Marshall v. Hancock

Works, J. Action to quiet title. Judgment for defendants. Motion for new trial overruled. Plaintiff appeals.

The controverted question in the court below was as to the genuineness of a deed from one Michael White and wife to Henry Hancock, under which the defendants claimed to be the owners of one half of the real estate in controversy. The deed appeared upon its face to have been regularly executed and acknowledged. The plaintiffs claimed it to be a forgery, and that Michael White was out of the state at the time it purported to have been signed and acknowledged. The court below, after hearing testimony as to the execution of the deed, held the same to have been executed and admitted it in evidence.

The appellants assign several errors upon rulings made during the hearing, and claim that the decision of the court that the deed was genuine was not sustained by the evidence. A witness called by the plaintiff testified that he knew White, that he was at White’s house, on the ranch, cultivated his land, and had a conversation with him. He was then asked what the conversa[84]tion was. To this question the defendants objected, and the objection was sustained. This is assigned as error. We do not know from the record before us whether the court erred in this ruling or not. Where the question itself does not indicate whether the answer to it will be material evidence or not, the party seeking to introduce the evidence must, in order to present the question to this court, make an offer of what he proposes to prove, so that the court below and this court can determine whether the proposed proof is material or not. There is nothing in the record to show what the proposed testimony was. The question indicated nothing of the kind. The witness is asked for a conversation between White and himself. The conversation, if there was one, may have been about a matter entirely aside from the matter under investigation. Therefore, the record fails to show any error in this ruling.

In order to show the absence of White at the time the deed purported to have been executed, the plaintiffs proved by his wife, that he left home, and that she accompanied him part of the way. She was then asked if, when she bid him good by, he told her where he was going. This was objected to, and the objection sustained. This question is like the one above referred to. There was no offer to prove any statement that would have tended to corroborate the testimony of other witnesses that he went to Lower California, nor did the question indicate that such would be her answer. We cannot assume error in order to reverse the case, nor can we, for the purpose of sustaining the appellants’ position, presume what he fails to show, viz., that the answer of the witness would have been material if it had been allowed.