NANCY J. BRANSON and LOUIS BRANSON v. MATHEW CARUTHERS and ISABELLA CARUTHERS, 49 Cal. 374

By the Court, Crockett, J.: The first point of the defendants, to the effect that the judgment in the tax suit was void for want of a service of process, is answered by the case of Truman v. Robinson, 44 Cal. 623, in which we discussed the same statutes under which these proceedings were had. We there held that under the Revenue Act of April 4, 1864, a recital in the decree “that all owners and claimants of the property have been duly summoned to answer the complaint, and have made default shall be proof of those facts.” The first

section of the Act expressly so provides. (Statutes 1863-4, p. 399.) It is therefore unnecessary to invoke the general doctrine announced in Hahn v. Kelley, 34 Cal. 391., and other subsequent cases, as to the conclusive effect of the judgments of Courts of general jurisdiction. The statute having declared the effect of such recitals as proof in this class of cases, “ it is not within the province of the Courts,” as we said in Truman v. Robinson, “ to nullify this provision.” The second exception relating to the admission in evidence of the Sheriff’s deed, is untenable for the same reason.

The third and fourth exceptions are also without force. Louis Branson, at the instance of the defendant, having been made a party plaintiff with his wife, and the deed of gift having been produced by the plaintiffs at the trial, the bargain and sale deed from Reed to the wife was competent evidence, and the production of the deed of gift by the attorneys of the wife was sufficient evidence of its delivery and acceptance.

If the Court erred in its rulings in excluding certain questions propounded to the witness Caruthers, or the answers thereto, as set forth in the fifth, sixth, seventh and eighth exceptions, it was productive of no injury to the defendants, inasmuch as Caruthers was afterward permitted to testify fully to all the matters to which these exceptions relate. The question propounded to the witness, Reed, as shown in the ninth exception, was irrelevant and was properly excluded. The tenth exception, to the effect that the finding as to the possession of Mrs.

Bran-son at the commencement of the action was not justified by the evidence, and is untenable. Branson testified positively to her possession, and that he inclosed it for her. It was for the Court below to decide upon his credibility. The eleventh exception as to the delivery of the deed of gift need not be further noticed. The twelfth exception presents the most serious questions in the case.

The Court finds that at the time of the purchase by Branson from Reed, he (Branson) “was not in the employ of said defendants, or either of them, for any purposes connected with said premises (the land in controversy) nor at any other time.” This finding is attacked on the ground that it was not justified by the evidence, and we think the point is well taken.

One of the defendants, Mathew Caruthers, testifies explicitly to Branson’s employment to look after “our real estate business and all our business; we made a positive agreement that he should look after our real estate business, and do the best he could for us.” Another witness, Faivre, testified to a conversation with Branson, in which he said “that he was Mr.

Caruthers’ sole agent for real estate; that he had it all in his hands, and he showed me the map he had.” Another witness, Perrin, also testified to a conversation with Branson, in which “he said he was their (the defendants’) agent in real estate matters, and also their attorney.” The only evidence, of any importance, in rebuttal was that of Branson himself, who testified that he had been employed by the defendants as an attorney-at-law, to defend two suits against them in respect to other property than this, and had negotiated a loan for them upon a mortgage of other property.

But he denied explicitly any other employment or agency of any character.

His credibility, however, is much weakened by the fact that in his sworn answer to the cross-complaint he denies that the consideration paid to Reed was paid “out of the common property of the said Louis and Nancy Jane Branson, but he alleges that the same was paid for out of the separate funds of the said Nancy Jane Branson;” while, on his examination as a witness, he testified that the consideration paid to Reed was a gold watch and thirty dollars in cash, which were his own property; and the Court finds that he purchased the property for a valuable consideration, took a deed for it to his wife, and afterward conveyed it to her by a deed of gift.

The conflict between these two statements is apparent. Some misapprehension or misunderstanding must have occurred at the trial, and we do not think that evidence given under the circumstances can safely be relied upon as the basis of the judgment given below in favor of the plaintiff, or that the finding of the Court below is to be upheld here under the rule in respect to findings where there is a substantial conflict in the evidence. In our view of the case, the thirteenth exception becomes immaterial, and the fourteenth is untenable.

There is no rule of law which prohibits an attorney of record who is a witness in a cause from summing it up before the Court or jury; and the rule of Court which is invoked allows it to be done “by permission of the Court.” In this case the permission was granted. The plaintiff’s motion to strike out the defendants’ bill of exceptions is denied. Order and judgment reversed, and cause remanded for a new trial. Neither Mr. Justice Rhodes nor Mr. Justice Niles expressed an opinion.