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Opinion of the Court.
quently, Mrs. Scheen did prosecute in the District Court of the parish of Red River her claim under the mortgage, which is now the subject of controversy, and that case, which also went to the Supreme Court of Louisiana, and is reported in 36 La. Ann. 217, was decided in her favor as to the validity of the mortgage. The court says: “The greater part of the indebtedness claimed grows out of the husband collecting and using the moneys realized on promissory notes taken on the sales of lands, and alleged, as stated, to have been donated to the plaintiff.” The court says further : “ The validity of these
" donations is not questioned by the donor nor his heirs, nor his creditors, and we cannot perceive any right in the creditors of Scheen to raise such objection. It is sufficient that the husband received or collected the funds in question as agent of his wife, and under color of the right claimed by her and recognized by him.” “ The most serious contest,” says the court, “ is in regard to the legal mortgage claimed. One of the grounds was that it was not inscribed prior to the 1st of January, 1870.” To this the court replies “that the omission to register at that time only deprived the mortgage of force with respect to third persons, who at that date had mortgages or pledges upon the property of the husband that are so far superior to the claims of the wife. So far as relates to the husband and his property, the mortgage in favor of the wife, if there existed one, continued to exist without registry, and if recorded subsequently took effect as to third persons from the date of its registry. The evidence of plaintiff's legal mortgage against her husband was recorded in the parish of Red River in 1879, and its effect upon the immovables in that parish surrendered by the insolvent was properly recognized by the judgment.” There was then considered a question as to the registry in the parish of Bienville, which seems not to have been proved, and which was left open for further consideration. Although the direct question of the effect of the prior conveyance of Scheen as a dation en paiement is not referred to in this last report, it is obvious that the whole case was a proceeding in the tenth district court of the parish of Red River in regard to the rights of the syndic Chaffe in this property;
Opinion of the Court.
and, in the one case, that part of it which related to the dation en paiement, the court in the first of these reports declared that conveyance void, but remitted Mrs. Bradley to her rights, if she had any, under the mortgage inscribed April 30th, 1879; and that, when the proceedings to enforce that right came before the same court, it declared the mortgage to be valid for all property within the parish where it was recorded. It must necessarily have considered the effect of the previous conveyance in payment which it had set aside, upon the mortgage it now declared to be valid. It can hardlys be believed that if that prior conveyance constituted any lawful obstruction to the right of Mrs. Bradley to record and assert her mortgage, which the court said had existed long prior to any of these proceedings as between her and her husband, and which was made effectual when it was recorded, it would not have been considered and referred to. It is a fair, if not a necessary inference from these two cases, that the counsel engaged in them and the court which decided them did not perceive in the conveyance of Scheen to his wife anything which defeated her right to the mortgage for her dotal or paraphernal property. The question as to the validity of that mortgage after the court had set aside the conveyance as dation en paiement was precisely the same as the one in the Circuit Court of the United States, whose decree we are called to revise, and we think we are safe in following the decision of the Supreme Court of Louisiana on the same facts under Louisiana law. The result of these considerations is, that The decree of the Circuit Court dismissing Mrs. Bradley's
bill is reversed, and the case remanded to that court for further proceedings.
No. 119. Argued November 18, 1889. – Decided December 9, 1889.
Before former declarations of a witness can be used to impeach or contra
dict his testimony, his attention must be drawn to what may be brought forward for that purpose, with particularity as to time, place and circumstance, so that he can deny it, or make any explanation tending to
reconcile what he formerly said with what he is testifying. After a witness' testimony has been taken, committed to writing and used
in the court, and by death he is placed beyond the power of explanation, then, in another trial had after his death, former declarations by him, whether by deposition or otherwise, contradictory to those made by him in that testimony, cannot for the first time be brought forward and used to impeach it.
