Lessee of Ludlow's Heirs v. Park

4 Ohio 1

• Court: Ohio Supreme Court
• Decided: December 15, 1829
• Status: Published

Opinion

Opinion of the court, by

Judge Hitchcock ;

The practice of the court requires that, when a cause is reserved for decision at the special session, a statement shall be made in writing, and filed with the papers in the cause, ’’’showing the particular point or points to be litigated and determined. If the question reserved, arises upon the sufficiency of the pleading, such statement is unnecessary. Nor is it required in chancery proceedings, where the evidence is in writing, and with the pleading submitted to the court. But where the court is supposed to have erred in the admission or rejection of evidence in the course of a jury trial, which supposed error is made the foundation of a motion for a new trial; or where the court, in the course of such trial, reserves questions for subsequent consideration, such state-' ment is peculiarly necessary. Without it, it may many times bo difficult to arrive at a satisfactory conclusion. The statemenl should be drawn up by the counsel excepting to the opinion of thvi court, submitted to and approved by the court, and filed away bj the clerk. This having been done, no room is left for subsequent altercation. The propriety and necessity of this course of prac tice is clearly evinced in the present case. No statement in writ ing was made, consequently the counsel differ as to the precise question reserved. Contrary statements are exhibited with a view to satisfy the court as to this point. From our knowledge of the gentlemen concerned, we have not the least doubt but that they state the circumstances as they understood them when these circumstances transpired, but it is manifest there must have been some misapprehension.

The ease now comes before the court on motion for a new trial. The motion is grounded upon a supposed error in the court upon, the circuit, in the rejection of certain evidence offered by the defendant; and upon the fact that the defendant, since the trial, has discovered evidence material to the issue. Other reasons are assigned in the record, but they do not appear to be relied upon, not being even referred to in argument.

On the trial of the cause to the jury, the defendant offered in evidence a deed to himself, from the administrators of Israel Ludlow, purporting to convey the premises in controversy. The deed bears date December 21, 1810, and recites the fact that the sale was made ,on the 13th day of the same month. At the same time the order of sale of December 17, 1810, was offered in evidence to show the power of the administrators to sell. *The recital of the deed states that the sale was made in pursuance of this order. The evidence thus offered was objected to by the counsel for the plaintiff, the objection sustained, and the evidence overruled. In rejecting this evidence the court decided correctly, unless the doctrine can be maintained that an order of the court of common pleas, authorizing an administrator to sell the real estate of his intestate, will have so far a retrospective operation as to legalize a sale made prior in point of time to the order itself. An attempt will hardly be made to sustain a principle so absurd. In fact, I do not understand that there is any complaint in consequence of the rejection by the court of this order.

The defendant next offered in evidence the order made by the court of common pleas, at the May term, 1804. This evidence was objected to for a variety of reasons. It was urged that inasmuch as it appeared from the recital in the deed, that the administrators, in making the sale, and the defendant in purchasing, looked to the order of 1810, he should be concluded by it, and could not show any other order conferring authority upon the administrators to sell. It was further urged that the order of May, 1804, did not embrace the premises in dispute, and if it did, then that that order ceased to operate from and after the repeal of the law of 1795, “for the settlement of intestates’ estates.” The court sustained the objection, and overruled the evidence. In deciding the question, an opinion was expressed that the defendant, by the recital in his deed, must be precluded from giving in evidence any other order than that of December, 1810.

Counsel for the defendant contend, that the case was reserved, not so much for the purpose of determining whether this evidence was properly rejected, as for the purpose of 'determining whether

the opinion thus expressed is consistent with law; and insist that if it is not, a new trial should be granted. On the other hand, it is insisted for the plaintiff, that the whole case is before the court, and if, for either cause assigned, the evidence ought to have been rejected, then that the motion for a new trial should be overruled. From the recollection of the judge who presided at the trial, as well as from the nature of the case, we are induced to believe that the counsel for the defendant must have misunderstood the court. In the trial of a cause, a particular *item of evidence is offered, and objected to for a variety of reasons, one o'r more of which are sufficient to show that the evidence is improper. The court, in assigning reasons for the injection of the testimony, express an opinion upon some one point, which can not be sustained upon legal principles It is unreasonable, it is contrary to every day’s experience to suppose that, upon a motion for a new trial, the court will confine themselves to the consideration of the opinion thus expressed. The only proper inquiry in such case is, was the evidence properly rejected, and that without regard to the particular reasons assigned by the court when it was rejected. Any other course would lead to manifest injustice. It would be trifling with the rights of the parties.

