of the defense. They set up no such claim in their pleadings, and, so far as the record shows, made no such claim at the trial; and they, in fact, make none now. In their answer, they first deny generally the allegations of the complaint, then, in various forms, set up the Statute of Limitations; and then, in a separate answer, affirmatively allege seizin in fee in themselves, and not a tenancy under the Mahoneys. The claim on the part of the plaintiff was, and the testimony tended strongly to prove, that the defendants in the casé of Reese v. Mahoney et al., were the parties, and the only parties in possession at the time of the commencement of that action, and that all other parties on the premises, including the present defendants, were subordinate to the Mahoneys, in their employment in the capacity of servants, employés, etc., and not as tenants or as parties having any interest of their own. On the part of the defendants, the claim was, and the evidence tended to show, that they were there not as servants and employés of the Mahoneys, but in their own right, claiming for themselves, and having no connection whatever with the Mahoneys. There was no claim on their part that they were there as tenants of the Mahoneys, and we find no testimony tending in any degree to show that condition of things. Appellants’ counsel do not point out any such testimony, or now claim, in their briefs, that there was any, or that they ever pretended to oc

It has been suggested, also, that if defendants were tenants of the Mahoneys at the commencement of the former action, this portion of the charge, because of that relation, would preclude them from relying in this action on any independent

The only other point made in appellants’ briefs, is, the general one, covering a number of instructions, that the Court erred in not granting the several instructions asked by defendants, stating that they “were correct and pertinent,” and this is all there is said about them.

. Without taking any more trouble to discuss the points than counsel have, we think they were properly refused. Some are plainly not pertinent, and others, at least, require qualification. In the brief in reply, however, appellants’ counsel do make some attempt to maintain the correctness of the first instruction asked by them, and refused by the Court. But it is perfectly clear that this instruction could not have been properly given in view of the evidence. It entirely ignores the hypothesis as to the defendants being on the land with the Mahoneys, as their servants, at the time of the commencement of the suit of JReese v. Mahoney, and as to their acquiring possession and an interest' in privity with the Mahoneys pendente lite, without any other claim or title. On this hypothesis there was no necessity for suing them, for they would be concluded by the judgment, and have to go

There was nothing in the charge of the Court, or instructions given, extending the estoppel of the judgment in Reese v. Mahoney to any title or right disclosed by the evidence, not determined by that action, or withdrawing from the consideration of the jury any right or title, which the evidence tended to show, held by defendants in their own right, at the time of the commencement of the suit of Reese v. Mahoney, or any right or title subsequently acquired, not concluded by that action.

Respondent presents certain instructions having an important bearing on the rights of the parties, which are shown by affidavit to have been given to the jury at the request of appellants’ counsel, but which were never introduced into the statement on motion for new trial, and moves for an order directing the said instructions to be added to the statement. We have often held that it is no part of the province of this Court to amend the records of the Court below. The record in this Court is a transcript of the record of the Court below, and we decide the case upon the same record considered by the Court below. The Court below decided the motion for new trial upon the statement as it is now presented. If we should amend the statement by adding these instructions, we-should decide it upon a different record, and we should not, be reviewing the action of the Court below, but act upon another and different case. If we could amend- the statement in this particular, we could in any other. But we have no means of correcting the records of other Courts. We have no authority to say what their records are or shall be. We can only act upon a transcript of the record as it exists in the lower Court, duly authenticated in the mode prescribed by law. This we have repeatedly held. (Bonds v. Hickman, 29 Cal. 461 ; Boston v. Haynes, 31 Cal. 107 ; Buck-

In making up a statement on .motion for new trial, the respondent should see that everything favorable to his side, bearing upon the points specified, is supplied by amendment if omitted by the party proposing the statement. And it sometimes happens that instructions given, upon which no question arises, are important as obviating the objections taken in respect to others specified as grounds of error in the statement. In such case it is important to the party interested to see that they are introduced into the statement.

We find nothing in the record to justify a reversal of the judgment in this case.

Judgment and order denying a new trial affirmed.

Mr. Justice Rhodes expressed no opinion.