Dem on Demise of Irwin v. Cox

27 N.C. 521 | N.C. | 1845

This action is brought to recover possession of the tract of land described in the declaration. The facts as disclosed in the case are as follows: William Davidson was the owner of the land, and in 1830 conveyed it to W. Morrison to secure certain creditors and to make title to such persons as Davidson might effect a sale with, for the purpose of discharging the debt set forth in the deed. In 1834 (522) Davidson conveyed the land to Curtis, Hyde and Tallmage, in trust to convey the land to a gold mining company, thereafter to be incorporated. The company was afterwards incorporated, by the name of the Franklin Gold Mining Company. Against this corporation a judgment was obtained, and the execution was levied on the land in dispute, and at the sale Irwin Elmes became the purchasers and procured a sheriff's deed to themselves. In order to show that Curtis, Hyde and Tallmage had performed their duty by conveying the land to the company the plaintiffs offered in evidence a copy of the deed made to the company, properly certified by the register. The reading of this paper was objected to by the defendant and the objection sustained by the court. The defendant went into possession of the land under Davidson, as his tenant, paying rent, and was continued in the possession successively by Morrison and by the Franklin Gold Mining Company. The case states that no evidence was given of any notice to him before the action was brought. The defendant insisted that he was a tenant from year to year, and entitled to six months' notice to quit. His Honor, without deciding the exact character of the defendant's tenancy, ruled that he was entitled to notice to quit, and the jury returned a verdict for the defendant. We think his Honor erred in rejecting the evidence offered by the plaintiffs of the conveyance of the land by Curtis, Hyde and Tallmage, to the gold mining company. The plaintiffs claimed as purchasers at a sheriff's sale and, as such, were entitled to the custody of the original deeds. It is a general rule that a copy of a paper-writing cannot be given in evidence without accounting for the absence of the original, upon the general principle that the best evidence of the nature of the case admits of and which is within the power of the party, shall always be produced. With respect to deeds conveying realty, as to the introduction of copies, the question always (523) is, who is entitled to the custody of the originals. If the plaintiff is, he must produce them or satisfactorily account for not so doing before he can be let into secondary evidence. If he is not entitled to the custody he may read a copy without giving any account of the original. In Buckhurst's case, 1 Rep., 1, many instances are given where the title papers do not pass with the land. One of them is, when land is sold with general warranty, which bound the feoffor to render to the feoffee in value upon his eviction, the feoffee is not entitled to the custody of the deeds, because they are necessary to the feoffor in defending the title, and he must have the custody of them, and the feoffee may read copies. A purchaser at a sheriff's sale is only privy in estate with him whose land is sold, and is not supposed to have the custody of the title deeds; he is, therefore, when called on to support the title of the defendant in the execution, at liberty to read copies instead of giving any account of the originals. This was expressly decided in this Court in Nicholson v. Hilliard, 6 N.C. 270. The court erred, therefore, in rejecting as evidence the copy of the deed from Curtis, Hyde and Tallmage. We concur with his Honor, that the defendant was entitled to notice to quit before he could be made a trespasser; and until he stood in that relation to the plaintiff, an action of ejectment could not be maintained against him. If the case had stated that no notice in fact had been given to the defendant we should not disturb the verdict, because in that case the plaintiff could not recover. But it only states that there was no evidence of any notice. Now it may be, we cannot say it is not so, that when the plaintiff's evidence as to the conveyance of the legal title to the company by Curtis, Hyde and Tallmage, was rejected, he considered his case at an end (as it was on the account on the demise of Irwin Elmes), and that it was not necessary for him to go any further with it, and declined producing evidence of notice. We find this principle recognized by the Court in Jones v. Young, 18 N.C. 355. The Court says, that although the plaintiff obtained a verdict (524) against the defendant, notwithstanding the error committed by the judge on the first point made in the case, yet as the opinion delivered may have prevented the defendant relying upon other evidence, we think it proper the case should be retried. We cannot say the error of the judge in rejecting the copy of the deed from Curtis, Hyde and Tallmage did not affect the rights of the parties on the question, on which the cause was decided — the want of notice.

PER CURIAM. New trial.

(525)