Salmer v. Lathrop

• Decision Date: 05 October 1897
• Citation: 10 S.D. 216,72 N.W. 570
• Parties: G. T. SALMER, T. C. McDowell and H. B. Chaffee, Plaintiffs and respondents, v. A. H. LATHROP and Lansing Lumber Company, Defendants and appellants.
• Court: South Dakota Supreme Court

10 S.D. 216

72 N.W. 570

G. T. SALMER, T. C. McDowell and H. B. Chaffee, Plaintiffs and respondents, v. A. H. LATHROP and Lansing Lumber Company,

Defendants and appellants.

South Dakota Supreme Court

Appeal from Circuit Court, Clay County, SD

Hon. K G. Smith, Judge

Affirmed

French & Orvis, Yankton, SD

Attorneys for appellants.

H. G. Tilton, W. E. Gantt, E. C. Ericson

Attorneys for respondents.

Opinion filed Oct. 5, 1897

FULLER, J.

This action to determine conflicting claims to and recover for the use and occupation of lots 8 and 9 in block 36 of Snyder’s addition to the city of Vermillion, was tried to the court without a jury, and resulted in a judgment for plaintiffs, from which, and an order overruling a motion for a new trial, defendants appeal.

Plaintiffs’ claim of title, as alleged in the complaint and found by the court, is as follows: Patent froth United States to Hugh Compton, dated April 20, 1867, describing the E. ½ of the S.W. ¼ and the W. ½ of the S. E. of section 13 township 92, range 52, which includes the premises in dispute On the 11th day of December, 1866, Compton and wife conveyed all of said property by warranty deed to Jacob Deuel, who on June 5, 1867; conveyed the same, by a like instrument to Jefferson P. Kidder; and he, on the 1st day of the following November, conveyed said premises by warranty deed to Cyrus Snyder, who, on the 10th day of March, 1870, surveyed and platted a portion of the tract as Snyder’s addition to Vermillion, which said plat contains, among other descriptions, lots 8 and 9 Of block 86, being the identical property which said Snyder sold and by warranty deed conveyed on the 22d day of June, 1872, to Enoch C. Gray, by whom said lots were again sold and conveyed on July 1, 1872, to Thomas C. McDowell; but, by mutual mistake of the parties, the warranty deed thereof was executed in the name of T. C. McDowell, instead of Thomas C. McDowell the grantee above named. On the 14th day of September, 1885, Thomas C. McDowell, in and under his true name, sold and conveyed the property in question to H. B. Chaffee, the immediate grantor of plaintiff G. T. Salmer, as shown by a deed executed and delivered on the 10th day of February, 1890. All the foregoing instruments, including the plat, were duly recorded in the office of the register of deeds. The defendant, the Lansing Lumber Company, occupies under a lease, but claims no interest in the premises; and the defendant A. H. Lathrop, to defeat plaintiffs’ action, relies upon possession under a tax deed of the lots, executed and delivered to him, by the treasurer of Clay County, in which the property is situated, on the 14th day of November, 1894, at which time he went into, actual and continued possession thereof. After commencing this action against the defendants, which was instituted in the name of G. T. Salmer, as the only plaintiff and the real party in interest, the deposition of Charles Boone, Jr., was regularly taken, to be used in plaintiffs’ behalf at the trial; and the same was inclosed in a sealed envelope, containing the title of the cause, name of the officer taking the same, and the address of the clerk of the court in which the action was pending and to whom said deposition was transmitted, as required by section 5292 of the Compiled Laws. Subsequently plaintiffs’ counsel applied to the court, and obtained an order by which they were allowed to amend the complaint by nominally making T. C. McDowell and H. B. Chaffee additional parties plaintiff. When the cause came on for trial, the court overruled defendants’ motion to suppress this deposition, made and based solely upon the ground that the envelope in which the same was transmitted did not contain an indorsement of the title of the action as it then existed, and this ruling of the court is assigned and urged as error. By bringing McDowell and Chaffee into the action as plaintiffs, by way of amendment, after the deposition was taken and transmitted, in an envelope, at the time properly indorsed, the defendants were in no manner prejudiced; nor were the issues tendered materially changed by the complaint subsequently filed, and upon which the action stood for trial.

Were the contention of counsel for defendants tenable, every immaterial change in the title of an action, made pursuant to an order of the court by way of amendment, substitution, or intervention after taking a deposition, and before trial, would be sufficient to exclude all evidence thus procured, though otherwise subject to no objection.

“Statutes directing that the envelope or wrapper covering a deposition shall be indorsed with the style of the cause and otherwise have been liberally construed, the prevailing object being only to preserve the purity of the deposition.”

