1 N.C. 1 | Sup. Ct. N.C. | 1795
At October Term, 1795, the Court gave their opinion as follows:
Before we proceed to the immediate investigation of the first question-whether, in the case of a sealed instrument, unattested by any subscribing witness, the handwriting of the party may be admitted in evidence? it may be proper to take a view of the origin of deeds, in our law ; and of the various changes and alterations, the law has undergone, with respect to that species of instruments, in order to be accommodated to the different circumstances, which different periods of time have produced. This may have a stronger tendency to place the present question in a true light, than perhaps any other method of treating the subject that could be devised.
Let us consider, therefore, 1st. the origin of reducing contracts to writing ;-2dly. the origin of sealing, with the uses that have been made of it, at different periods ;-3dly. the origin of delivery.
We will then consider the only circumstances essential to the constitution of a deed at this day : and, lastly, from all these premisses we will draw conclusions applicable to the point now in controversy.
I. All writers agree, that the northern nations Of Europe, who spread themselves over the southern and western parts of it, were an illiterate people, who despised all arts but those of war. The Saxons who founded the heptarchy in England, and afterwards the English monarchy were part of those people—they had, in general, no knowledge of letters-their laws and customs, their legal ceremonies were preserved and transmitted to others and to posterity by tradition only. To keep up a military spirit, and to have a band of warriors always ready at command, it was the universal practice of the conquering leaders of these nations to divide the conquered country into allotments, which were parcelled out to their followers :- first, at the will of the lord or leader; next, for the better encouragement of agriculture, for life ; and, last of all, for ever or in fee. About the time, when it began to be usual to make these grants for life, the christian religion, under the auspices of the papal fee, was propagated in England by St. Augustine and others, and was soon adopted and received as the national religion. Its priests were men of some learning—they here, as in all other places where they have been received, began to grasp at temporal advantages—they inculcated upon the minds of the people, that it was an act of the most meritorious piety to provide for the maintenance of the ministers of god. This doctrine had its effect, and donations of allotments of land began to be made to the church, also for life: but this life was supposed to be perpetual, as the church never died. The donations of these allotments, for want of a better method of perpetuating the transaction among the laity, who knew nothing of letters, had always been made by livery of feizin, done in the most solemn form, to impress it on the mind, before a number of the co-vassals or tenants of the lord, who, in case of a dispute, were assembled in the lord’s court, and determined chiefly by the remembrance which these impressions had made between the parties. The presumption was, that if some
II. The preserving the remembrance of a landed contract, having thus become general, in the times of the Saxon government in England, and the general illiterature of the laity of all ranks prevailing universally, it was customary for them to put some mark, usually the sign of the cross, to identify, as well as they could, the writing they had agreed to: and this was done coram paribus, who, upon the trial, might remember it, or be able to distinguish it from some circumstance attending the making the deed or the mark itself. But, upon the Norman conquest, it became the policy of the conqueror and his sons to abolish the Saxon customs and for this purpose to draw as many causes as possible to be determined in the curia regis, where the judges were Normans. Sull. 339, 343, 369, 374, where the pares of the neighbourhood were frequently not called upon to decide between the litigants, as they uniformly were in the court of Saxon institution, the county court, hundred court, &c. About this period, the bishop was separated from the sheriff, in his county court, and it was established as a rule, that the county court had not cognizance of any demand of more than forty shillings value; the consequence of which must have been that all causes were carried in the curia regis, and it must frequently have happened also that the marks affixed to the deeds, for want of the pares, were incapable of any distinction and of course any proof of the identity of the instrument. This produced an inconvenience. The greatest men among the laity could not write their names, so as to give a proof of identity that way, and being under the necessity of providing some more certain criterion of identity, than that of the sign of the cross, they introduced for the first time into England, the practice of impressing their writings with a seal. Sulliv. 374. Terms de ley, verbo Fact. Gil. law of evidence 17, 18, 20, 78, The seal exhibited the emblem which its owner had affixed to his person, when covered in the field with his coat of mail, and which, being pourtrayed upon some conspicuous part of his dress, served to designate his person. These symbols came to be very much in use, at the time of the crusades to the holy land, in the time of Richard I. and after, and were continued by the knights and other persons, who then used them by way of distinction in their families, after their return home. The seal, therefore, of any distinguished person, could immediately be known by inspection only. This method of sealing, however, was not introduced all at once, but by degrees. It was at first only used by such as were entitled to those distinguishing symbols—by the nobility and gentry only. For Lucie, chief justice of Henry II, reprimanded a common man who had made use of a seal, saying that belonged to the nobility only. Terms de ley, ubi supra, and several other books. But it is to be remarked that about this period, and for some time before, the common people had but little use for seals, as they could have but few contracts. The conquest had introduced the maxim of
