77 S.E. 305 | N.C. | 1913
This action was brought to cancel two deeds made by Mrs. A. G. Daniel to her daughter, Ida Dixon, on the ground of mental incapacity of the grantor and undue influence exercised in procuring the deeds. Issues were submitted to the jury, and answered as follows:
1. Was Mrs. A. G. Daniel, the grantor named in the paper-writings referred to in the pleadings, so lacking in mental capacity, 30 November, 1904, that she could not make a deed? Answer: Yes.
2. Did the defendants procure the said paper-writings to be signed by Mrs. A. G. Daniel by fraud or undue influence, as (379) alleged? No Answer. *308
3. Was the consideration for the deed in fact paid or performed? No answer.
4. What has been the average rental value of the lands described in the pleadings from 30 November, 1904? Answer: $150.
Judgment for plaintiff, and appeal by defendant.
After stating the case: There are seventeen exceptions to evidence, and all of them fall within one of three classes: (1) If question, to which objection is taken, is not answered, and there is nothing to show what evidence was expected to be elicited, the objection fails. S. v. Leak,
It is not what is asked a witness that constitutes evidence, but the answer, viewed in connection with the question; and if we do not know what the answer will be, we cannot say whether or not it would be competent, and, therefore, whether any harm has befallen the party by its exclusion (Bost v.Bost,
(380) It is not necessary to consider these exceptions seriatim, as they are plainly untenable under the rules above stated, and are, therefore, overruled collectively. In doing this, we concede the principle and are not inadvertent to it, that mental capacity or incapacity may no be shown by opinion or nonexpert testimony. While the writer did not altogether agree with the Court in some of the cases establishing the rule, it has been settled that such testimony is inadmissible. Whitaker v.Hamilton,
It was not reversible error to refuse the motion of defendant to add the words "or waived" to the third issue, as the jury found with the plaintiff upon the first issue, which finding wants decisive of the case, and *309
the error, if any, wants harmless. There was no use in inquiring whether the condition of the instrument had been waived, if it was not her deed; and the same may be said as to the nineteenth exception, which was taken to the submission of the second and third issues. It was immaterial to inquire as to fraud or undue influence if Mrs. Daniel did not have sufficient mental capacity to execute the deed. Perry v. Insurance Co.,
Defendant's first and third prayers for instructions were argumentative. and therefore might well have been refused, but they were substantially given in the charge. The presiding judge was not required to pursue the language of the prayers. He had the right to choose his own words in stating the law arising upon the evidence, and if a proper instruction embodied in a prayer is given in substance and effect, without its force being materially weakened by reason of any change in the phraseology, it is all the law requires and all the party can ask. Lynev. Telegraph Co.,
The defendants further requested the court to direct the jury to answer the second issue "No" and the third issue "Yes." This prayer was properly refused, as there was some evidence to support the plaintiff's contention as to these issues (Bellamy v. Andrews,
The jury, after retiring to their room, came back into court and requested the judge to instruct them as to the effect of answering the first issue in the affirmative. We do not see how either of the parties could be harmed by the explanation of the court. The response of the judge was, that if she did not have sufficient mental capacity to execute I deed, it would be void, and if she did, of course, it was valid. He had so substantially charged the jury before. The first issue was negatively worded, and the jury were practically told that they need not answer the second and third issues if their answer to the first issue was "Yes," but if it was "No," they should then consider and answer the other issues as to undue influence and compliance with the condition of the deed.
The other exceptions are merely formal, and are fully covered by what we have already said.
No error.
Cited: Armfield v. R. R.,