126 S.E. 742 | N.C. | 1925
Civil action in claim and delivery, tried upon the following issues:
"1. Are the plaintiffs, Chandler and Ragland, the owners and entitled to the possession of the two mules in controversy? Answer: `Yes.'
"2. What was the value of said mules at the time of the seizure in claim and delivery? Answer: `$75.00.'"
Judgment on the verdict for plaintiffs, from which the defendant appeals, assigning errors. This is an action in claim and delivery, instituted by plaintiffs to recover, as mortgagees or by virtue of an unregistered retained-title contract, the possession of a pair of mules, sold by plaintiffs to one George Burnett, now deceased. On the trial, defendant contended that he had purchased the mules from George Burnett, for value and without notice of the plaintiffs' lien, and gave evidence to this effect.
Over objection, the plaintiffs were allowed to offer the testimony of two witnesses, tending to show what George Burnett had said to them on different occasions, and subsequent to the transaction, in regard to the alleged sale of the mules to the defendant. D. P. McKinne, a witness for the plaintiffs, testified to a conversation with the deceased in which he was informed that the mules had only been rented or hired to the defendant and that no sale of them had been made. A like conversation was detailed by the widow of the deceased. This evidence was incompetent as hearsay and should have been excluded. Barker v. Ins. Co.,
Speaking to a similar question in the case of Matthis v. Johnson,
And in Printing Co. v. Herbert,
There was error in the admission of this evidence as above indicated. It was no more than statements, given by the witnesses, of what they profess to have heard the deceased say. This is not the kind of evidence to be sanctioned by our courts of justice, for the determination of the rights of litigants. Satterwhite v. Hicks,
New trial.