This universal use of seals, however produced its inconvenience, when every man who made a contract was obliged to use a seal to authenticate it. Many of those seals were not known to the jurors, and they could not determine in many instances on the authenticity of the instrument, upon the inspection of the seal only. They were of under a necessity, therefore, to call upon those who were supposed to know the seal which the party used, to say whether that was the impression of his seal or not; and upon this evidence they decided,
III. With respect to the delivery, I have no more to add to what has been already said, relative to its coming into use instead of the livery of seizin, and being, like that, made in solemn form coram paribus, to the end it might make the deeper impression in their minds, than, that this solemn delivery of the deed coram paribus, being found to be well calculated to make the desired impression in the case of landed contracts, and also, from the same solemnity, to excite in the party a reflection upon the subject he was engaged in, it was continued in other contracts; and, like the seal, was consider ed an essential ingredient to the constitution of the deed. Here it may not be improper to remark upon the excellence of this institution when once established, tho’ introduced gradually and for other purposes, in preventing all manner of surprize upon the party. It was first to be written; this necessarily employed some time; he had the interval for reflection: it was to be read over to him, if he requested it: then the wax was to be prepared and melted; next a seal to be procured; then an impression to be made: thus gradually approaching to the final act, still giving time for reflection, and exciting by each new act still greater apprehensions, and last of all, left the former precautions might not be sufficient to put him upon reflection, he was called to go before the pares of the neighbourhood, and to make a solemn delivery of the instrument, After all these ceremonies were complied with, it was scarcely possible to believe that the party was circumvented by fraud, or surprized into what he had done. After the pares were disused, and the authority of the county, and hundred courts diminished, I apprehend a delivery before the pares went out of use, but that a delivery of the contract was still used as a sign of the party’s assent to the contract contained in the deed, and has, ever since been deemed necessary to give it its final validity.
Such seems to be the origin and progress of the several circumstances of writing, sealing and delivery of deeds, which came into use, not all at once, but at different periods of time, and were used for perpetuating, authenticating and proving the complete and final assent of the party to his contract. Any other concomitant circumstances, besides those, tho’ they have been sometimes used, and said to be incident to deeds, as signing by the party, subscription by witnesses, and many other, as many be seen in Co. Litt. 7, a: yet they have never, at any period of time, been held material to the essence of the deed; unless perhaps in some instances, where such circumstances have been required by statute: and that these are the only necessary circumstances is proved by all law writers both anc
After the production of this concurrent testimony of so many authors, it seems scarcely necessary to-say that the subscription of witnesses in their own handwriting to a deed was never held necessary to its constitution. The reasons already assigned for the first introduction of seals and their continuance for a long time afterwards, namely, the illiterature of the laity, proves also that the subscription of witnesses was not used during that long period, which commenced soon after the conquest and continued to the time of Henry VII and Henry VIII. Even the magna charta of king John given at Running mead, in the year 1215, in the former part mentions the archbishops bishops, barons, &c. not particularly naming them, and in the end is attested in this manner, testibus supra dictis et multis aliis, and left any thing should be added or substracted from the form of the writing, he thereto put his seal. Bl. law tracts 35, 36. In 1216, the first charter of Henry III. is attested thus testibus omnibus prenominatis et multis aliis. I infer from this, that in a matter of so much moment they certainly used the best method of attestation then known or used, and as they did not subscribe their names, it is an evidence that the subscription of witnesses in their own hand writing was not then practised. The attestation of private deeds was in the same manner; the names of the witnesses were underwritten or endorsed, and this was used only as a memorandum, to shew who of the pares were present, to the end they might be called upon and associated to the jury, upon the trial of the issue, when the deed was denied. Vide Co. Litt. 6 a & b; and sometimes it was said teste comitatu; hundredo, &c. 2 Bl. Comm. 307. I apprehend the practice of subscribing by the witnesses came into use at the same time, with the subscribing by the party; at a time, when the law respecting deeds was already firmly established, and when bath these circumstances were held unessential, tho’ perhaps both of them at the time might be useful: the signature of the party to prove his seal and that of the witnesses, when they could not be found, to prove the delivery of the deed. For when it was proved, by his own signature to be the seal of the party, there a
If writing, sealing and delivery be the only essential parts of a deed, and the law deems it valid without the further ceremony of a subscription by witnesses, then, there must be some other competent means of proving the deed, otherwise than by subscribing witnesses. It would be absurd to attribute validity to an instrument
