Ml;'Tch 3, 1887, after'the answer had med and issue thus joined in the statute so providing. It must be conceded that under such a statute the .petition for rell10valmust bem,ade and presented ]:)efore the time for answering had expired. But the statute has in effect provided that the filing of a written deml!-nd for jury trial is equivalent to. that. Each party is fully advised by.the terms of the statute that a demand for a jury trial must be made within 30 days after the filing of the report of the commissioners. If it is filed before the end of the 30 days, the defendant bas, till the last day to make and ,file his, petition for removal. If not. filed till tbe last day ,he must remove on tbat day, or his right so to do is lost. In other words, the defend(l.nt, the land-owner, who alone is entitled to remove the case, to the federal court, must do so after the proceeding.has taken on the .form of aauit at ltJ-w of a civil nature, and withio30 days after tbe filing .of the report of the commissioners. It seems to me that tbis view is.in harmony with the decisions of the court uO<:1er the statute of 1887. It is unnecessary to pass on any other question on thil. motion. The case must be remanded, and it is accordingly so orl!eted.
(District Court, N. D. California. March 2l},1892.)
. PRIVILEGED COMMUNICATIONS-HuSBAND AND WIFE-LETTERS IN POSSESSION OJ' ADMbtIflTRATOR. . , .
. .'. Code Civil Proc. CaL § 1881, prohibiting the examination of a husband or wife, or after marriago, as to communication!! between them during marriage, does not extend its protection to letters from one to the other found in the possessiOnof tpe Wife's administrato!' after both are dead. v. 23 Pac. 229, 83 Cal. 138, distinguished.
2. SAMli-EXAMINERS IN EQUITY.
Where the evLdence is being ;takenbeforean examiner, the letters, even if privi. leged, !!hould be produced before him and made part of the record, under tbe rule of eqUity practice which reqUires that evidence objected to and rUled. out sball be incorporated in the record, in order that the court may pass upon the ruling.
Compliance with the rule is especially necessary where the letters constitute the primary evidence of a fact in issue, since, if presented to the court and rejected, the foundation would then be laid for secondary evidence·
. In Equity. Bill by John Lloyd, as assignee ofJames Linforth, John Bensley, and L. B. Bencbley, copartne,rs, James C. Pennie, as administrator of John Bensley, and James C. Pennie, as administrator of Marian L.;J. M. Bensley, deceased. Heard on an order upon defendant, asadm.inistratorofMarian L. J. M. Bensley, deceased, to show cause wby he shoull! not be required to producein evidence certain letters written by John aMnsley to said Marian, his wife. Order made to produce the letters. Hemry CJ.Hyde, (w. a.Belcher, of counsel,) for complainant. Naphtaly, Freidenrich .4ck6rman, (Myrick Deering, of counsel,) fOI defendants.
LLOYD 'D. PENNlB. MORROW, District Judge. The defendant James C. Pennie, administrator of the estate of John Bensley, deceased, and administrator of the estate of Marian L. J. M. Bensley, deceased, having been sub. peened ,to appear before the examiner as a witness on the part of the and ordered to produce before such examiner certain letters written by John Bensley to his wife, Marian L. J. M. Bensley, appeared, and, on the advice of his attorneys, declined to produce s,aid letters; on the ground that they are confidential and privilegedcommllnications from husband to wife. The order to showcause why the ant should not be punished for contempt in refusing to produce such letters brings before the cburt the question as to whether such letters are privileged communications. ; To understand the position of the parties and the question involved, it is necessary to refer to the allegations of tlie bill in equity, in support of which these letters are d6mandedas dence. The bill was filed in this court February 25, 1890, by John Lloyd, as assignee of James Linforth, John Bensley, and L. B. Benchley, cOpartners under the firm name of Linforth, Kellogg & Co., against JaDiesC. Pennie, administrator of the estate of John Bensley, deceased, and JameS C. Pennie, administrator of the 6state of Marian L. J. M. Bensley, deceased. It appears from the bill that for several years prior to the 15th day of February, 1877 , John Bensley, L. B. Benchley, and James Lin· forth were engaged in business in San Francisco under the firm Ulime of Linforth, Kellogg & Co.; that on the, date last nllmed certain creditors of the firm presented and filed in this court a petition praying that the firm, and the individual members thereof, be adjudged bankrupts; that on the 27th day of February, 