Houghton v. Jones
68 U.S. 702 (1863)

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U.S. Supreme Court

Houghton v. Jones, 68 U.S. 702 (1863)

Houghton v. Jones

68 U.S. 702

Syllabus

1. This Court will refuse to consider objections to the documentary evidence of title produced on the trial of an action of ejectment unless they are presented in the first instance to the court below, if they are of a kind which might have been there obviated.

2. By the law of California, deeds conveying real property may be read in evidence in any action when verified by certificates of acknowledgment, or proof of their execution by the grantors before a notary public.

3. The right to cross-examine a witness is limited to matters stated in his direct examination.

By the Act of Congress of March 3, 1851, "to ascertain and settle the private land claims in the state of California," it is provided

"That each and every person claiming lands in California by virtue of any right or title derived from the Spanish or Mexican government shall present the same to the commissioners,"

&c., who are directed to examine into and "decide upon the validity of the said claim." And it is further declared that

"all lands, the claims to which shall

Page 68 U. S. 703

not have been presented to the said commissioners within two years after the date of the act, shall be deemed, held and considered as part of the public domain of the United States."

With this act in force, Mrs. Jones brought ejectment, in 1860, against Houghton and another, for land in Contra Costa County, in the State of California. She deraigned title from the Mexican government, through a grant issued in August, 1841, by Juan B. Alvarado, then Governor of the Department of California, and by sundry mesne conveyances from the grantees. It did not appear on the trial below that the grant had ever been laid before the Board of Commissioners, as required by the act above quoted, or in any way passed on by it. But no objection was made on the trial to the grant from this want of presentation to the board, or consideration by it.

One of the conveyances through which the plaintiff, Mrs. Jones, claimed was read in evidence, on proof of its execution, certified by a notary public. It is necessary, in that connection, to mention that a statute of California, "concerning conveyances," approved April 16, 1850, contains the following enactments: [Footnote 1]

"SECTION 4. The proof or acknowledgment of every conveyance affecting any real estate shall be taken by someone of the following officers: 1. If acknowledged or proved within this state, by some judge or clerk of a court having a seal, or some notary public or justice of the peace of the proper county. . . ."

"SECTION 29. Every conveyance, or other instrument conveying or affecting real estate, which shall be acknowledged, or proved and certified, as herein [Footnote 2] prescribed, may, together with the certificate of acknowledgment or proof, be read in evidence without further proof. "

Page 68 U. S. 704

The subscribing witness to the deed thus read was in court, and had been examined by the plaintiff about certain matters, but not about the execution of the deed. The defendant proposed to cross-examine him upon such execution, which the court would not allow him to do, deciding that if he wished to examine the witness at all upon a point not raised in the examination-in-chief, he must call him anew, and so make him his own witness.

The plaintiff having had judgment, and the defendant having sued out a writ of error, three questions were now here made; the first question having been raised on the argument in this Court for the first time in the case.

1. Whether this want of presentation of the grant at any time to the Board of Commissioners was fatal to it?

2. Whether the deed was properly acknowledged by the laws of California.

3. Whether the court rightly refused to let the defendant cross-examine the witness in the circumstances stated.

Page 68 U. S. 705

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