To form a decided opinion upon this head, we must remember, that there is but one general rule in relation to evidence, and that is that the law requires the best evidence. But this rule is always relaxed upon two grounds, either from absolute necessity or a necessity presumed from the common occurrences amongst mankind. The rule is not so stubborn, but that it will bend to the necessities of mankind and to circumstances not under their control. The rule is adopted only to obviate the fraud of mankind. One shall not deceive the jury by offering a less convincing testimony to establish his point, when it appears there is a proof more elucidative of the point in controversy, in his own possession or power, which perhaps, he does not offer because it would be decisive against him. It was never meant to exclude the party from justice, merely because he had not, through ignorance, provided himself originally with the best evidence it was possible for him to provide: for then two witnesses would be better than one; a hundred better than two; and so on progressively. A writing would be better than a parol contract; a deed better than either; and a record better than all, Neither was it intend ed to deprive any one of justice, when, without any default in himself he had lost the better evidence which he had provided originally. It first deprives him of the power of imposing upon us, and then lays itself open to be relaxed, as circumstances shall in justice require. These circumstances, as I began before to mention are of two kinds; those founded on absolute necessity; and those founded on a necessity occasioned by those occurrences which are common amongst mankind. We will touch upon the first class only. In the case of deeds, if there be subscribing witnesses to them (see 1 Atkins 49, the argument of lord Hardwicke, in the celebrated case of Ormichund and Baker, and mark the implication) they must be proved by these witnesses. Because, it is presumed that these witnesses can give a more distinct and satisfactory relation than any others; having been called upon originally for that purpose: but if the witnesses be dead, or not to be found, and that be proved to the court, then the hand writing of the subscribing witness may be proved; that raising a violent presumption in favour of the deed. If the deed be lost, and that appear to the court, then the copy shall be read, as affording a presumption. But, if there be no copy, then an abstract may be admitted, that affording a probable presumption, and if no abstract, parol evidence of the contract may be offered. The true intent of the parties, to be regulated by that contract, shall not be defeated and justice overturned, so long as any evidence remains, Which throws any glimmering of light on the subject from which a jury may be enabled to infer the real state of the transaction. The subscribing witnesses in the case above stated are not required, because the deed cannot be proved without them, as has been already evinced ; but because were they not produced the defendant would be deprived of the cross-examination of those persons he had
It seemed to be insisted on, at the trial, that the clause of In witness whereof I have hereunto set my hand and seal, might be received as an evidence of the seal; and as some case may hereafter occur, in which that clause may have only the words: In witness whereof I have hereunto set my hand : when, in facts there may be a seal affixed, I will remark upon this clause a little ; more especially, as it is set down in this special case, and the opinion of the court is expected upon it. I would observe then, in the first place, that this clause contains a part of the words of the deed, and the deed itself, or any part of it, cannot be read, until the sealing and delivery of it be first proved; and of consequence this clause cannot be read to prove the seal until after the seal has proved the clause itself. And then as to the purpose of its proving, or disproving the seal, it is totally useless; and, that such a clause is not only unnecessary in itself, but that the words of it have always been disregarded, is proved by such an abundance of authorities, that the bare citation of them will fully establish the position that the omission of this clause or the addition of it, or the words of it, can have no influence whatever upon the writing itself. Some of them are the following: Co. Litt. 7, a, Salk.
It may be objected that, if the words contained in this clause, are not suffered to have any weight, then the holder of a promissory note, might add a seal to the name of the party ; and by that means avoid the act of limitations, and also circumscribe the party in point of evidence. To this, the answer is, that the rules of evidence were established long before the statute of limitations, and that act did not intend to alter them.
2. That the law has guarded against such attempt by making the writing totally void, if it should be attempted, and also subjected the party to very severe punishment, for the attempt.
3. If there are witnesses, they may be produced to say what they know of the seal.
4. If there are no witnesses, the circumstances to prove a delivery, may throw some light upon the seal itself.
5. The law will not presume such turpitude in any man. The possibility of his commiting such an offence will not vitiate the act, as if he had actually committed it; and in this case, as in all others, the injured party should prove the injury done him. Again, if the instrument should be held invalid, because possibly the seal might have been affixed after the execution of it, then more good deeds would be destroyed upon suspicion, than frauds prevented by it. For few men will attempt a fraud of this kind, under the multiplied hazard of receiving infamous corporal punishment, and being for ever degraded from their rank in society, and the total loss of the thing secured by the deed, especially if it be of great value. Experience shews that men, not well knowing the technical distinction between a seal and their signature say witness their hands and put their seals also, and e converso, declare in this clause that they have put their hands and seals, where they have subscribed their names only. Here, as in all other cases, the law chuses the least of two evils. Once more, the subscribing
But it may happen in the case of an unattested bond, that there may not be sufficient evidence by circumstances to prove the delivery and this brings us to another question referred to the court in this special case, which although it is not necessary to be considered in order to the determination of this case, which is an action of debt, and depends entirely upon the question, whether this be the deed of the party or not? yet, as it has been referred to the court, I suppose, for the purpose of having the law settled, upon this point also, I will make a few remarks on it.