1877, the said firm of Linforth, Kellogg & Co., and each of the copartners, were declared and adjudged toM bankrupts, within the meaning and to the provisions of the vised Statutes of the United States; that on the 26th day of March, 1877, James C. Patrick and A.L. Tubbs were appointed assignees; that they took charge of the estate of said bankrupts, so far as theliklloWh, and entered upon the performance of their duties; that the said assignees proceeded with the administration and distribution of said estate ing to law,and declared and paid dividends to the creditors of the estate amounting to 4H per centum; that in 1887 Patrick died, and soon after Tubbs resigned, and thereupon John Lloyd, the complainant herein, became assignee of the estate by appointment; that John Bensley, one of the copartners of the firm, died intestate on the 14th day of June, 1889, and James C. Pennie was appointed administrator of his estate; that on the 30th day of December, 1889, Marian L. J. 1\L Bensley, the widow of John Bensley, also died intestate, and James C. Pellnie became the administrator of her estate. The bill alleges-
"That John Bensley and his wife. the said Marian L. J. M. Bensley, both well knOWing the financial embarrassment and condition of the said firm, and of the members thereof, as aforesaid, and well knOWing and anticipating that the said firm and its members would be forced into insolvency, planned a fraudulent scheme and device, perpetrated and carried out in the manner'
,to prevelltthe individual property:of the· smdJohn· Bensthe hands of the'llssJgneesof . bankrupts, and fr0in being undl'r sai4,a!lt,of congress, and the 'o.\iject of, and to impair arid h'indet: and 'unpede and delay the operation and effect of, and to evade the provisions of, said' act of congrl'ss, and to hinder and delay and defraud' aDd' cheat the creditors of said John Benllle)' said Lillforth, Kellogg & Co," ,For, the .purpose Qfcarryingoutthis fraudulent scheme, the bill further, in that, on,t,he 30th day ofDecember,A. D. 1876,and.: within six months before the filing of the petition against said bankrupta, and with a view of preventing the individual property of the said John Bensley from comiijg to the hands of the assignees of the said. bankrupts,and toprl'vent the said property from being distributed und.er said act of <longress, and to defeat the object of, and to impair and to hinder and impede and delay the operation and effect of, and to eyade the provisjons of, the said act of congress, and to hinder, delay, defeat, defraud, liInd cheat the said creditors, said John Bensley assigned, trllllsferred, and cOnveyed to one Orrin Curry certain valuable pieces olreal property located in, the city of San Francisco, and that the conveyance ot this property was without consideration, and was aeceptedand received by the.grantee with full knowledge of the fraud, intent, scheme, and device of the' Bensleys. It is also alleged that, after the adjudication in bankruptcy of the said John BenslE'Y and of the said firm of Linforth, Kellogg & Co., Bensley and his wife, fraudulently intending to deceive and deft'aud his creditors and the said assignees in bankruptcy, and to secure a restoration to Bensley of his individual property, which had vested in sai,d assignees by virtue of the bankru ptcy proceedings, induced the assignees and creditors to enter into an agreement with him for It release to him by said assignees of all his individual property, and for his discharge from all his debts; that such an agreement was entered into July 11, 1877, by the terms of which Bensley covenanted and any deficiency which might arise on the claims of the agreed to creditors the firm assets of Linforth, Kellogg & Co. and the individual assets of James Unforth and L. B. Benchley had been applied to the payment such claims; that this agreement was ratified and confirmed by this court, and Bensley discharged from his individual and copartnership debts, and thereafter the. assignees reassigned, transferred, and conveyed to Bensley all of his said property and estate which had become vested in the assignees by virtue of the bankruptcy proceedings; that, at the date of the adjudication of bankruptcy, Bensley was seized and posl'lessed or an estate of the value of $500,000; that after said property had been restored to Bensley, instead ·of managing it, and appropriating the proceeds, or so much thereof as might be necessary to the payment of the balance due the creditors of Linforth, Kellogg &,00., in accordance with his agreement with the assignee and creditors, he proceeded t6 carry out the frauduleJ;lt scheme devised by himself and wife, and conveyed all his property to his wife and others, without consideration, leaving no assets standing , his name at the time of his in
