Haney v. Marshall

9 Md. 194

• Court: Court of Appeals of Maryland
• Decided: June 15, 1856
• Status: Published

Opinion

Eccleston, J.,

delivered the opinion of this court.

On motion of the defendant a rule was laid upon the plaintiff to give security for costs, under the act of 1801, ch. 74, sec. 9. To this ruling of thp court the plaintiff excepted; now contending that he was not, when the suit was brought, a non-resident, and that he did not remove out of the State after the commencement of the suit.

The proof shows that Haney was formerly a farmer in Maryland, and a local preacher attached to the society of the United Brethren in Christ. After the decease of his wife he sold his farming utensils, and some household furniture. After which he went to Yirginia, leaving his children in Maryland, living with their aunt; and for three or four years prior to the trial, in December 1854, he had been engaged, in Yirginia, as an itinerant preacher, having occasionally visited his children in Maryland. The conference to which he belongs includes a part of Maryland, and also part of- Yirginia, but is called the Yirginia conference, and since Haney has been engaged as an itinerant preacher he has been stationed, all the time, in the latter State: the conference having authority to assign him any place they might deem proper, within the limits of the conference. During the term of the court at which this case was tried, in a conversation with the witness, Keilhoffer, the plaintiff being asked where he then lived, said, in Yirginia. And also said he had been living there some three or four years; that he had been lately married, and “was living some 160 miles from here;” meaning from Hagerstown in Maryland. It was shortly after the decease of his wife, and the sale of his farming utensils, he abandoned his farming operations, and made the change from a local to an itinerant preacher, knowing that by the change he would be subject to such regulations of his religious society as would give' the officers thereof the authority to send him beyond the limits of Maryland, and to keep him out of the State for the residue of his life, if they saw fit to do so.

Whilst we find all these manifestations, or evidence of a removal from this State, there is no proof of any declaration, or of any intimation, either at the time of leaving or since, of an intention to retain a residence here, or to resume it at any future time.

Under these circumstances we think the plaintiff was within the provision of the law, in regard to a removal out of the State after the institution of a suit.

But, in behalf of the plaintiff, it is contended, that admitting he has removed from Maryland, still the rule ought not to have been laid, because the trial court contemplated by the act of Assembly, had passed a long time before the rule was asked for; inasmuch as that act has reference to the second term of the court, under the present law regulating the trial of causes. This we think’ is not the proper construction of the statute ; but the trial court alluded to means any court at which the case is ready for trial, and called for that purpose.

This interpretation will not, as has been supposed, subject the plaintiff to a non-suit, because being taken by surprize he may not be prepared to give the security. With a view of avoiding such a mischief the law authorizes the court to grant a continuance of the cause, until the next term, so as to allow the plaintiff time to comply with the rule.

Although, in consequence of the law having provided for the trial of causes at the second term, in that sense such term may be called the trial court, yet, in point of fact, the term at which the case is actually tried is really the trial court of that cause.

It was evidently the design of the act to give the defendant a right to demand security for costs, if the plaintiff should remove from the State after the institution of the suit and previous to its termination. Which design would be defeated by the plaintiff’s interpretation of the law, in a case tried after the second term, if the removal should occur between that term and the trial of the cause.

Another objection to the ruling of the court is, that the 9th sec. of the act of 1801, is unconstitutional, because in violation of the 4th article and 2nd sec. of the constitution of the United States, which declares that citizens of each State are entitled to all the privileges and immunities of citizens in the several States. The act has been in operation for more than half a century. During all which time it has been recognized by the profession, both on the bench and at the bar, as a valid law; its constitutionality never before having been questioned, and at this late day we are not disposed to declare it. a nullity. In aid of the correctness of such a decision, we would refer to the 83rd, 91st, and 92nd rules of the Circuit Court of the United States for the Maryland District, in which, the principle of this act is adopted. Which rules were made and established by the judges of that court, at November term 1802. Evans' Pr. 529, 530 & 531. From their adoption to the present time these rules have continued in operation ; and at April term 1842, since the appointment of the distinguished Chief Justice Taney, the 92nd rule was extended to cases in chancery. See also what is said in Campbell vs. Morris, 3 H. & McH., 553, &c., in regard to the second section of the fourth article of the constitution of the United States.

