Opinion
Appeal from a judgment of the Superior Court of the city and county of San Francisco.
COUNSEL
The trial court erred in allowing the plaintiff to prove the payment of taxes. (Davis v. Perley , 30 Cal. 635; Davis v. Baugh , 59 Cal. 579; Tillotson v. Prichard , 60 Vt. 94; 6 Am. St. Rep. 96; Ware v. Brookhouse , 73 Miss. 456; Nicholson v. Tarpey , 70 Cal. 608; Reed v. Field , 15 Vt. 672; Pier v. Duff , 63 Pa. St. 63.) The court also erred in refusing to admit in evidence the inventory and appraisement. (Insurance Companies v. Weides, 14 Wall. 375; Guy v. Mead , 22 N.Y. 462; Aeklen's Ex'r v. Hickman , 63 Ala. 494; Webster v. Clark , 30 N.H. 253; Halsey v. Sinsebaugh , 15 N.Y. 485.)
J. M. Seawell, for Appellant.
Joseph Naphtaly, and Edward R. Taylor, for Respondent.
Proof of the payment of taxes by the plaintiff was properly admitted. (Thompson v. Stewart, 5 Litt. 5, 6; Martin v. Simpson, 4 McCord, 262; Doe ex dem. Human v. Pethit, 5 Barn. & Ald. 224; Jackson v. Vredenbergh, 1 Johns. 159.) The inventory was not admissible in evidence. (Aeklen's Ex'r v. Hickman , 63 Ala. 494; Code Civ. Proc., sec. 2047.)
JUDGES: In Bank. De Haven, J., dissent from the judgment. Mr. Justice Harrison, being disqualified, did not participate in the decision.
OPINION
THE COURT [31 P. 562] This cause was heard and decided in Department One. We are satisfied with the views therein expressed and the conclusion reached; but in support of the ruling of the court below in excluding the inventory offered in evidence by the defendant, we cite the following cases: Leighton v. Wike, 4 Serg. & R. 204; Aeklen's Executor v. Hickman , 63 Ala. 494. The rule in New York has been changed (Guy v. Mead , 22 N.Y. 466); but our code seems to indorse the rule followed in Pennsylvania and Alabama, and which formerly prevailed in New York. (Code Civ. Proc., sec. 2047.)
The judgment and order are affirmed.
The following is the opinion above referred to, rendered in Department One on the 6th of February, 1892:
The Court. -- This is an action of ejectment to recover a lot of land situate on the southeast corner of Van Ness Avenue and Turk Street, in the city and county of San Francisco. The answer denies plaintiff's alleged ownership and right of possession of a certain portion of the lot described in the complaint, and sets up the statute of limitations. (Code Civ. Proc., secs. 318, 319.) There was a general verdict in favor of the plaintiff, and a judgment was entered thereon, from which the defendant has appealed.
The basis of plaintiff's title is the prior possession of himself and his grantors. It is claimed by appellant that the evidence is insufficient to show that either the plaintiff or any of his grantors ever had the actual possession of the land. We have carefully examined the evidence in the record, and think there is sufficient evidence to support the verdict.
We do not think the court erred in excluding the inventory, or in rejecting the proffered testimony of the witness Rogers. The inventory was admissible in evidence only as memoranda to refresh the memory of the witness. It was not competent evidence to prove the facts stated in the inventory itself. The defendant was not injured by the rejection of the testimony, because the witness had already been permitted to testify to all he could have testified to, using the inventory as a memorandum.
Exceptions were taken to some of the instructions of the court to the jury; but we think, taken as a whole, they are fair and correct.
It is claimed that the court erred in charging that the plaintiff had made out a record title. It is true that the court did say that "the plaintiff has made out a record title to the land in controversy"; but later on, when attention was called by an exception to that portion of the charge, the court said: "I do not remember my exact words. I say I have decided here, as the deeds were offered in evidence, that the record title was complete from Mr. Beideman's time down to the plaintiff in this case. Whatever title Beideman had at the time of his death, the records show that the plaintiff has acquired whatever title Mr. Beideman had." This latter statement was strictly correct, and must have been understood by the jury.
We do not think the court erred in permitting the plaintiff to prove payment of taxes by Brumagin. The evidence was admissible to show the nature and character of the claim, and that it had not been abandoned. The instructions of the court on the subject of taxes were correct.
The judgment and order are affirmed.
Mr. Justice Harrison, being disqualified, did not participate in the foregoing opinion, and Mr. Justice McFarland acted in his place.
Rehearing denied.