6 Enc. Pl. & Prac. p. 535. Under a system which, looking to substance rather than form, requires courts to disregard trivial errors or informalities, and, to promote justice, allows liberal amendments as to parties, a deposition taken in a cause, and relating to the subject matter upon which the action is based, should not be suppressed, at the instance of parties defendant, for the sole reason that the title of the cause as instituted, and as the same existed at the taking of said deposition, is found to be indorsed upon the sealed envelope in which the same was transmitted, instead of the title as subsequently amended, and containing the names of additional, though disinterested, parties plaintiff. Holmes v. Boydston, 1 Neb. 346, Weatherby v. Brown, 106 Mass. 338; Ryan v. O’Connor, 41 Ohio St. 368; Pio Pico v. Cuyas, 47 Cal. 174; Vincent v. Conklin, 1 E. D. Smith, 203. The only reasonable and well settled rule is that where pleadings have been amended by the addition or substitution of parties plaintiff, requiring a change in the title of the action subsequent to the taking of a deposition, the same may be read as against original defendants, provided the issues remain the same and the testimony is alike applicable thereto after as well as before the change was effected.

To the reading of this deposition of Charles Boone, Jr., taken in narrative form, counsel for defendants interposed numerous objections, principally upon the ground that the testimony offered is “incompetent, immaterial, and irrelevant, and no proper foundation is laid for it, and as stating a conclusion of the witness, and that it is hearsay evidence.” There being no question substantively at issue as to the identity of the property in dispute, and that fact being clearly established by the undisputed testimony of another witness, that portion of the deposition with other evidence relating to the same subject, and the objections of counsel to its introduction may safely be considered generally in determining questions of evidence relative to the alleged mutual mistake in the execution of the deed by Enoch C. Gray, in which T. C. McDowell was named as grantee instead of Thomas C. McDowell. the real purchaser and party with whom the transaction was had. Upon this subject, Mr. Boone, who is a brother-in-law of the grantor, Enoch C. Gray, and who placed his name upon the McDowell deed as a witness to its execution, testified over the objection of counsel, in substance and effect as follows:

“I knew Enoch C. Gray in his lifetime. … he died October 15, 1885. … I was also personally acquainted with Thomas C. McDowell, … and I have had many conversations with him. I remember Mr. McDowell making a deal (I mean Thomas McDowell) with Mr. Enoch C. Gray for some lots in the town of Vermillion, Dakota territory. The facts and circumstances of the transaction are within my personal knowledge. It came about in this way: Mr. Thomas C. McDowell had an old land warrant which he sent Mr. Enoch C. Gray (then at Eden, Dakota territory), to locate for him; and Mr. Gray finally traded him three lots in the town of Vermillion for it; and on July 6, 1872. Mr. Gray executed a warranty deed to Mr. Thomas C. McDowell for these lots, which deed I signed as a witness, and which original deed is hereto attached and made a part of my deposition. The signature of Charles Boone, Jr., thereon written is my signature written at the time. I known of my knowledge that the person to whom Mr. Enoch C. Gray conveyed the lots or lands described in this deed (marked ‘Exhibit A’) was T. C. McDowell. His full name, as I have heretofore said is Thomas C. McDowell, then living and keeping store at Spring Mill, Montgomery county, Pennsylvania. I have often been in Vermillion, and looked at these lots. I was asked by Mr. Thomas C. McDowell to pass an opinion as to their value. Mr. McDowel1 afterwards moved to Port Walthall, Chesterfield county, Virginia. I have had correspondence with him both while he was living at Spring Mill, Montgomery county, Pennsylvania, and after he moved to Virginia. I have written letters to him, and received letters from him in answer to mine. I am well acquainted with his signature. In making a capital ‘T’ he made it very much like a capital ‘I’ or ‘J’; and, from my knowledge of his signature, I would say that the signature of Thomas C. McDowell to the quitclaim deed hereto attached, and marked ‘Exhibit B,’ is the signature of T. C. McDowell, who lived at Spring Mill in 1872. and the man to whom Mr. Enoch C. Gray conveyed the lots described in the deed, marked ‘Exhibit A,’ hereto attached. … The best of my recollection is that the deed was sent to Vermillion, and placed on record before it was sent to Mr. McDowell, who was then in Montgomery county, Pennsylvania, and that Mr. McDowell did not see it until it was recorded, and that he had no opportunity to correct it before it was recorded.”

In our opinion, the foregoing testimony was properly admitted, and, being undisputed, is sufficient to sustain the finding that, at the time designated, the said Enoch C. Gray “made, executed and delivered to the plaintiff Thomas C. McDowell, under and...