It appears, from the second exception, the defendant offered in evidence to the jury a deed, from himself and wife, to the plaintiff; the signing and sealing of which were admitted. At the time of offering the deed the counsel for the defendant stated to the court, they intended to offer further testimony showing that the plaintiff had accepted the deed under the covenant. To the reading of this instrument to the jury, and to the admissibility of the same as offered, the plaintiff objected, insisting, that it was not duly and properly acknowledged accoi'ding to the laws of Maryland, and that before being admitted as evidence to the jury it should be shown to be a good deed, and properly acknowledged according to the laws of Missouri. But the court overruled the objection and permitted the deed to go to the jury. This decision he defendant’s counsel contends is correct, because of his offer to produce evidence of the acceptance of the deed by the plaintiff; the effect of which acceptance it is said has been settled by the two former decisions in the Court of Appeals, in reference to this deed. But in neither of those decisions was the question presented which is now before us. The deed was admitted in evidence, in each instánce, without objection, and its effect only considered; or rather, what was its effect if accepted by Haney. It was said by the plaintiff that the land included in the deed was not the same which the defendant, by his covenant, was bound to convey, and therefore the conveyance was no discharge of the covenant. In reply to this it was contended, that if the plaintiff accepted the deed, although it was for land, different from those described in the contract, nevertheless, such acceptance discharged the defendant from liability under the contract. But no question was raised as to whether the deed was defective, for want of a sufficient acknowledgment, ' to convey the lands described in it; or whether the plaintiff’s acceptance would cure a defective acknowledgment.

The court say, in 9 Gill. 259, “A deed had been executed by Marshall to Haney, for lands in Clarke county, Missouri, and if the lands conveyed by Marshall’s deed were not the identical lands named and described in the agreement between Marshall and Haney, yet, in the absence of evidence of mistake, misrepresentation or fraud, if Haney accepted this con veyauce from Marshall, in discharge of this stipulation in the agreement of the 23d of December 1842, it did discharge it.” The court also held, that in the absence of mistake, misrepresentation or fraud, the conveyance from Haney to Chaney, of the same' lauds which were conveyed from Marshall to Haney, was evidence that Haney had accepted the deed from Marshall. And these propositions are adopted in 4 Md. Rep., 511, &c.

The deed under consideration, professing to convey lands lying in Missouri, was acknowledged before the clerk of Washington county court, in Maryland, and no proof was given, or proposed to be given, in regard to how deeds were required to be executed or acknowledged under the laws of Missouri. To render the instrument admissible as evidence, the party presenting it was bound to show, by prima facie proof, at least, that it. had “all the formalities requisite to give it legal existence.” 1 Md. Rep., 123, Dement vs. Stonestreet.

We now propose, in the first instance, to consider the matter without reference to the offer to show that Haney accepted the deed ; and then to see what influence that offer ought to have on the question.

A clerk of the county court not having authority to take the acknowledgment of a deed of lands lying in Maryland, such an instrument as the one before us would not be evidence here. And in the absence of proof in regard to the laws of Missouri, on the subject, we are to be governed by our own laws. Harper vs. Hampton, 1 H. & J., 710. Trasher vs. Everhart, 3 G. & J., 242. Gardner vs. Lewis, 7 Gill, 394. The last of these cases refers, with approbation, to the first, in which it is said: “As to the laws of South Carolina governing this question: — no doubt the laws of South Carolina must govern the court in determining on the validity and operation of this deed, if they are different from the laws of this State; but no proof has been adduced to prove that the laws of South Carolina will make this a good and valid deed, and without proof, the jury cannot find what the law of South Carolina is.” Again, it is there said, “The court must decide it according to the laws of this State; and are of opinion it must be considered as a void and inoperative deed, according to the laws of South Carolina, as to any question arising on it in this State.”

