Paxson v. Brown

• Decision Date: 07 May 1894
• Docket Number: 261.
• Parties: PAXSON et al. v. BROWN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

61 F. 874

PAXSON et al. v. BROWN et al.

No. 261.

United States Court of Appeals, Eighth Circuit.

May 7, 1894

December 11, 1888, J. Brown filed a bill in the court below in which he alleged that he was the owner of certain unoccupied lands in St. Francis county, Ark.; that he derived his title from Barnett Graham, through a general assignment for the benefit of his creditors made by William G. Lane to Frederick N Lawrence and L. M. Wiley, March 4, 1861; and that the appellants were making unfounded claims to own the same land and had recorded certain deeds thereof, which constituted clouds upon the complainant's title, and he prayed that the title to these lands might be quieted in him, and the clouds removed. The appellants answered that the complainant Brown, was not the owner of these lands; that they were; and that they derived their title from the heirs of Barnett Graham and from the heirs of William G. Lane; and prayed that the title to the lands be quieted in them, and that the deeds under which the complainant claimed be adjudged to be clouds on their title and removed. The complainant, Brown, died, and this suit was continued in the name of the appellees, his widow and heirs at law.

The appellees took the depositions of Frederick N. Lawrence, the sole surviving assignee of William G. Lane, and of Henry Vanderzee, who purchased these lands from the assignee. From these depositions it appeared that, while Barnett Graham had conveyed the lands to Lane, they were purchased and paid for by a copartnership styled 'William G. Lane & Co.,' of which he was a member; that the title was taken in his name for them, as a matter of convenience; that William G. Lane &amp Co. made a voluntary assignment for the benefit of their creditors to the same assignees as did William G. Lane, and on the same day; that the assignment of William G. Lane & Co. purported to convey these lands to the assignees, while that of William G. Lane did not; and that Henry Vanderzee, through whom the appellees claim title, purchased them of Frederick N. Lawrence, as sole surviving assignee of William G. Lane & Co., and not as assignee of William G. Lane, but, through abundance of caution, took a deed from him as assignee of the firm, and also as assignee of Lane, the individual. Thereupon, May 1, 1892, the appellees filed an amended bill, deraigning their title through the assignment of William G. Lane & Co.; and the appellants answered, denying the validity of this title, and alleging that they were innocent purchasers for value from the heirs of Graham and from the heirs of Lane. A replication was filed, and, after final hearing, the court below rendered a decree for the appellees for the relief they sought.

It is conceded that Barnett Graham owned these lands. The title of the appellees is derived from him as follows: Barnett Graham and wife conveyed these lands by warranty deeds to William G. Lane, and these deeds were recorded in the county where these lands were situated. The lands were purchased by William G. Lane & Co., and William G. Lane had no beneficial interest in them except as a member of that firm. March 4, 1861, all the members of the firm of William G. Lane & Co. joined in a general assignment of their firm property to Frederick N. Lawrence and L. M. Wiley for the benefit of their creditors. The land in dispute was a portion of about 25,000 acres of Arkansas lands referred to in the schedule filed under this assignment. The assignment was made, filed, and recorded in New York City, where William G. Lane & Co. were conducting their business. This firm owed Henry Vanderzee $70,000, and he subsequently became practically the only creditor, and acted as the clerk of the assignees. He testifies positively that this assignment and the assignment of W. G. Lane were recorded in St. Francis county, Ark., and Lawrence, the assignee, testifies that he believes that they were so recorded, but that he has no documents to prove it. Subsequent to 1861, and during the war of the Rebellion, the records of St. Francis county were burned. L. M. Wiley died prior to 1873. Prior to that time, Lawrence, as assignee, expended about $10,000 in paying taxes upon these lands and redeeming them from forfeitures. In 1873 he sold them, as assignee of William G. Lane & Co., to Henry Vanderzee, and made a deed to him, as sole surviving assignee of William G. Lane, and as sole surviving assignee of William G. Lane & Co., which was dated January 7, 1873, and was recorded in St. Francis county, February 8, 1873. December 6, 1875, Vanderzee sold the lands in dispute in this suit to T. B. Mills for 50 cents an acre, and conveyed them to him by a deed which was dated on that day, and was recorded in St. Francis county, February 27, 1877. The title thus acquired by Mills passed by subsequent conveyances, duly recorded, to J. N. Brown, the original complainant in this action, prior to January 21, 1877.