The question is whether an action on the case lies upon such an instrument, when it cannot be proved as a deed?
As to this there is one rule certain: that no sealed instrument can be given in evidence to support an action on the case. Gilb. law of evid.100. Cro. Jac. 506, 598. The law has given a remedy of another sort upon those sealed instruments. An action on the case, depends upon parol evidence or writing only. Therefore the action on the case must necessarily be destroyed, when the evidence to support it is destroyed by extinguishment; and all parol contracts and agreements are held to be extinguihed when they become cloathed in a contract of greater solemnity, or evidenced by sealed instrument, as these sealed instruments are themselves extinguished, so that no action can be supported upon them, between the same parties, when they have passed in rem judicatam, and have become matter of record. All this depends upon the rule of law already mentioned, that the best evidence shall be required. Thus, a bond shall not be evidence, when there is a record of the same matter, nor parol evidence when there is a sealed instrument. This rule of law is not to be denied; and then the whole question is reduced to this; whether when a seal appears, the party, who produces the writing to which it is affixed, shall be permitted to say, it was not affixed to the writing originally? It has been for a long time a standing rule of law, framed first indeed for the protection of deeds, the only written instruments then in use, for unsealed instruments are but of modern date, 3 Term. 330, but in policy extending to every written contract, that the least alteration in any material part, shall render the whole writing totally void: and even an immaterial alteration, made by the holder of the instrument, shall make it void also. 11 Re. 27. A bill of exchange, payable three months from the 26th of November, was held to be totally void, it being found by the jury that the top of the figure 6 was blotted out, while in the possession of the holder of the as to make it appear to be the 20th instead of the 26th, and by that means to accelerate the payment; though in fact no such acceleration of payment had been attempted, 3. Term Rep. 320. Now, then to apply these rules to the case in hand, if the seal
In the case of the bill of exchange, lord Kenyon, speaking of the blot which made the alteration, said if it had been done by accident, that should have been found to excuse the party. He thought the alteration having been made, after the instrument came to the possession of the payee, raised so strong a presumption of his guilt, that, in point of law, the instrument should be deemed void, unless he could shew the blot happened without his privity: and so I am induced to think in the present case, that if the addition can be considered as an immaterial addition only, yet, to make men careful to preserve their written instruments free from all alteration or addition, it is good policy in the law, to suppose the alteration or addition made by the holder or obligee himself, therefore the moment he shews a sealed instrument and says the seal was not originally affixed to the writing, the whole instrument must be deemed void, unless he can show that the seal was affixed to it without any privity of his. But I take it the addition of a seal is not an immaterial alteration only. It avoids the act of limitations—it excludes the giving of parol testimiony to explain or control the writing—in any shape, it makes the party liable to another kind of action than that he at first stiputed-it deprives him of that latitude of evidence he might have had in the action on the case; and, before the act for the amendment of the law, would leave him, in the case of single bill as this is, no method of discharging himself but by a release, or acquittance under seal. In every point of view, therefore, the addition of the seal is a most material alteration; and if it be material, then, no matter how it happened, or by whom the alteration was made, the whole instrument is totally void; and no action whatever can be supported upon it; no more than if the seal had been torn off to make way for the proof of the writing, as a simple contract. The law requires that the contract shall remain unaltered—that the party may not be subjected in any other shape or manner than that which he has consented to. Besides, if when the signature of the party is proved that stands as presumptive evidence of his seal, then an unattended instrument being produced, and the handwriting of the party proved the presumption instantly arises and will stand for truth, until the party plaintiff shall overturn it by evidence, accounting for the affixing of the seal, and that it was done without the knowledge of the plaintiff, or any criminal intent in him: and for quacunque via data, the seal appearing, it must be accounted for, to by the least, by the plaintiff himself: and therefore i am of opinion, upon the last point referred in this special case, that debt is the proper action to be brought upon such an instrument, as is therein stated; and the action on the case can
Judgment for the Plaintiff.*