The deed, on its face, is shown to be defective and inoperative under our laws, and in the absence of proof 'showing what the laws of Missouri are, it was inadmissible as evidence; unless the acceptance of it by Haney could be considered as evidence of its validity under the Missouri laws. Conceding, without deciding, the acceptance should be so considered, there arises a question whether the statement of counsel, of an intention to offer further proof showing that the plaintiff had accepted the deed, will j ustify the action of the court in permitting it to go to the jury, as competent evidence, before any proof, whatever, in regard to such acceptance, had been produced, and without any instruction or direction to the jury, as to the light in which the deed was to be regarded by them, if they should believe the deed had not been accepted by the plaintiff. For the deed was permitted to go to the jury, as evidence, under the circumstances just alluded to.

When a written instrument is produced as evidence, and objected to, its execution is to be shown to the court, by prima facie proof, at least, and when that is done it is permitted to go to the jury. But if the preliminary proof is doubtful, the court may allow the jury to take the instrument with the proof in regard to its execution, informing them that they are to receive it as evidence, if they believe it to have been executed, otherwise they must not consider it as evidence. 3 G. & J., 243. 1 Md. R., 123. 5 ib., 418. 7 ib., 45. And 1 Greenl. on Ev., sec. 49.

There is a rule admitting evidence, which, per se, may be irrelevant, when accompanied with an assurance that further proof will be given showing its relevancy. 4 Md. Rep., 510. But no case has been adduced where such a principle has been applied, when a written instrument has been offered and objected to, for want of proof of its execution.

The present deed, when offered, was the only proof of its validity, and in that condition was not admissible, unless made so by proof of its acceptance on the part of Haney. And if admitted, in consequence of the declared intention to furnish such proof, it was error in the court to overrule the plaintiff’s objection, expressing the opinion, as stated in the exception, that “the deed was competent evidence to go to the jury” and permitting them to have it as such ; without saying any thing to them in regard to what should be the effect of proving, or a failure to prove, the acceptance of Haney. Permitting the deed thus to go to the jury as competent evidence, without any instruction as to the effect of an acceptance, was calculated to induce them to suppose the instrument was proper for their consideration, as a valid legal instrument, irrespective of the acceptance; or, at all events, to leave them in a state of uncertainty on that subject. Under such circumstances, the jury might have understood the proposed evidence of acceptance was not designed to be used as evidence, supplying the absence of other proof, that the deed had been executed according to the laws of Missouri; but considering the deed as legally executed, the proof of its acceptance was intended to sustain the plea of accord and satisfaction, by showing that in lieu of the lands described in the covenant the plaintiff had accepted a conveyance of other lands.

There having been no proof whatever of the validity of the acknowledgment, we are not to be understood as expressing any opinion in regard to whether or not the court would have been right,, if they had admitted the deed instructing the jury, at the same time, as to what should be the effect of producing, or failing to produce, the promised evidence of acceptance; but our decision is, that the acknowledgment being defective under our laws, and no proof being given to show its validity under the laws of Missouri, the court were wrong in deciding that “the deed was competent evidence to go,to the jury,” without instructing them what should be the effect of proving, or failing to prove, the acceptance.

The third and fourth bills of exceptions present questions relating to the admissibility of two'deeds, intended to convey lands in Missouri; each of which was acknowledged before the clerk of Washington county court, in this State. What has been said in reference to the deed mentioned in the second exception is sufficient to show, that we consider the court were wrong in admitting the two deeds, mentioned in the two exceptions now under consideration.

The fifth bill of exceptions is in reference to a deed from Haney and wife to Ezekiel Chaney, for the same lands described in the conveyance from Marshall to Haney. The former was offered and admitted, for the purpose of showing ihe acceptance of the latter, by Haney. Want of proper acknowledgment is the ground of objection to the present deed; the acknowledgment being similar to those we have already held to be defective. But this defect does not make the instrument inadmissible as evidence, for the purpose it was designed to accomplish. Although defective as a conveyance of the lands it describes, yet, as the signing and sealing of it by Haney are admitted, and it professes to convey the same lands which are mentioned in Marshall’s deed to him, this instrument, signed by him, might be used as evidence to show he had accepted the deed from Marshall.

The sixth and seventh bills of exceptions have been abandoned. And we understood the plaintiff’s counsel as saying, that if the decision below, in relation to the second exception, should be reversed, he did not insist upon a decision in regard to the eighth. It is therefore unnecessary for us to express any opinion, in reference to the sixth, seventh or eighth bills of exceptions.

