Summary
In King v. Randlett, 33 Cal. 318, the court, after deciding that the party there claiming the benefit of the statute of limitations, did not enter under a deed or conveyance, but under an instrument only purporting to assign one’s right, title, and interest in and to a constable’s deed, added: ‘Whether, had Garrison conveyed to the defendant, the judgment and constable’s deed would have been admissible as showing color of title in aid of defendant’s plea, it is therefore unnecessary to determine.
Summary of this case from Packard v. JohnsonOpinion
Appeal from the District Court, Fourteenth Judicial District, Placer County.
This was an action to recover the possession of two and one half undivided sixteenth shares of the Independent Tunnel Mining Claims in Placer County. The plaintiff, in the complaint, alleged title in himself, and an ouster by the defendant. The defendant, in answer, denied all the averments of the complaint, except the fact of his (defendant's) possession, alleged title in himself, and pleaded the Statute of Limitations. The cause was tried before the Court with a jury. The plaintiff, in the statement of his cause at the commencement of the trial, stated his title to the demanded premises to be derived by purchase by deed or bill of sale. The plaintiff stated, as a witness in his own behalf, that the deed or bill of sale was lost, and, under the objection and exception of the defendant, gave testimony of its contents.
The testimony of the witness, Deiner, was offered to show title to the demanded property in the plaintiff; the defendant objected to its introduction, on the grounds of incompetency and irrelevancy, and excepted to its admission.
The defendant deraigned title under a purchase of the demanded property by Garrison at a judicial sale, and duly excepted to the exclusion of the record of A. B. Scott, J. P., when offered to prove title in him to the demanded property; also to the judgment, the deed to Garrison, and the assignment of the deed to the plaintiff, to show color of title in plaintiff in aid of his plea of the Statute of Limitations. The plaintiff had judgment, and the defendant appealed. The case came up on the judgment roll, containing bills of exceptions taken by the parties respectively.
COUNSEL:
C. A. Tuttle, for Appellant, argued against the sufficiency of proof of the loss of plaintiff's deed to let in parol evidence of its contents, and for the admissibility of the judgment roll from the Justice's Court of A. B. Scott, and the Constable's deed, with its assignment to plaintiff, for the purposes--first, of showing title in plaintiff; and, second, to show color of title in plaintiff; and on the last point cited Kimball v. Lohmas , 31 Cal. 154.
Jo Hamilton, and W. H. Bullock, for Respondent, argued to the contrary; and upon thelast point cited 30 Cal. 202; Jackson v. Woodruff, 1 Cow. 286; Livingston v. Peru Iron Co., 9 Wend. 511.
JUDGES: Sanderson, J.
OPINION
SANDERSON, Judge
The plaintiff having obtained his alleged interest in the Independent Tunnel Company's claim by purchase, which purchase was evidenced by a deed or bill of sale, was bound to produce his deed or bill of sale for the purpose of proving his title--that being the best evidence--or prove its loss for the purpose of laying a foundation for the introduction of secondary evidence as to its contents. (Patterson v. Keystone Mining Company , 30 Cal. 365.) The evidence of the loss was insufficient. It showed that in all probability the bill of sale was left in plaintiff's store at Yorkville at the time the plaintiff sold out and delivered possession of the store and its contents to his nephew. His nephew, at the time of the trial, was in the county and in reach of the process of the Court, yet he was neither called as a witness as to what had become of the bill of sale, nor does it appear that he was ever questioned by the plaintiff touching the missing document. It is true that the plaintiff searched the store about a year after the nephew took possession, but that was not sufficient. Under the circumstances detailed by the plaintiff, which are very similar to those presented in the case just cited, inquiry should have been made of the nephew for the missing document in order to sufficiently establish its loss. It does not appear that any search was made for the purpose of this trial.
In view of the fact that the plaintiff acquired his interest by purchase, as stated by his counsel in opening the case to the jury, and not by virtue of his being one of the original members of the company who located the claim, we are at a loss to perceive how the testimony of the witness Deiner as to the fact that the plaintiff had acted as a member of the company, or of the plaintiff himself as to the payment of assessments, or of the books of the company showing that the plaintiff had acted and been received as a member of the company, can be regarded as competent and relevant. Undoubtedly this testimony would have been competent and relevant had the plaintiff claimed title as an original member of the company, for it would have tended to prove that he was a member of the company, and therefore that he held an interest in the claim by virtue of the company's location. But in view of his admission that he had acquired his interest by purchase from some one or more of the original locators, which admission does not seem to have been afterwards withdrawn, we think he was bound to make title by proof of his purchase--either by the production of his deed or bill of sale, if he had one, or by proof of a verbal sale and delivery of possession, if the purchase was made prior to the passage of the Act of April 13th, 1860. (Statutes, p. 175; Patterson v. Keystone Mining Company , 30 Cal. 363; Goller v. Fett , 30 Cal. 481.)
The Court did not err in excluding the record from the Court of A. B. Scott, Justice of the Peace for Township No. 5, as evidence of the defendant's title. While the statute, in cases where two or more persons are associated in any business and transact such business under a common name, allows suit to be brought against them by such company name, it does not allow suit to be brought against them by a company name which is not the name under which they transact their business. The statute is in derogation of the common law, and must be strictly construed. As appears upon the face of the record, the action was commenced, not against the Independent Tunnel Company, but against the Independent Company, which is certainly a different name. True, the Justice addressed the summons to the Independent Tunnel Company, but this he had no right to do. On the contrary, he should have followed the style given in the complaint, or its substitute, the account which had been filed as a complaint and which was against the Independent Company. (Lamping v. Hyatt , 27 Cal. 102.) The return shows that the summons was served on Randall, a member of the Independent Company, and not of the Independent Tunnel Company. This was no service upon the latter company. True, the Court entered judgment against the Independent Tunnel Company, but this the Court had no power to do, for the judgment was by default. (Lamping v. Hyatt, supra .) Had the company appeared and pleaded the misnomer in abatement, if it was a misnomer, or waived it by not pleading it, the result might have been different. But as it is, the record fails to show either an action against or a service upon the Independent Tunnel Company, and the judgment was therefore utterly null and void. (Mayo v. Ah Loy , 32 Cal. 477.) Nothing can be presumed in favor of the jurisdiction of the Court. Being an inferior Court, its jurisdiction must be made to appear affirmatively. The defendant was bound to show that the Court had jurisdiction. This the record offered did not prove, but quite the contrary.
Nor did the Court err in excluding the judgment, the Constable's deed to Garrison, and the assignment of the Constable's deed by Garrison to the defendant, when offered as tending to show color of title under the statute in relation to adverse possession. The instrument from Garrison to the defendant was not a deed of the mining claim, but merely an assignment of " his right, title and interest in and to" the Constable's deed, and not to the land therein described. Title passes by deed and not by assignment of the deed to the assignee. Whether, had Garrison conveyed to the defendant, the judgment and Constable's deed in connection with such conveyance would have been admissible as showing color of title in aid of the defendant's plea of the Statute of Limitations, it is therefore unnecessary to determine. But upon this point see Jackson v. Woodruff, 1 Cow. 286, and Gilbert v. Peru Iron Company, 7 Wend. 511.
Judgment reversed and a new trial ordered.