., . LLOYD f1. PENNtB;
death, June 14, 1889; and that MariaIiL.: iT., ¥.Bensleywasprivy Pl;trtt that time Bensley was adJudIcated a bankrupt, February 27 t l877, untIl day of his death, June 14, 1889, he was a non-resident of, and absent from, the'state of California; that during, that period he secreted himself frOlU,ihiscreditors, and intentionally.avoided coming within the state of California, well knowing that, if his residence were known, his creditol'Sand- his assignees would cornmenceproceedings against him; tbat there isa deficiency due. the creditors of the bankrupts of 52l pflr centum of their demands, amounting, with interest,to&275iOOO. The bill asks that a decree may be..entered declaring. thecagreementand oontractof the oreditors, the order. of this court ,ratifying said contract, and authorizing the assignees to transfer the issid property to Bensley, and the, conveyance and asslgntnent of the.assignees. in ;pursuance of said order, to 00 void and ofno effect, and declaring the present assignee to be the real owner of. the said, property, and entitled to the slunei that the, defendant' bedrdered ,and directed to. make,; ,execute, and, deliver to the said assignee a good and sufficient conveya.nce',of the lands and premises described in the bill, anddeHver over to the .said assignee the :said ·,pl'operty, .or the pl'Oceeds thereof heretofore coUected andreceived. It is claimed that, during the period cQvered by the fraudulent transactions mentioned in ,tbebiU,Marian t.. J. M. Bensley resided in California, and was acting as the agent of her husband, John Bensley, and that tha letters written to herby her husband, and now demanded as evidence, establish the agenoy and, prove the fraudulent transactions. ' , Section 858 of the Revised Statutes provides: "In the courts of the United States no witness shall beexclnded in any action on account of color, or,.in any civil action, because he isa party to orintereste<! in the issue tried: provided, that in actions by or against executors. administrators, or guardians, in which judgment may b,e rendered ,for or against them, neither party shaH be aHowed to testify against the other as to any t'ransaction with or statement by or ward, Unless called to' testify thereto b)' the opposite party, or required to testify thereto by the court. In all other respects the law of the state in which the COllrt is hel!'lshl\U be rules of decl.sion as to competency of witnesses in the courts of the Unittld. in trials at common law 'al)d in equityand admiralty."
, . . .
The defendant James C. Pennie, as administrator of the estate of Marian L. J. M. Bensley, is a competent in this case under this statute; but, under the last clause of the section just quoted, we must look totbe law of this state toasoertain whether his competency'as a witnesS·islimited with respect to the matter under consideration. Section 1881 of the Code of Civil Procedure of this state provides: "There are particular relations in which it is the policy of the law to encourage confidence and to prl'serve it inviolate; therefore a person cannot be examined as a witness in the following cases: (1) A husband cannot be examined for or against his wife· without her consent, nor a wifef6r or against her husband without his consent; nor can either, during the marriage or afterwards, be, without the consent of tha other, examined as to aUl com-
acti9n ()r proceeding for a crime com mitted by one llgainst the
by one t()the other during the marriage; but this exception to a civil action or proceeding by one against the other, nor to
It is clear that the language of this provision of the Code does not limit the competency of the defendant as a witness. The limitation is upon the husband and wife. Neither can testify for or against the other without the consent olthe other, nor can either,without the consent of the other,. be examined as to any communication made one to the other during marriage. Moreover, section 1879 of the Code of Civil Procedure provides that "all persons, without exception, otherwise than specified in. the next two sections, who, having organs of sense, can perceive, and,perceiving, can make known their perceptions to others, may be witnesses." The provision concerning husband and wife just cited is containedl in one of these sections designated as containing the only exceptions to the gerieral tule providing that all persons may be witnesses. Blit there is no exception in either section under which the defendant may be excluded or his testimony rejected. He is not privileged from testifying because of anyth,ingcontained in section 1881 of