We come now to the consideration of the question, whether the ■court mistook the law in refusing to admit the order of May, 1804, in evidence. That order is in these words: “ The administrators of the estate of Israel Ludlow, deceased, exhibit an account current, and pray the court to issue an order for the sale of the real property to defray the debts due from the estate, etc. John Ludlow and James Findlay sworn in court. The court order so much of the real property sold as will meet the said demands, except the farm qnd improved lands near Cincinnati, together with the house and lots in Cincinnati.” In offering this evidence, the defendant could have no other object in view, than to sustain his title, by showing an authority in the administrators to make sale of the premises in dispute. The administrators might have had authority to sell all the real property of the intestate, with the .exception of this identical land, and it could avail them nothing. The object to be effected by the sale is expressed in the order. It was to enable the administrators to pay the debts due from the •estate. It is true the amount of those debts is not stated, yet the .order is general to sell “so much of the real property” as will “meetthe said demands.” No specific property is referred to as that which shall be sold, but all the real property, “ except the farm and improved lands near Cincinnati, together with the house and lots in Cincinnati,” are in effect subjected tó sale. It would seem that there could be no difference of opinion with respect to the construction to be put upon this order; that there could be no doubt with respect to the property to be *sold, or with respect to that exempted from sale. It is of the same import it would have been, if couched in these words : “ The court order so much of the real: property sold as will meet the said demands; provided, the administrators shall not be permitted to sell the farm and improved lands near Cincinnati, nor the house and lots in Cincinnati.” The “ farm and improved lands,” as well as the “house and lots,” are exempted from sale. Such is the manifest intention, and such the construction which would be put upon it by any individual examining the order itself, without being influenced by any controversy connected with it. Ingenuity of counsel may possibly enable them to give it some other construction; but the court must collect the intention of the tribunal from which it emanated, by giving to the words and terms used their usual and appropriate signification. Will it be said it was the intention of the court to authorize the sale of “ the house and lpts,” or of all the “ improved lands ” except the farm, or of such “ lots ” as were not improved? Before I can be satisfied of this, I must be satisfied that the court did not understand the meaning of language. The “ house and lots,” the “ improved lands,” the “lots” whether improved or not improved, are real property. The administrators are authorized to sell the whole real property, exclusive of that saved by the exception, and after having given this general authority, it is not to be credited that the court would proceed to specify “the house and lots,” 'etc. But for the exception, these would have been condemned to sale; by it they are exempted.

The same construction was put upon this order in the case of the Heirs of Israel Ludlow v. C. and J. Johnston, 3 Ohio, 578. That case was repeatedly ar-gued, having been before the court for years. Every point necessary to decide the case was fully considered, and after much deliberation determined; and the decision upon each point fully concurred in by all the members of the court present when the case was finally disposed of. It may not be improper to say further that the court as at present composed are fully satisfied with the decision of that case. Such being the fact, we shall do nothing to disturb in any one particular the principles there settled.

*This construction being put upon the order of May, 1804, it is necessary to consider whether that order would be competent evidence to prove, or as conducing to prove, an authority in the administrators to sell a lot or “lots in,” or “the farm and improved lands near Cincinnati.” It is ai’gued that although the order might have been insufficient to sustain the defendant’s title, still it was competent evidence. Why? Because it is said there might by possibility have been some other evidence offered to show its relevancy. Such 'other evidence was not offered, and not having been offered, we are not to presume its existence; the legitimate presumption is, that it does not exist. At any rate, the court must decide upon what was, not upon what might have been offered. Testimony irrelevant to the matter in issue is incompetent. Proof of power to sell one tract of land, no more conduces to prove a power'to sell another than proof of the sale of one tract conduces to prove the sale of another. The court from which the order in question emanated, could not confer a greater authority upon the administrators of Ludlow, to dispose of his real estate, than what Ludlow himself might have conferred, in his lifetime, upon an agent, by letter of attorney. No one will contend that an authority given to an agent to sell one tract of land authorizes him to sell another.- Suppose Israel Ludlow in his lifetime, owning lands in the counties of Warren and Hamilton, had made an attorney authorizing him to sell his lands in Hamilton. The attorney, in virtue of this order, would most assuredly have no right to interfere with the lands in Warren. But suppose he had sold lands in Warren, and controversy should now arise between the heirs of Ludlow and the purchaser. Will it be said that the power of attorney authorizing the sale of the Hamilton lands would be competent evidence to prove, or as conducing to prove, an authority to sell the lands in Warren, and consequently to sustain the title of the purchaser? To my mind it is most clear it would not. So far as respects the Warren lands, the power of attorney would be a dead letter. It would be the same as if no such power had ever been made. It would have no relevancy to the matter in controversy, of course would be incompetent evidence. I should as soon as think, upon a question respecting the title to land in Hamilton county, of receiving in evidence a deed conveying *land in a different county, there being in no shape or manner any allusion, in the deed offered, to the land in controversy.

