Kruse v. Chester

Thornton, J. Ejectment for a parcel of land in the county of Kern. The defendants also filed a cross-complaint, which was answered by the plaintiff. The plaintiff had judgment for a portion of the premises sued for, and for the other portion judgment passed for defendants. A motion for a new trial made by defendants was denied, and this appeal is prosecuted by defendants from the judgment and the order denying a new trial.

The statement was properly settled and allowed, and the motion to strike out is denied.

There was no abuse of discretion in allowing, at the trial, plaintiff to amend his answer to the cross-complaint.

The patent to Baker did not include any portion of the lands in controversy, and was, therefore, properly excluded.

The issues arising on the cross-complaint and the answer to it were tried first in order, and as to those issues the defendants offered in evidence the record of a deed from the recorder’s office of the county of Kern, from George B. Chester to Julius Chester, bearing date the third day of January, 1873, which deed purported to have been executed and acknowledged, and is claimed by defendants to have been recorded in vol. 5 of Deeds in said recorder’s office, at page 171, on the 10th of January, 1876. It was claimed by defendants that this record contained a description of the property conveyed by the deed in the following words: “ United States lots, number one, two, three and four, in east half of section thirty, town, twenty-nine south, range twenty-eight east, Mount Diablo meridian.”

To the introduction of this record plaintiff objected, on the ground that it was incompetent, irrevelant and immaterial; that it conveyed no part of the land in controversy; and claiming that the description in the record offered was as follows : “ Unit[355]ed States lots number one, two, three and four, in east half of section thirty-four,” etc.

At this stage of the trial plaintiff moved the court that before passing on the admissibility of the record offered, it suspend the order of proof, and permit plaintiff to offer the testimony of experts in deciphering handwriting. The court granted the motion, and defendants excepted.

It was contended by plaintiff that there had been an erasure and alteration of the record, and as to this we find no error in having the testimony of experts. The witnesses were competent to testify, and there was no error in receiving their evidence.