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
MR. JUSTICE FIELD delivered the opinion of the Court.
This is an action of ejectment to recover the possession of
certain real property situated in the County of Contra Costa, in
the State of California. The plaintiff below, the defendant in
error in this Court, deraigned her title from the Mexican
government, through a grant issued in August, 1841, by Juan B.
Alvarado, then Governor of the Department of California, and sundry
mesne conveyances from the grantees. It does not appear from the
record that the grant was ever confirmed by the Board of Land
Commissioners appointed under the Act of March 3, 1851, for the
investigation of titles to land in California derived from the
Spanish and Mexican governments, or was ever presented to the board
for its consideration, and it is the absence of any averment in
these particulars which constitutes the first ground urged by the
counsel of the plaintiffs in error for a reversal of the judgment.
His position is that under the act of March 3, 1851, if the grant
were not presented within the period there designated, which period
had expired when this action was commenced, the land was to be
deemed a part of the public domain, and that no presumption is to
be indulged in respect to such presentation in the absence of any
averment on the subject. It is a sufficient answer to this position
that it does not appear from the record to have been urged in the
court below. It may be that the objection was not taken from the
knowledge of the parties that the grant had been confirmed, and
that proof of the fact could be readily produced. Objections of
this kind cannot be heard for the first time in the appellate
court. To entitle objections to consideration here, they must be
presented to the court below in the first instance, at least if
they are of a kind which might have been there obviated.
Of the intermediate conveyances from the grantees, through which
the plaintiff below traced her title, one was produced and read in
evidence, upon proof of its execution by one of the grantors,
furnished by the certificate of a notary public. Objection was
taken to the sufficiency of this proof, counsel contending that the
execution should have been proved by
Page 68 U. S. 706
calling the subscribing witness. The objection is answered by
the statute of California, which expressly provides for the
admission in evidence of conveyances of real property when verified
by certificates of acknowledgment or proof of the execution by the
grantors before certain officers. [
Footnote 3]
It appears that the subscribing witness to the deed introduced
was present in court during the trial, and was examined with
reference to certain matters, but not touching the execution of the
deed. The defendant thereupon claimed the right to cross-examine
him with reference to such execution. The court held that the
defendant must, for that purpose, call the witness, and could not
properly make the inquiry upon the cross-examination. In this
particular, the ruling of the court below was correct. The rule has
been long settled, that the cross-examination of a witness must be
limited to the matters stated in his direct examination. If the
adverse party desires to examine him as to other matters, he must
do so by calling the witness to the stand in the subsequent
progress of the cause. [
Footnote
4]
Judgment affirmed.
[
Footnote 1]
First subdivision of §§ 4 and 29.
[
Footnote 2]
The word in the statute as
printed is "hereinafter,"
but that word makes no proper sense in connection with the
subsequent parts of the law, and the Supreme Court of California
has declared that thus printed it is either an error of the press
or a copy of an erroneous enrollment; that the word should be
"herein," as I have given it in the text.
Mott v.
Smith, 16 Cal. 522.
[
Footnote 3]
Act of California concerning conveyances, of April 16, 1850, §§
4 and 29.
[
Footnote 4]
Philadelphia & Trenton
Railroad v. Stimpson, 14 Pet. 461; 1 Greenleaf on
Evidence 445.
