The first error assigned is the decision of the court admitting the deposition of Underwood.
It must be admitted that the deposition was not taken in conformity with all the regulations of the act of Congress of September 24th, 1789. It does not appear that the witness was sworn to testify the whole truth. Nor does it appear that there was any certificate of the reasons why the deposition was taken. In addition to this it was taken before a township justice, and not by any magistrate described in the act of Congress, and for these reasons the opposition to its reception in evidence was founded. No other reason was stated in the court below, and no others are urged in this court.
It is to be observed that the objections made are all formal rather than substantial. Still they are quite sufficient to require the rejection of the deposition, if there is nothing in the case to countervail their effect. But it is obvious that all the provisions made in the statute respecting notice to the adverse party, the oath of the witness, the reasons for taking the deposition, and the rank or character of the magistrate authorized to take it, were introduced for the protection of the party against whom the testimony of the witness is intended to be used. It is not to be doubted that he may waive them. A party may waive any provision, either of a contract or of a statute, intended for his benefit. If, therefore, it appears that the plaintiff in error did waive his rights under the act of Congress-if he did practically consent that the deposition should be taken and returned to the court as it was-and if by his waiver he has misled his antagonist-if he he refrained from making objections known to him, at a time when they might have been removed, and until after the possibility of such removal had ceased, he ought not to be permitted to raise the objections at all. If he may, he is allowed to avail himself of what is substantially a fraud. Parties to suits at law may assert their rights to the fullest extent; but neither a plaintiff nor a defendant is at liberty to deceive, either actively or passively, his adversary, and a court whose province it is to administer justice, will take care that on the trial of every cause neither party shall reap any advantage from his own fraud.
In this case it appeared to the court below, as the record states, that Underwood was an aged man when his deposition was taken; that he had died before the trial; that one of the counsel for the defendant (now plaintiff in error) had accepted notice of taking the deposition; that he had attended at the taking, and cross-examined the witness; that he made no objection either to the sufficiency of the oath, to the reasons for taking the deposition, or to the competency of the magistrate; and that, though the deposition had been filed in the record of the cause more than a year before the trial, no exception had been taken to it in all that time. Under these circumstances, the consent of the defendant to the manner of taking the deposition must be presumed, or a fraudulent attempt to mislead the plaintiff must be conceded. It has been decided that objections to the competency of a witness must be made at the time of taking his deposition, if the party objecting attended, and the objections were then known by him, in order that his opponent may remove them, and that if he does not then object he will be presumed to have waived objection. [1]
The reason is that unless such presumption is made, fraud and trickery must be imputed to the objecting party. There is at least equal reason for presuming the consent of the defendant, that the deposition of Underwood should be taken before the magistrate who took it, and in the manner in which it was taken. In York Company v. Central Railroad Company, [2] it was said that when a deposition has been taken under a commission the general rule is, that all objections of a formal character, and such as might have been urged on the examination of the witness, must be raised at such examination, or upon motion to suppress the deposition. In Buddicum v. Kirk, [3] it appeared that a deposition had been taken under a 'dedimus potestatem.' Notice had been given to the plaintiff's attorney that it would be taken on the 8th of August, and, if not taken in one day, that the commissioners would adjourn from day to day until it should be finished. The attorney agreed that it might be taken on that day whether he attended or not. The commissioners met on the 8th of August, and adjourned from day to day until the 12th, when they adjourned until the 19th, and then took the deposition. There was no attendance of the plaintiff's attorney, and he had no notice of the several adjournments, yet this court held that the agreement of the attorney that the deposition might be taken whether he was present or not, his subsequent examination of it without objecting to the want of notice, and the death of the witness, were sufficient grounds for the defendant to believe that the objection would be waived, and the deposition was ruled to be admissible. This, it is true, was not the case of a deposition taken 'de bene esse,' but it shows that formal errors and defects in taking depositions may be waived, and it shows that much less than appears in the present case will be held to be sufficient evidence of a waiver. See, also, Rich v. Lambert, [4] where it was ruled that the absence of an order for issuing a commission is waived by joining in executing the commission. In that case the thing waived was absence of authority to take the deposition.
It must be conceded that the authority to take depositions de bene esse, under the 30th section of the act of 1789, has always been construed strictly. Being in derogation of the rules of common law, the formalities prescribed by the act must be observed; and many cases may be found in which such depositions have been rejected, because it did not appear that the required conditions or formalities had been regarded. They are all, however, cases in which the party objecting did not attend the examination of the witness, or took no part in it. They are all consistent with the rule, that a party may waive any conditions that are intended for his sole benefit, and that he does waive every formal objection when he attends the examination of a witness, cross-examines without protest, and remains silent until the witness has died. Such was the case here. The deposition shows that the attorney of the objecting party attended before the magistrate, that he took part in examining the witness, and that he never made objection until more than a year afterwards, when the witness was dead, and when the case came to trial. All these facts appeared to the court below, and they were not controverted. Under the circumstances, therefore, we think the deposition was correctly received by the court, and that this assignment of error cannot be sustained.
The next error assigned is the admission by the court of the exemplifications of the record of a deed from Nathaniel Bacon, a son and heir of Jabez Bacon, to Philo Murray, and of the record of a deed from Philo Murray to Peter Smith. It is alleged that the deeds had not been recorded in compliance with the statutes authorizing deeds made out of the State to be recorded. The objection, we think, is founded upon a mistake of facts. The grantors were both residents in the State of Connecticut, and to each deed there was a certificate of the clerk of the District Court of the United States that the grantor therein named personally appeared in the court, and acknowledged the instrument to be his free act and deed. There is also a certificate of the judge, dated the day of the clerk's certificate, that the clerk was then clerk of the District Court. Probate was thus made strictly in accordance with the Virginia statute of December 8th, 1792. The deeds were therefore entitled to record, and they were duly recorded in pursuance of orders of the county court. [5] Hence there was no error in admitting the exemplifications in evidence.
