People's Nat. Bank of Waterville v. Nickerson

• Decision Date: 04 August 1911
• Citation: 108 Me. 341,80 A. 849
• Parties: PEOPLE'S NAT. BANK OF WATERVILLE v. NICKERSON.
• Court: Maine Supreme Court

80 A. 849

108 Me. 341

PEOPLE'S NAT. BANK OF WATERVILLE

v. NICKERSON.

Supreme Judicial Court of Maine.

Aug. 4, 1911.

(Syllabus by the Court.)

Exceptions from Supreme Judicial Court, Somerset County.

Writ of entry by the People's National Bank of Waterville against Hanover S. Nickerson.Verdict was directed for plaintiff, and defendant excepted.Exceptions overruled.

See, also, 106 Me. 502, 76 Atl. 937.

Argued before WHITEHOUSE, C. J., and SAVAGE, SPEAR, CORNISH, BIRD, and HALEY, JJ.

Johnson & Perkins, for plaintiff.

David D. Stewart, for defendant.

SAVAGE, J. Writ of entry.The writ contained one count, and described four separate tracts of land by metes and bounds.Before proceeding to trial, the plaintiff, against the objection of the defendant, had leave to amend by striking out one of the tracts described.The defendant took an exception.The plaintiff claimed title under an execution sale and sheriff's deed, and introduced in evidence, subject to objection and exception, the execution and return thereon, and the deed.These will be noticed later.Other evidence was also admitted.

At the conclusion of the trial, the presiding justice directed a verdict for the plaintiff, and the defendant excepted.And the case is now before us on all these exceptions.

Before considering the exceptions on their merits, we must first notice a question of practice.The case as made up and printed, and as first presented to this court, contained only the evidence which was specifically mentioned in the bill of exceptions.It was conceded at the argument that there was testimony which had not been printed.A transcript of this testimony was submitted to the court, and it was agreed by counsel that it should be considered as a part of the record in the case, if the court were of opinion that this testimony should have been printed as a part of the case originally.We are of that opinion.When a nonsuit is ordered, or a verdict is directed, and exceptions are taken, all of the evidence necessarily becomes a part of the case on exceptions, whether it is mentioned in the bill of exceptions or not.Such a ruling is based upon the entire evidence, and will stand unless it is shown to be erroneous.The burden is on the excepting party to show that it is erroneous, and that he is aggrieved.And it cannot be shown to be erroneous without an examination of all of the evidence; for it may be that the errors complained of are cured, or the omissions supplied, by the evidence omitted in making up the case.In this case it would have been our duty to overrule the exception to the direction of a verdict without further examination, had not the omission been remedied by the transcript submitted.

When this case was in this court before (106 Me. 502, 76 Atl. 937), the defendant complained because the plaintiff had embraced four separate tracts of land in one count, but the court held that the practice was allowable.He now complains that the plaintiff has been permitted to reduce the number from four to three by amendment.And this is the subject of his first exception.His contention, as stated in the brief of counsel, is that having alleged one joint disseisin of four tracts he must prove it as alleged, or he must fail.Of course, he must prove whatever he has alleged that is essential, but that does not mean necessarily that he must prove whatever was alleged in the original declaration, but rather what is alleged in the amended declaration, if it is amended.

Of the propriety of such an amendment there can be no question.To allow a plaintiff to diminish the extent of his claim in a real action, either in quantity or character, does not introduce a new cause of action.Such an amendment is allowed almost as a matter of course.Plummer v. Walker, 24 Me. 14;Howe v. Wildes, 34 Me. 566.There is no difference in principle between the allowance of such an amendment and permission to strike out items from an account annexed.Such permission has been granted times without number.Fogg v. Greene, 16 Me. 282;Wight v. Stiles, 29 Me. 164;Towle v. Blake, 38 Me. 528;Boyd v. Eaton, 44 Me. 51, 69 Am. Dec. 83;Monroe v. Thomas, 61 Me. 581;Goodwin v. Clark, 65 Me. 280;South Thomaston v. Friendship, 95 Me. 201, 49 Atl. 1056.The defendant can take nothing by this exception.

The other exceptions relate to the admissibility and sufficiency of the proof of the plaintiff's title under the execution sale and deed, and may be considered together.

The defendant contends, first, that, although an execution and return of sale and a sheriff's deed, such as it was, were introduced, there was no proof of any judgment, and that without proof of a valid judgment, the subsequent proceedings, execution, return, and deed, however correct in form, were not sufficient to prove title.And such is the law.Hill v. Reynolds, 93 Me. 25, 44 Atl. 135, 74 Am. St. Rep. 329.And it is true that no judgment was proved.But upon examination of the transcript of evidence not printed, but which is now a part of the case, we find that the plaintiff had placed the clerk of the Supreme Judicial Court for Kennebec county upon the stand as a witness, with his book of records, and was proceeding, as we think we should assume, to prove a judgment by the record, when the defendant's counsel interrupted, saying: "I don't make any objection to that.The certificate on the back of the execution is to be the legal proof."Thereupon counsel for plaintiff forbore to ask further questions.We think that we should now hold that formal proof of a judgment was thereby waived, and the defendant should not now be heard to say there was no proof of any judgment.

The defendant contends in the next place that the sheriff's deed was not "sufficient."The statute(R. S. c. 78, § 36) provides that an officer selling land on an execution "shall make and deliver to the purchaser a sufficient deed thereof," but it does not specify what shall be the essentials of such a deed.It is contended that the deed in this case is not "sufficient" because it does...