the Code of Civil 'Procedure, because he does not come within the description therein contained of the persons 'Who cannot be examined as witnesses. It is, however, contended' that the exception relating to communications between husband and wife extends to the communications themselves, and makes them privileged in the hands of the defendant, as administrator of the estate of the wife, to whom the letters were addressed. The case of People v. Mullings, 83 Cal. 138, 23 Pac. Rep. 229, is cited as declaring the law to that effect. In that case the defendant was charged with murder. He went upon the witness stand in his own behalf. Upon cross-examination, he was asked questions about conversations between himself and his'wife,'to which his counsd objected, on the ground not proper questions in cross-examination, and on the 'additional ground thatthey called for privileged communications, about which could not be eXamtned. 'rhe court, in commenting upon the privilege claimed for the defendant, said: , "The provisions of Qur.Co<ies on the subject of privileged communications between husband and wife are little more than a declaration of the common-law rule upon the SUbject, except in this respect: The privilege at common law did not extend to commnnications which were not in their nature 'confidentlal; and, although such communications were generally held to be confidential, yet some very difficult questions did occasionally arise as to t.he ,character of the communications; but our Code sweeps away that embarrassing distinction by extending the privilegl'l to any comm unication made by one to the other during the marriage."
The court then reviewed the decisions in a number of cases relating to privileged communications, and said: "AU along the line of the cases about communications between client and ,attorney it Wl!oS steadily argued on the one side that the statute only prevented t.be frpIU testifying, and that when the client was on the witness
LLOYD V. PENNIE.
"stand he could be' forced to disclose; and the constant answer of the other side, sustained by the courts, was, ·The privilege applies to the communication,' and it cannot be forced from either, party to the confidential relation. It is clear to us, therefore, that a defendant in a criminal case, who has offered himself as a witness in his own behalf, and who has not testified in chief to any communications between his wife and himself, cannot, without his con· sent, be examined by the state as to any such communications." It needs no argume:ntto show that this case does not support. the claim of the defendant that the letters are privileged in his hands. The statement of the court' that the privilege applies to the communication was not necessary to the'determination of the case. The point decided Was that the questions concerning conversations between the defendapt and his wife were not proper cross-examination. . . In Patrick, in the circuit court of the United States fOf the eastern of Missouri, (32 Fed. Rep. 368.) a motion 'was made to strike out 'certain exhibits. filed in the master's report of the testimony in the case. These exhibits were letters written by one of the .· 'ants to his wife, and the ground of the motion to suppress them was that they were "such communications as were protected by the pIe which the law throws ,between husband and wife." The wife had died pending proceedings for a divorce, and the man who professed to be the executor or administrator of her estate got hold of these letters, and, without any requirement of his office, but in a spirit of hostility to the husband, delivered them to the other side. He was not a party to the action, but was actingasa volunteer in production of the letters. Mr. Justice MILLER, in passing upon the lhOtion, said: ' "What might be the rule of law if this administrator had filed these letters in due course of administration for any useful purpose in a pUbllcoffice, and they had been obtained and copied by a third party, or if they had got intO the hands of tbe party who now seeks to use them in any appropriate and Innocentmanner, I am not prepared to say; but I do rule that, under the cir: cumstances in which these letters got into other hands, 'they ought not to be used as evidence." The learned judge expressly places his decision upon the circumstances of that case, which, differing materially from the case at bar, cannot be considered. AS authority in determining the question involved in this con· troversy. In Stein v. Bcrwman, 13 Pet. 220, the plaintiff having read in evidence the deposition of a deceased witness, the defendant called the wife of the deceased to prove that her husband has been bribed to give evidence iri that case,and also to prove that he had frequently told her he knew nothing of· the plaintiff or of another party. To this testimony an objec: tion wai'1 interposed, and the court held that the wife could not "either voluntarily be permitted, or by force of authority be compelled, to ,state facts in evidence which render infamous the character of her husband." In Lucasv. Brooks, 18 Wall. 436, the delimdant offered the of his wife to prove a part of his case. The court below excluded the deposition, and the supreme court held that, under the statute· of West