The second, third and fourth prayers of the defendant, which were granted by the court, present the questions arising under the ninth bill of exceptions.

The second prayer is erroneous, because it concludes by saying, if the jury believe the matters submitted for their consideration, then, “the execution of the deed by Haney and wife to Chaney is an admission of his acceptance of the deed from Marshall and wife.”

The deed from Haney makes no reference to that from Marshall; but inasmuch as both deeds are for the same lands, the last might be considered as evidence on which to base an inference that the first had been accepted, in the absence of proof rebutting such an inference. It is going too far, however, to say, the execution of the last deed is an admission that Haney had accepted the first. And such an instruction may have operated very injuriously to the plaintiff; for the admission of a fact, by a party, is much stronger evidence against him than a mere inference of the same fact. An inference may be rebutted by circumstances in opposition to its correctness, whilst it is very difficult to convince a jury, that a man has made an admission against his interest, by mistake, or in any other mode to get rid of its influence.

The defendant’s counsel insists, that even if this objection to the prayer is a valid one, when considered without reference to the instruction given in lieu of the first prayer, yet, as that instruction gave the law correctly to the jury, upon the same subject, there can be no reversal on account of the supposed error in the prayer. But as it appears the instruction and the prayer were both given, if one is correct, and the other is erroneous, how is it to be ascertained by which the jury were governed? This is not like the case where several prayers have been offered, some or all of which have been refused, and an instruction given by the court which covers the whole ground. There, although some of the prayers refused should be correct, still the rejection of them will not cause the judgment to be reversed, because the party whose prayers are refused has sustained no injury. But this court cannot refuse to reverse, on account of no injury having been done, by a prayer either erroneously granted or rejected, unless the record clearly shows the absence of injury. How can that be shown, when, on the same subject, a correct and'an incorrect instruction have been given? there being no means of knowing which had an influence on the decision of the jury.

Here we are not permitted to consider the substituted instruction as a substitute, or qualification’of the second prayer, as it is expressly stated to be, “instead or lieu of the first of said prayers, and which was rejected.” And it is likewise said, the second prayer was granted.

The third prayer is, “that there is no evidence in this cause from which the jury can find, that the acceptance of the deed from Marshall and wife, by the said Haney, was occasioned by the fraud or misrepresentation of Marshall,” This assumes the acceptance of the deed from Marshall by Haney, without submitting it to the jury as a matter for their decision. The court were, therefore, wrong in granting such a prayer. .

The fourth contains the same assumption, and is, of course, likewise erroneous.

As this case is to be tried again in the court below, it is deemed proper to say we think the third and fourth prayers should have been refused, because there is some evidence tending to show fraud or misrepresentation on the part of Marshall, and mistake on the part of Haney. The testimony at the • last trial was different, in respect to those matters, from what it was on the former trial.

In Hunter vs. Van Bomhorst, & Co., 1 Md. Rep., 517, it is said, “We do not feel disposed, in considering this case, to discuss the question so often mooted in this court, relating to the separate and independent functions of the court and jury, in regard to the sufficiency, or insufficiency, of testimony. It is enough, for the purposes of this case, for the court to say, that it finds testimony sufficient in the record, which appertains to and tends to the proof of the issue, which would warrant the court in submitting the question to the’jury. We wish to be understood as merely saying, that there is legal testimony in the record, which ought to have been submitted to the jury, but that we express no opinion as to the weight or effect to be given to that testimony by the jury.”

In accordance with the cautious views thus expressed, we deem it proper, on the present occasion, to refrain from saying more than we have said already, in reference to the evidence relating to fraud, misrepresentation or mistake. In attempting to go further, it would scarcely be possible to avoid producing an influence prejudicial to the rights of one or the other of the parties.

There being no necessity to express any opinion in regard to the sixth, seventh or eighth bill of exceptions, we affirm on the first and fifth, and reverse on the second, third and fourth, as also on the second, third and fourth prayers in the ninth exception.

Judgment reversed and procedendo awarded.

Mason, J. dissented in part.