3 N.C. 179 | Sup. Ct. N.C. | 1802
TROVER for a negro slave. This negro belonged to John Vernon, after whose death William Vernon sold to Hostler, after whose death Scull got possession; and after the commencement of this action Scull obtained letters of administration on the estate of John; William was not an executor of John, nor obtained letters of administration. And now it is insisted that the sale by William is good, because he was anexecutor de son tort, and that such an executor may dispose of the property. This is a position which cannot be maintained. Shall every vagabond who may get into the possession of a deceased man's property have power to sell it? He may sell, and the wife and children of the deceased be utterly deprived of the property and its value. If an executor of his own wrong take property and pay debts with (180) it, the rightful executor shall not disturb the purchaser, because could he recover, the property must be disposed of to pay the debt. These letters of administration obtained by the defendant after issue joined in this action cannot be evidence for him in this place otherwise than to lessen the quantum of damages. The plaintiff will be entitled to recover but just damages enough to carry the costs.
Verdict for 5s. and judgment.
NOTE. — In this case, in order to prove that William Vernon was authorized to sell the negroes in question to Hostler, plaintiff's counsel offered in evidence a paper-writing attested by the clerk of the court, and purporting that William Vernon was appointed administrator or adcolligendum, mentioning the term. Defendant's counsel produced a copy of the minutes of that term, which had been left by the attesting clerk amongst the court records, that made no mention of any letters having been granted that term. *190
PER CURIAM. This shall be taken as a complete record of that term, having been filed amongst the court papers as a record. What is offered is no record, and cannot be received to add to the record produced.
Plaintiff's counsel then proved by respectable witnesses that in that term an administration was really granted to William, and that he gave bond and surety for his administration: and from hence counsel inferred and insisted that some part of the record was lost, or that the copy produced was not a true copy; and that the record being lost, its contents may be proven by the testimony offered and the paper-writing attested by the clerk.
PER CURIAM. If there were such a record, and it has been lost, the contents may be proved; but here is a complete record disproving the position that any other ever existed; and you cannot prove against it that the record you speak of ever did exist.
NOTE. — The plaintiff had a verdict in this case, though it appeared that a better title was in a third person when the action was commenced. TAYLOR, J., had on a former trial of this case decided otherwise See 1 N.C. and Laspeyre v. McFarland,
As to the question of evidence to supply the omission or defect in the record, see Harget v. __________, ante, 76, and the cases there referred to in the note.
Cited: Barwick v. Barwick,
