Doe on Demise of Harven v. Springs

32 N.C. 180 | N.C. | 1849

We think his Honor erred in his instruction to the jury, and there must be a venire de novo. On the trial, a copy of the will of Thomas Kendrick, the father of the feme lessor of the plaintiff, was offered in evidence and opposed, upon the ground that it did not appear from the clerk's certificate that it had been proved as a will to pass real estate. The will is attested by three witnesses, and the clerk certifies "that it was proved in open court by Henry H. Glover, a subscribing witness, and recorded." The alleged objection is that the clerk has not certified that the witness proved the will, as required (183) by law to pass real estate. It is believed the probate is sufficient to pass the real estate, and that it does so sufficiently appears by the certificate.

The objection was first brought to the notice of the court in U.S. v.Blount, 4 N.C. 181. In that case the clerk's certificate was as in this, and the objection the same. The decision was that it is not essential that the clerk's certificate should set out all the circumstances necessary to the validity of the will to pass real estate. When it appears on the face of the will that there were two witnesses, and the clerk certifies that it was proved by one, the proof must prima facie be intended to have been such as the law requires, that is, that the witness deposed that he and the other witness subscribed the will in the presence of the testator, because the law requires such an attestation and such proof, and without it the court would not admit it to probate. That case was referred to and approved of in a more recent one of Morgan v. Bass, 25 N.C. 243. The certificate of the clerk there, as in this case, as to the proof of the will, so as to pass real estate, was sufficient — and the court committed no error in admitting the evidence. We express this opinion, not because it is necessary to the decision of the question properly submitted to us, but because, as the case must go back to another jury, our silence upon it might be misunderstood and the investigation embarrassed by it. The plaintiff is not entitled to a verdict. He showed no legal title to the land in his lessor. No grant was produced, and, as far as the case discloses the facts, the title is still in the State. To remedy this defect, he alleges that the defendant claimed the land under a deed of trust made by Thomas Kendrick, the father of the feme lessor. It appeared that Thomas Kendrick claimed the land and conveyed it in trust to one James Dinkins, to secure a debt due to one Robert J. Smith that he heard a conversation between Lewis (184) Dinkins, S. Fox and R. J. Dinkins, in which it was agreed that the executor might surrender the negroes to the administrators, if he (Robert J. Dinkins) could get the land. At the time this conversation took place Thomas Kendrick and James Dinkins were both dead. Lewis Dinkins was the executor of the trustee and S. Fox the administrator of the bargainor. Smith further proved that he heard Robert J. Dinkins say he had purchased of the widow of Thomas Kendrick her right of dower in the land in question. The reception of all this testimony was opposed, but the objections were overruled. A regular paper title was shown by the plaintiff from Robert J. Dinkins to the defendant. His Honor instructed the jury that if, from the testimony of Smith, they believed that Robert J. Dinkins claimed the land in controversy under the deed of trust, the plaintiff was entitled to recover all the land described in his declaration. On looking into the deed of trust it appears that it conveyed to James Dinkins, the trustee, only a life estate, without any provision for its continuance after his death. At the time the conversation testified to by Smith took place both James Dinkins and Thomas Kendrick were dead. The legal title had reverted back to the heir at law of Thomas Kendrick, who was the feme lessor of the plaintiff, she being his only child. The deed of trust was functus officio, a dead letter; and Robert Dinkins could not claim under it. Nor is there any evidence that he ever was in the possession of the land or any portion of it. His declaration was, if he could get the land the executor of the trustee might give up to the administrator of the bargainor the negroes conveyed by it. Nor was there any proof what had become of the negroes. There was, in fact, nothing for an estoppel to operate on. Estoppels are not favored in law, particularly such as arise from the acts of the party, as their effect is to exclude the truth. The plaintiff having entirely failed to show that the defendant claimed (185) through Robert J. Dinkins under the deed of trust, and having produced no sufficient evidence of a legal title in his lessors, was not entitled to a verdict. The exception to the mesne conveyances was withdrawn in the argument before us.

PER CURIAM. Judgment reversed, and a venire de novo awarded.

Cited: Colvard v. Monroe, 63 N.C. 289;Jenkins v. Jenkins, 96 N.C. 258;Cowles v. Reavis, 109 N.C. 421; In re Thomas, 111 N.C. 413; Moodyv. Johnson, 112 N.C. 800, 813.