We pass now to consider the fourth bill of exceptions. The court refused to allow proof of the reputation of the neighborhood as to a poplar corner at the present day, 'unless such reputation was traditionary in its character, having passed down from those who were acquainted with the reputation of the tree from an early day to the present time,' or unless 'the information as to such reputation was derived from ancient sources, or from persons who had peculiar means of knowing what the reputation of the tree was at an early day.' But the court permitted the defendant to prove that the occupants of the Laidley survey No. 1, and of the Mason tract adjoining thereto (the poplar being a corner of each), claimed the poplar as the true corner of their tracts. To this ruling of the court the defendant excepted.
We do not perceive that any injury could have been sustained by the defendant in consequence of this ruling, even if it was incorrect; certainly none that would justify our sending the case to a new trial. But there was no error. Reputation as to the existence of particular facts not of a public nature, is not generally admissible, though where the existence of the facts have been proved aliunde, reputation is sometimes received to explain them. [6] Here, however, the evidence was offered not to explain a fact, but to establish it. We do not propose to discuss this subject at length. It is sufficient to say that the limitations imposed by the court upon the evidence of reputation offered, are fully sustained by authority. [7]
The next error of which complaint is made, is that the court refused to permit the defendant to give in evidence a tax deed for the lands from Taliaferro Knight, recorder of Doddridge County, to John S. Hoffman. It seems to have been offered to show title out of the plaintiff. The deed bears date on the 26th day of March, 1866. From the recitals contained in it, we are informed that the land was returned delinquent for the non-payment of taxes for the year 1857, and that it was sold in the year 1860, to John S. Hoffman. The sale was made in force of the laws of Virginia, of which West Virginia was then a part. [8] By that statute two years were allowed for redemption, and after they had expired, the purchaser was required to have a survey made and reported to the court of the proper county, which, if approved, the court might order to be recorded. After all this had been done, the clerk was required to make a deed to the purchaser, in conformity with the survey. No sale could be consummated, and no deed could be made, prior to the return, confirmation, and record of such survey. It is important to keep these provisions of the law in mind, for in 1863 West Virginia became a separate State. By virtue of a clause in its constitution, as well as without such ordinance, the laws of Virginia continued in force until changed by the West Virginia legislature. But that legislature, on the 27th of February, 1866, passed an act by which the entire thirty-seventh chapter of the Virginia statutes was repealed so far as it applied to tax sales of lands in West Virginia. [9] At that time the deed to Hoffman had not been made, nor had the survey of the land been made and reported. This appears from the deed itself. It is plain, therefore, that there was no authority for the survey and report, or for the deed. Without the statute in existence when they were made, they could have no efficacy. As transmissions of title they were wholly void. The deed was therefore properly rejected.
There remains one more exception to be considered. It is to the charge of the court in answer to the request of the jury for instructions. It is, however, unnecessary to examine critically the charge. If we understand the complaint of the plaintiff in error, it is not so much that erroneous instructions were given, as that the court failed to give the directions which it is now contended should have been given. The point made in the brief of the plaintiff in error is, that 'the instructions given to the jury by the court, did not clearly and correctly propound the law of the case.' There were, however, no requests for specific instruction, and it is abundantly settled that error cannot be assigned for failure to give instructions that were not asked. The portion of the charge excepted to, may not have covered the whole case. It probably did not. But so far as given, we discover in it no erroneous directions. It is true that, under the statutes of the State, the claimant, in order to take the forfeited title, must have had an apparent title, or color of title, regularly derived from the Commonwealth, acquired legitimately, and must have discharged the State's lien for taxes. This does not seem to have been contested. It certainly was not denied by the court. The main controversy evidently was over the question whether the whole title of Jabez Bacon has become vested in the plaintiff. A deed from only one of his children appears to have been given in evidence. But the loss of many title papers was proved. The heirs of Bacon made no claim, and disclaimed all intention of claiming. The plaintiff, and those under whom he claimed, had taken charge of the land, and kept it from 1815 till 1839, paying taxes. Then all the heirs of Smith quitclaimed to the Oberlin Collegiate Institute, whose title the plaintiff has. From 1826, possession has attended the claim, without challenge. Whether these facts, and others of which evidence was given, justified a presumption of a grant from the other heirs of Bacon was, of course, a question for the jury, in regard to which no instruction to the jury was asked. Nor are we informed what directions, if any, were given. In this part of the case there is, consequently nothing for us to review. And in the part of the charge to which exception was taken, we perceive no error.
JUDGMENT AFFIRMED.
Notes edit
- ↑ United States v. One Case of Hair Pencils, 1 Paine, 400
- ↑ 3 Wallace, 113.
- ↑ 3 Cranch, 293.
- ↑ 12 Howard, 354.
- ↑ Smith v. Chapman, 10 Grattan, 452; Hassler v. King, 9 Id. 115.
- ↑ 1 Greenleaf on Evidence, § 138.
- ↑ 1 Starkie on Evidence, ch. 3d passim.
- ↑ Chapter 37, Civil Code.
- ↑ Acts of Legislature, 1866, p. 85.
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