the arose, the wife could not be examined for or against her husband." Tbe law asstated"inthese 'last two cases, as, indeed, in all the cases cited bycounselfot defendant, is not disputed. 'Theysimply state the as declared by the Code of of this state, and as construed by, tpe Elupreme court in People v. Mullings, supra, to the effect that co'mmunications between hueband and wife "cannot be forced from either' plltty to the confidential relation." They do 110t sustain the position that the policy of the laW', as declared by the courts, places' the seaJ o(secrecy absolutely and forever upon the com, munieations between and wife. The, law, in fact, appears to be otherwise. Such communications are received, in evidence when produced. bypa,rties who ii,o not occupy the relation. In State '\T', BuffingtOn, 20 the defendant 'was being prosecuted critninally,' On the trial the prosecution introdUced in evidence a letter froni' the defendant,"tQ, his wi(e.' The defendant claimed that this letter was a confidenthU cotnmunication from himself, to his wife, and that' it was not90mpetent evidence against him. The letter was in the hands and 'custody of the prose0uting witness at the time it ""as introduced; !thad been previously sent through the post-office and by mail the defendant to his wife. The prosecuting witness receivel;! it fromthepost-office,properly directed to the defendant's wife. He delivered it to her, and she, after reading it, returned it to him, and he furnished it to the to be read in evidenee. It did not appear :tbnt either the :defeIidant or his wife had at that time any control over the letter. The court, hi 'passing upon the admissibility of the letter observed: " "It true tliata communication between husband and wife is a prlvileKEid'comqluqlGatiou.ButIt is privileged only while it remains within thpjr custody an/l control'. 'or while, it. temains within the custody and control of their' agentg'Qr', represe'ntatiyes, and just so far as it remains within the their agents or representatives." , custody lln4
A number of cases are cited by the court in support of this rule, al).d the statute Of the state of' Kansas is quoted, as follows: "In no Quesflall either[tbeihushandorwife] be permitted to testify concerningan;ycommunication ,made by one to theothe'tdllring the marriage. whether called while that l"elation existed or afterwards." Civil Code,§ 323. The court,referring to this statute, in connectiOli with another, relating to witnesses in criminal cases, says: "It wUlhe seen that these statutes do not go to the extent of excluding said letter. as evidence. While the Civil Code provides that neither the husband norwiffshall, as a evidence concerning confidential commuuieatHms, Jet it does not prOVide that others who may happen to be possessed- '01. such comm unications shall not do so."
In State. v. Hoyt, 47 The offered in his wif'e"which the state
518, tl)edefendant was on trial for murder. sundry )etters written by the defendant to admissions inconsistent with
the claim of the defendant· as to' his unconsciousness at the time of. the homicide and as to his:u:nsoundness ofm111d. To the introduction of the letter8the defendant objected. on the ground that the letters were confidential communications between husband and wife, and as such could not be used in evidence against the husband. It was not shown how the state obtained the letters, but the court overruled the objection and admitted the letters. The supreme court, in passing upon this ruling of the lower court, said: "In this fuling the court violated no rule of evidence. 'fhe question was not whether the husband or wife could have been compelled to produce this evidence. but whether. when the letters fell, into thehamls of a third person, the sacred shield of privilege went with tht'm. We think not. 1 Green!. Ev. § 254a. The fact that the communications in this case were written places them on no higher ground than if they WE're mE'rely oral. And, as to the latter. it is well settled that conversatiuns between husband and wife are not ,priVileged so as to prevent a third person, who overheard them, from testifying...