The title of the appellants is derived from Barnett Graham as follows: Graham died prior to 1883. July 5, 1883, the widow and heirs of Graham made a deed of the lands in dispute to G. W. Miller, which was recorded in St. Francis county, September 29, 1883. August 8, 1883, the appellant Charles Paxson, as trustee for the Iowa & Arkansas Land Company, purchased these lands of Miller for $3,000, and the latter made a deed of them to Paxson, dated on that day, and recorded September 29, 1883. William G. Lane died in 1885. September 4, 1888, the appellant Paxson, as trustee, bought from the heirs of William G. Lane, for $600, a quitclaim deed of these lands, dated on that day, which was recorded October 24, 1888.

J. M. Moore and J. W. House filed a brief for appellants.

John B. Jones filed a brief for appellees.

Before CALDWELL and SANBORN, Circuit Judges, and THAYER, District Judge.

SANBORN Circuit Judge, after stating the facts as above, .

The record in this case presents but a single question for our consideration, and that is whether or not the evidence read at the hearing below warrants the decree for the appellees.

We have not failed to notice that in the assignment of errors the appellants allege that the court below committed error in permitting a certain decree of the circuit court of St. Francis county, state of Arkansas, to be read in evidence, in permitting the assignments of William G. Lane and William G. Lane & Co. to be read in evidence, and in allowing the appellees to read in evidence the deposition of Joseph W. Martin. But rule 24 of this court (1 C.C.A. xx., 47 F. xi.) requires the brief of the appellant to contain:

'First. A concise abstract, or statement of the case, presenting succinctly the questions involved, and the manner in which they are raised.'

The brief of the appellants fails to state how the questions suggested by these alleged errors of the court in admitting evidence were raised, and a careful perusal of the record discloses the fact that they never were raised at all. There is no exception to any ruling of the court on these questions, and the only objection to any of this evidence is to the entire deposition of Mr. Martin, 'for incompetency and irrelevancy' simply. A portion of that deposition proves that the deeds from Barnett Graham to William G. Lane were destroyed by fire. That testimony was certainly competent and relevant to make parol proof of the contents of those deeds competent; hence the entire deposition could not have been rejected. It is true that in this deposition Mr. Martin testified that each of these deeds had a certificate of its record in St. Francis county attached to it, that seemed to be regular and to be made by the recorder of that county; but this portion of the deposition was not singled out and objected to on the ground that this was not the best evidence of the record of these deeds, nor was any objection made to it except the general objection to the entire deposition which we have quoted, and no exception was taken to the ruling upon that objection. The result is that these assignments of error are baseless. All the evidence in this record was before the lower court, and is before this court for its consideration. All objections that any of this evidence was not the best evidence of the fact sought to be established that the case permitted have been waived, and the secondary evidence, if any, must be considered in determining the issues. When secondary evidence is offered, opposing counsel may not stand by in silence and permit it to be introduced, and subsequently be heard to say that the fact it tends to prove is not established because the best evidence was not produced. In such cases it is not improbable that the best evidence would have been produced if objection had been made to the secondary evidence when it was offered; and if no objection is then made, while there is yet time to produce other evidence, counsel cannot be heard to object on that ground when it is too late to produce it.

We turn to the consideration of the only question remaining: Does the evidence warrant the decree for the appellees? The appellants maintain that it does not, on three grounds:

First. Because they were purchasers for a valuable consideration from Miller, the grantee of the heirs of Graham, without notice of any deed from Graham to Lane.

Second. Because the assignment of William G. Lane & Co. was insufficient to convey the title Lane obtained from Graham, and hence their deed from the heirs of Lane conveyed it to them.

Third. Because they are purchasers for a valuable consideration from the heirs of Lane, without notice of the assignment of William G. Lane & Co. to Lawrence and Wiley.

The first contention rests on the statutes of Arkansas (Mansf. Dig. Secs. 670, 671), which provide that:

'Sec. 670. Every

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