The same principle must apply to the order of May, 1804. In virtue of that order, the administrators of Ludlow claimed the authority to sell, and did sell, certain lands. In that order no allusion is made to “the farm and improved lands near Cincinnati,” nor to the “lots in Cincinnati,” any further than to exempt them from sale. And it would be strange that this order should be received in evidence to prove an authority to do an act which it expressly provided should not be done. If, then, .the premises in controversy are within the exception contained in the order, as construed by the court, the evidence was properly overruled, being irrelevant to the matter in dispute.

Whether the premises are within the exception remains to be considered. And here it may not bo improper to remark that in determining whether the court erred in rejecting the evidence, we must take the case as.then presented, without reference to the evidence said to have been newly discovered. Most, if not all the towns which have been laid out in this state, have been surveyed into in and out-lots, both, however, being considered as constituting parts of the town. On December 6, 1800, the general assembly of the territory passed a law “providing for recording town plats,” requiring, among other things, that the map or plat to be recorded, should “ set forth and describe ” the lots intended for sale by their progressive numbers, etc. In practicing under this law, it has ever been the custom to “set forth and describe” both in and out-lots upon the recorded plat. In pursuance of the provisions of this law, the town plat of Cincinnati was recorded. At an early period, town property was withdrawn from taxation for 3tate purposes, and subjected to taxation for county purposes. In levying the county tax, both in and out-lots were by statute made liable. All these circumstances go to show that, by our policy, out as well as in-lots have been, and are to be, considered as lots in town. An authority to sell lots in town would authorize the sale of either kind. An exemption of lots in town from sale would exempt either kind. When this cause was in trial to the jury, the recorded plat of Cincinnati was before the court. Upon that plat the premises in controversy are *“ set down and described ” as an out-lot in the town. In truth it did not appear to be controverted that such was the fact. It was so considered by the court, and correctly, according to the evidence then before them. The premises then being a lot “in" Cincinnati, and within the exception of the order of May, 1804, that order did not authorize the administrators of Ludlow to make sale of this land; on the contrary, it, in effect, prohibited such sale. It is irrelevant to the matter in controversy between these parties, consequently incompetent evidence, and was properly rejected by the court.

Whether the opinion incidentally expressed by the court, as to. the effect of the recital in the defendant’s deed, was or was not correct, we do not undertake to determine. It is unnecessary inasmuch, as for the reasons already assigned, the evidence was properly rejected. Nor shall we express an opinion as to the effect of the repeal of the law of 1795, upon the order of 1804. This presents an important question, and as we are informed that much property depends upon its determination, we are the more anxious to hear every argument which can be urged, before it shall finally be decided.

I now come to the consideration of the motion as founded upon the discoveiy of new and material evidence. Motions for new trials are addressed to the discretion' of the court, and unless founded upon some supposed error of the court, will be granted or refused, as the justice of the case may seem to require. A jury may decide against strict law, or against the weight of evidence, and still substantial justice may have been done. Under such circumstances a court would be unwilling to disturb their verdict. When the motion is grounded upon the discovery of new and material evidence, our practice requires that newly discovered evidence should be disclosed. This is required that the court may be enabled to form an opinion, whether, by the introduction of such evidence, a different verdict ought to be obtained. In considering the motion, the court will not inquire, whether, taking the newly discovered evidence in connection with that exhibited on the trial, a jury might be' induced to give a different verdict, but whether the legitimate effect of such evidence would be to require a different verdict. In the trial of issues in fact, the court judge of *the competency, the jury of the credibility and effect of testimony. But after verdict, when the motion for a new trial is considered, the court must judge not only of the competency, but of the effect of evidence. If, with the newly discovered evidence before them, a jury ought to have come to the same conclusion they have done, it would Bo worse than useless to grant a new trial. The effect would be to add to the expense of the litigation, and delay parties in obtaining their rights. On the trial of this causo, the evidence showed the premises in controversy to be a “lot in Cincinnati.” The design in introducing the new evidence is to prove that such is not the fact. But would the legitimate effect of this evidence be to require a different verdict? The premises, if not “ in,” are certainly near Cincinnati. On the trial they were proved to have been improved prior to the date of the order of May, 1804. By the terms of that order, “ improved lands near,” as well as “lots in” Cincinnati, are exempted from sale. The introduction of the newly discovered evidence, therefore, taken in connection with that exhibited on the trial, could not avail to. sustain the defendant’s title. There would be the same want of evidence to show an authority in the administrators to make sale of the premises. It would be useless, therefore, to have a new trial.

The motion is overruled, and judgment must be entered on the verdict.