This is the same cause brought here and heard at October term, 1884, and reported 113 U. S. 594. The case now made is thus stated in the opinion of the court:
This is an action of ejectment brought by Watson, the original plaintiff, in the District Court for the county of Bell, in the State of Texas, and afterwards removed into the Circuit Court of the United States for the Northern District of that State. It was twice tried before a jury, which failed in each of these trials to come to an agreement. It was tried a third time, which resulted in a verdict and judgment for the plaintiff. A writ of error was taken to that judgment, by which it was brought to this court and reversed. The case is reported as Ayers v. Watson, 113 U. S. 594. It was thereupon remanded to the Circuit Court for a new trial, where a verdict was again had for the plaintiff, and the judgment rendered on that verdict is before us for review.
The details of the controversy may be found in the report of the case above mentioned. While it was pending in the District Court of Bell County the following agreement between the parties was made, which simplifies the case very much:
Statement of the Case.
“A. E. Watson
Frank Ayers, et al.
“It is agreed and admitted by the defendants, for the purpose of this trial at this term of the court, that A. E. Watson, plaintiff in this cause, is entitled to all the right, title and interest granted by the State of Texas to the heirs of Walter W. Daws on September 16, A.D. 1850, said land patented being onethird of a league, described in said patent No. 542, vol. 8, and which said land is described in plaintiff's petition ; but defendants say that said one-third of a league of land so patented as aforesaid to the heirs of Walter W. Daws is covered by the grant of the government of Coahuila and Texas to Maximo Moreno of eleven leagues of land, as set forth more fully in defendants' petition; which said eleven-league grant is an older and superior title to that of plaintiff, and the title to which is in the defendants in this cause.
“X. B. SAUNDERS,
“ Att's for defendants.” By this agreement it will be seen that the sole question at issue was whether the land in controversy was covered by the eleven-league grant to Maximo Moreno. A plat of that survey is found in the bill of exceptions. On the trial which resulted in the judgment, which we are now called to reconsider,
as we understand it, was the fourth time the case had been tried by a jury, the defendant introduced the deposition of F. W. Johnson, the surveyor who had made the survey under the Moreno grant. It seems that his deposition had been taken twice in this action, and, though the details of those trials are not before us, it had no doubt been used in them. But prior to the trial which we are now reviewing, he
appears from the bill of exceptions that in these depositions he had been cross-examined by plaintiff's counsel. Plaintiff in rebuttal to this testimony of Johnson offered
Statement of the Case.
in evidence a deposition of the said Johnson taken in 1860, in a suit between other parties, in which his testimony with regard to the matters to which he testified in the depositions offered by defendant varied materially from these latter depositions. To the introduction of this deposition of 1860 the defendants objected, and, their objection being overruled, took this exception. As we think the judgment of the court below must be reversed on account of this ruling, all that relates to it in the bill of exceptions is here reproduced :
“It was admitted by both parties that the upper and lower corners on the river of the Maximo Moreno 11-league grant are extant as called for in the original grant to Maximo Moreno, and their corners are not in dispute.
“ The defendant read in evidence the depositions of F. W. Johnson, taken in 1878 and 1880, in which he testified that he was principal surveyor for Austin's colony.
The first survey made was the Maximo Moreno 11-league survey. This survey was commenced at the point opposite the mouth of the Lampasas River, as called for in the field-notes of the grant, and a line was run thence on the course called for in the grant the distance called for, the chain being used to measure the distance. The northwest or second corner called for in the grant was thus established by him, the distance giving out in the prairie. In running the west line I made an offset to avoid crossing the Leon River, which was about 50 or 60 vrs. wide. This offset was made soon after leaving the beginning corner, there being a peculiar bend in the river at that point. From the northwest corner thus established the second line was run the course and distance called for in the grant. Several streams were crossed on this line at distances not now recollected, and the northeast corner established on two small hackberries in Cow Creek bottom. From the northeast or third corner so established a line was run in the course called for in the grant to San Andres River. This last line was marked but not measured, because it was not usual or necessary to measure the closing line.
“It was admitted by the defendant that the distance as measured on the ground from the northeast corner to a creek