Brooks v. Crosby

Appeal from the Twelfth Judicial District.

This is an action of ejectment brought by B. S. Brooks against William Crosby and others, executors of John Clyne, to recover twenty acres of land lying within the limits of the City of San Francisco. Plaintiff derives his title from one Foley, and on the trial sought to recover by showing a prior possession of the premises in Foley. Both Foley and Clyne, the defendants’ testator, were living upon the premises in 1853, and the principal question mooted was as to which of the two were in the actual possession at that time. The testimony was voluminous and conflicting, that of plaintiff tending to show that the occupation of Clyne was under Foley, and that of defendants that Clyne had a possession independent and adverse.

On the trial plaintiff offered in evidence the deposition of one Welch, which had been taken in another case. It had been stipulated by the parties in the present action, “ that the deposition of A. Welch, taken in the case of Zenos Coffin v. John Clyne in this Court, may be used in evidence with the same force and effect, and subject to the same exceptions and objections in all respects as if taken in this case.” Ho objection to the competency of the witness was taken in the deposition. From certain deeds which were in evidence it appeared that Welch had once been the owner of the premises by conveyance from Foley, and that he had only, so far as these deeds showed, parted with a portion of the title, still remaining the owner of an undivided interest. The deposition showed an examination of Welch upon the question of his interest in the same premises sought to be recovered in this action, in which he stated that he had once owned an interest but had sold it. Defendants objected to the reading of the deposition on the ground of interest in the witness; the objection was overruled and defendants excepted.

The plaintiff called as a witness one Shear, and in the course of his examination in chief a deed was introduced which showed that witness had once owned an undivided interest in the premises. Defendants cross-examined him at length on other matters, and then moved to strike out his evidence on the ground that he was interested, which the Court denied, and defendants excepted. Plaintiff then proposed to question the witness for the purpose of disproving his apparent interest. Defendants objected on the ground that the interest having been shown aliunde by a deed, could not be disproved by his own evidence. The Court overruled the objection and defendants excepted, and the witness then stated that he had sold all his interest to one Parsons before the commencement of the action.

The plaintiff, in making out his case, introduced evidence tending to show that Clyne had occupied the premises as tenant of Foley, and proved admissions of Clyne that he had paid Foley rent. The defendants’ evidence tended to disprove any tenancy. After defendants rested, plaintiff called in rebuttal one Harkness, and proposed to prove by him that he knew of Clyne having paid rent to Foley. Defendants objected on the ground that the evidence was not proper in rebuttal; that plaintiff having in his chief examination gone into this question should have exhausted his proof upon it. The objection was overruled and exception taken by defendants.