It will not be necessary to discuss all the cases cited as bearing on this question. For the present, it is enough to say that I do not think they establish the rule that communications between husband and wife are privileged in the hands of third persons; certainly not under a statute declaring the privilege in the language of the Code of this state. Moreover, the tendency of the privilege is to prevent the full discJosure of the truth, and it is there/()re to be strictly construed. Satterlee v. BUM. 36 Cal. .508; Foster v. Hall. 12 Pick. 89; Gower v. Emery. 18 Me. 82; Nias v. Railway Co., 2 Keen. 76. . It is to be observed, further, that these ietter.nhould be produced by the defendant whether admitted in evidence or not. This is a bill of equity, seeking to set aside certain conveyances in frand of creditors. It is part of compJainant's case here that Mrs. Bensley was acting as the agent of her husband in the execution of this frauduJent scheme. and that these letters establish the fact of the agency, and disclose the character of the transactions. They appear to be primary evidence of the facts. aIJeged. lind ought, therefor3. to be produced to the court for inspection. If then on account of their privileged character. the foundation will have been laid for secondary e\·idence. But, further than this. as a rule of practice, the deftmdant should produce the letters to th" examiner, that they may be made a part of the record. In Blease: v. Garlington, \)2 U. S. 8, the supreme court declared the rule with ,respect to the necessity of incorporating into the record testimony in equity cases objected to and ruled out. The court said: "If testimony is ohjected to and ruled ont, it must be sent here with the record. subject to the objection. or the ruling wiUnot be considered by us. Al'ast' wi.)l n"t be Bent have the rejel:ted testimllny taken. evell thongh we might. on examination, be of the «'pinion that the ohjection to it ought not to have bt'en snstahle'l. Ample having been ma,le by the if theyprefpr to "ules fot' taking tht' testimony and saving adopt some other mode ot prE'sellting their cast',' must be ('arefnl to Bee that it conf()ruu! in otller respects to the established practice of the court."
present case may be reviewed on appeal, iris the duty of the court, in accordance with the practice in equity, as stated by the suto direct that the defendant produce the letters, as depreme manded. The order will be made, however, without prejudice to the right of the defendaI.lt to renew the claim of privilege hereafter, by a motion to suppress the letters, at the proper stage of the proceedings.
(Circuit Court, D.Minnesota. April 14, 1892.)
:Whenthe records of a deed in two deed-books differ only In two material points in the description of the properly, and the date, grantors, grantee, consideration, acknowledgment, and signature of the notary are the same in each, the presumption. is, not that the first book contains the correct record and the other the record . of soine other deed or of the original deed after a change in the description has been made. but that they are records of the 'same deed, with mistakes in one of them; and in, seeking to determine in which of the two the mistakes are, the origi. nal deed' being lost, the court will consider the evidence afforded by the records themselves as to which has been more carefUlly registered, the situatiou of the property as described in each, and the condUct of the parties in reference to the property in dispute. '
2. SAME-EFFECT 011' RECORDING. Gen. St. Minn. 1878, p. 587, § 21, and ld. p. 805, § 96, do not limit the effect of the register's record of a deed as evidence to the first record of it, but give at least
. equal weight as evidence to later records properly made.
In Equity. Suit by James Stinson against Ormis H. Doolittle, Charles J. Doolittle, and others to correct a mistake in the record of a deed. Decree for complainant. This iaa suit in equity, and the complainant seeks a decree declaring that Il certain deed made by one Benjamin F. Hoyt and wife to David Schellenbarger, dated June 21, 1850, described and conveyed "fifteen and two ontl"hundredths acres off the south side of the north-west quarter of the north-west quarter of section number thirty, (30,) in township number twenty-nine (29) north, of range number twenty-two (22) west of the fourth principal meridian;" that this deed was by mistake so recorded in Book A of Deeds, pages 492 and 493, of the Ramsey and two one-hundredths county. records, that the same read @.<)res off' the north sirle" of the quarter quarter mentioned above; that spe},), deed did not in fact describe this north 15.02 acres of the quarter quarter mentioned above; that, so far as the same relates to this tract of, .land. this deed was Correctly recorded in Book K of the Ramsey cO;ulity records, at pages129 and 130, on October 6, 18.54; that the deOrmus H. Doolittle· and Charles J. Doolittle, who derive their title to the 15 .02 acres off the north side of said tract through a quitclaim deed from David Schellenbarger and Wife to Charles J. Doo-. dated September 10, 1888, and recorded August 22, 1889, in Book·227 .?f at page 543, be declll,red to have no title to this