Deaver v. Deaver

137 N.C. 240 | N.C. | 1904

Walker, J.,

after stating the facts. We do not see why the testimony of the witness Logan was not relevant and admissible, nor why he was not a competent witness. The testimony certainly tended to show that A. E. Deaver had agreed in the settlement with Logan, who had bought the defendant’s one-half interest, that in consideration of the sale to him of that interest he would pay the Lusk debt and satisfy the deed of trust, and it is not incompetent because it contradicts the recital in the deed, namely, that the $3,000 had been paid. Where the payment of the consideration is necessary to sustain the validity of the deed or the contract in question, the acknowledgment of payment- is contractual in its nature and cannot be contradicted by parol proof, but where it is to be treated merely as a receipt for money it is only prima facie evidence of the payment, and the fact that there was no payment, or that the consideration was other than that expressed in the deed, may be shown by oral evidence. Washburn thus states the rule, and the quotation seems to fit this case exactly : “Although it is always competent to contradict the recital in the deed as to the amount paid, in an action involving the recovery of the purchase-money, or as to the measure of damages, in an action upon the covenants in the deed, it is not competent to contradict the acknowledgment of a consideration paid in order to affect the validity of the deed in creating or passing a title to the estate thereby granted.” 3 Wash. R. P. (5 Ed.), marg. p., C14-. This passage from Washburn is quoted and approved in Kendrick v. Ins. Co., 124 N. C., 315, 70 Am. St. Rep. 592, and the authorities in support of the principle are there collected by the present Chief Justice. See also Harper v. Dail, 92 N. C., 397, where Ashe, J., states clearly the distinction recognized in the books between a case where the evidence would affect the validity of the contract, or deed, and one where it would not, but would only rebut the prima facie case made by the acknowledgment, treated as a receipt for money.

The assumption by A. E. Deaver to Logan of the Lusk debt was not within the Statute of Frauds. It was an original promise and not one superadded to the liability of R. M. Deaver. The intestate bought Logan’s interest in the land and, in consideration of the sale to him, promised to pay the Lusk debt. It seems to us that the case in this respect comes directly within the principle of Mason v. Wilson, 84 N. C., 51, 37 Am. Rep., 612, and Voorhees v. Porter, 134 N. C., 591, where other like cases will be found. The sale of the land to the intestate by Logan constituted a new and original consideration for the promise of the former to pay the Lusk debt, and is in no respect a promise to answer for the debt or default of another within the intent and meaning of the Statute of Frauds. If in the arrangement between the parties when the intestate acquired Logan’s interest he promised to pay the Lusk debt, it would indeed be unjust if he or his representative should be allowed to repudiate the promise and subject the defendant to the payment of damages.

If the facts are found to be as we have stated them, and tbe defendant merely held tbe legal title by agreement of all tbe parties and conveyed it by tbeir direction there was no breach of tbe covenant, for it was not tbe defendant’s duty to pay tbe debt. If tbe defendant did not in fact receive the consideration recited in tbe deed, there is no rule of law, and certainly none of equity, which forbids him to show the truth of tbe matter in order to defeat tbe enforcement of an inequitable claim.

We are at a loss to understand bow the doctrine of parol trusts has any bearing upon tbe case. There is no attempt here to establish any such trust. Tbe person supposed to be charged with tbe trust, that is, tbe defendant, admits it. Tbe law concerning parol proof of trusts has nothing to do with tbe case, as we view it. Tbe sole purpose is to show tbe entire nature of tbe transaction from its inception, when the defendant bought from Eoberts and took tbe legal title for himself and bis brother, the intestate, to its conclusion, when tbe alleged promise was made by tbe intestate to pay the Lusk debt. We cannot therefore conceive how the fact that an admitted parol trust comes incidentally into tbe case, as part of tbe proof of tbe ultimate fact, prevents tbe Court, even under the most rigid application of tbe Statute of Frauds, from proceeding to investigate the matter with a view of ascertaining tbe facts and then of doing justice between tbe parties upon tbe facts as found.

Tbe witness Logan was not incompetent as a witness'under section 590 of Tbe Code: (1) He is not a party to nor is he in any way interested in tbe event of tbe action; nor (2) does be propose to testify in behalf of himself, or (3) in favor of a party who derived bis interest from him, or (4) against tbe representative of a party deceased who claims adversely to bis assignee, nor' (5) does bis testimony relate to a personal transaction or communication with a deceased person whose representative is suing, or being sued, by tbe assignee of tbe witness. A careful reading of section 590 will show that the .objection to the witness upon the ground of his incompetency is not within either the letter or the spirit of the enactment. Bunn v. Todd, 107 N. C., 266. The case appears to show that instead of proposing to testify so as to affect himself beneficially, either directly or indirectly, the witness was in fact ready to testify against his own interest, as he is the heir and distributee of A. E. Deaver, who was his uncle.

If it was at all necessary to plead specially the matters set up in defense, it may be that the answer was not drawn with that fullness and technical precision required by the rules of good pleading, but this defect may be remedied by amendment. We are inclined to the opinion, though, that while issues 5, 6 and 7 were properly submitted under the answer as it is now framed, yet that the excluded testimony was admissible under issues 8 and 9. It is not material in what form issues are submitted to the jury, provided they are germane to the subject of the controversy and each party has a fair opportunity to present his version of the facts and his view of the law, so that the case, as to all parties, can be tried on the merits. Warehouse Co. v. Ozment, 132 N. C., 389. The Court erred in excluding the testimony as above indicated.

New Trial.