Hughes v. . Debnam

53 N.C. 127 | N.C. | 1860

It is a matter of regret with us that we have not been favored with an argument for the plaintiff, for by the aid of such an argument we might have been enabled to perceive more force in his exceptions than we have ourselves as yet discovered. The errors (131) assigned in the bill of exceptions have all been considered by us, and in not one of them do we find anything of which the plaintiff has any just cause of complaint.

The exception, founded upon the supposition that there were two subscribing witnesses to the alleged deed of gift, and that the name of one of them had been cut off by the defendant, cannot be made a ground of objection, because upon it the charge of his Honor was in favor of the plaintiff. The other objection urged in connection with the first, that from the inspection of the instrument it is to be presumed that the name of the subscribing witness Andrews was put there before the execution by the donor, is equally unavailing to the plaintiff, because the presumption was just the reverse, to wit, that in the absence of proof to the contrary, all things connected with the execution and attestation were rightly done. Omnia presumuntur rite este acta.

The exception that the deed was not registered because there were some mistakes in the registration is completely met and answered by Van Pell v.Pugh, 18 N.C. 210, where it was held that slight and immaterial mistakes in the recording of a grant will not avoid it. Here, the mistakes were both slight and immaterial, and we know of no difference of principle in this respect between the recording of a grant and the registering of a deed of gift.

The objection to the piece of square paper and wafer being taken as a seal has no foundation whatever. It is certainly as much a seal, when intended by the party as such, as a scroll with the word "seal" written in it can be; and there was no evidence that it was not put there as the seal of the donor when she signed the instrument. In the registration of the instrument the register could do no more than make a symbolical seal, to stand as a copy of the actual seal annexed to the original deed.

The original deed of gift from the donor to some of her grandchildren would have been competent as evidence in reply to the proof offered by the plaintiff that they were poor and needed the aid of their grandmother's bounty. In Warren v. Wade, 52 N.C. 494, (132) similar evidence was held to be admissible to repel an inference sought to be raised, that the deceased, whose will was offered for probate, had been induced to execute the script, by the exercise of undue influence over him, because he had given his property away from the person for whom he was under a primary duty to provide. As the original deed would have been competent, chapter 37, section 16, Rev. Code, makes a duly certified copy from the register's books also competent as evidence.

As to the exception in relation to the insanity of the subscribing witness at the time of the execution of the instrument, we hold that the charge of his Honor was substantially correct. If the witness had at that time mind enough to understand the obligation of an oath and to be able to prove the capacity of the donor and her execution of the deed, it was all that the law required; see 1 Green. on Ev., sec. 365; Archbold Crim. Pl., 135. There is

PER CURIAM. No error.