125 S.E. 406 | N.C. | 1924
The two actions brought by plaintiff against J. I. Coleman and N. D. Harris were consolidated by consent and tried together. Issues submitted to the jury with the answers thereto are as follows:
1. Was the deed dated 24 July, 1894, from Mollie L. Jones to W. A. Jones, her husband, executed and delivered by the grantor to her said husband during her lifetime and probate duly taken by the justice of the peace during her lifetime? Answer: "Yes."
2. Was her seal duly affixed to said deed by Mollie L. Jones, the grantor? Answer: "Yes."
3. Is plaintiff's cause of action barred by the statute of limitations? Answer: "No."
From judgment upon this verdict, that plaintiff take nothing by his action, plaintiff appealed. Errors assigned are set out in the opinion. *632 Mollie L. Jones was seized in fee and in possession of the land described in the complaint during her lifetime, after her marriage to W. A. Jones. There was in evidence the record of a deed from Mollie L. Jones conveying this land to W. A. Jones, dated 24 July, 1894, acknowledged by the grantor on 15 August, 1894 and recorded on 7 October, 1895. There was evidence that Mollie L. Jones died intestate on 27 November, 1894, leaving surviving her husband, W. A. Jones, and her only child, C. R. Jones, an infant, about one year of age, the plaintiff in this action.
Defendants claim the land described in the said deed under a deed of trust executed by W. A. Jones to A. L. Brooks, trustee, on 14 November, 1895, defendants having purchased the said land at the sale made by the said trustee, upon default in the payment of note secured therein. There was evidence that the deed from Mollie L. Jones to W. A. Jones was signed by her but not delivered to the grantee or to any one for him; and that the certificate of the justice of the peace was not on the deed at the date of her death. The plaintiff seeks in this action to have said deed declared null and void, alleging that his mother, Mollie L. Jones, did not sign, seal or deliver the same.
Upon the trial, the court instructed the jury that, upon the first issue, the burden was on the plaintiff to fully satisfy the jury by clear, strong and convincing evidence that the deed was not executed and delivered by Mollie L. Jones, his mother, and that her acknowledgment and privy examination were not made or taken during her lifetime; that whether the evidence offered by plaintiff was clear, strong and convincing was for the jury to determine but that in considering the evidence to determine their answer to the first issue, the jurors should bear in mind that the burden of proof was upon the plaintiff to establish the truth of his contentions by such evidence; that the law attaches great importance to the solemn judicial acts of judicial officers such as a justice of the peace and that when an officer has solemnly certified that the execution of a deed was acknowledged before him by the grantor and that the grantor, if a married woman, was privately examined by him and the deed probated by the clerk of the Superior Court and recorded by the register of deeds, the law requires that a jury should be fully convinced before the deed can be set aside.
Plaintiff excepted to these instructions and assigns same as error. We are unable to reconcile these instructions with the opinion of this Court in Belk v. Belk,
In the instant case a deed duly probated and registered is offered in evidence by the plaintiff who, however, attacks the validity of the deed upon the ground that the grantor named therein, from whom, but for the deed, the land described therein would descend to him, did not sign, seal or deliver the same. This registered deed raised a presumption of its due execution, including in this term both its signing and delivery. But the execution of the deed is denied and evidence was introduced which tends to show that it was not executed by Mollie L. Jones. There was evidence, also, tending to show that the certificate of the justice of the peace was not on the deed at date of her death. The defendants claim under this deed and rely upon the presumption which arises from the *634 probate and registration of the deed to sustain its validity. The question as to whether the deed was executed and delivered was necessarily submitted to the jury that they might pass upon the credibility of the evidence and its weight. The plaintiff contends that the instruction to the jury that the burden of proof upon this issue was upon him, not only to sustain the affirmative of the issue by evidence, but also that the jury should find that such evidence was clear, strong and convincing, was error.
In a civil action ordinarily the party upon whom the burden of proof is cast must sustain such burden by the greater weight or preponderance of the evidence; Speas v. Bank, ante, 524, and cases there cited byStacy, J. Where the party to an action seeks to engraft a trust on a written instrument or to annex a condition to one or to establish a mistake therein he is required to make good his allegation by clear, strong and convincing proof. In such cases he admits the execution of the written instrument and takes upon himself the burden of altering or changing the written instrument and this, this Court has held, can be done only by evidence that is clear, strong and convincing. When the execution of a certificate of a judicial officer is admitted but its legal effect according to its tenor is denied, the same rule is applied. The affirmative of an issue involving only the question as to whether a written instrument has been executed may be sustained by the greater weight or preponderance of the evidence; when, however, the execution of the instrument is admitted and its integrity or legal effect is attacked, the party who carries the burden of the issue must establish his contentions by evidence clear, strong and convincing.
In Lumber Co. v. Leonard,
In Benedict v. Jones,
In Odom v. Clark,
In Fortune v. Hunt,
The instruction of his Honor that the burden of proof upon the first issue was upon the plaintiff and that such burden could be borne by him only by evidence clear, strong and convincing is not sustained as the law by the decisions of this Court.
In a civil action where the issue submitted to the jury admits the execution of the written instrument and the rights of the parties attacking it depend upon a successful attack upon the integrity of the instrument itself, the rule stated in Lumber Co. v. Leonard supra, has been approved and followed by this Court; but where the execution of the instrument is the fact put in issue by the pleadings, this fact like any other fact alleged, may be established by the greater weight of the evidence.
We must therefore hold that there was error in the instruction of the court upon the first issue. The burden of establishing the fact of the execution of the deed by the grantor was upon the defendant who claims under the deed; the record of the deed, made upon a prima facie correct certificate of the justice of the peace and the probate of the clerk is sufficient evidence to sustain this burden; whether upon all the evidence *636 the presumption arising from the registration of the deed is rebutted must be determined by the jury.
Upon the second issue the court instructed the jury as follows: "It appears from the evidence that the deed from Mollie L. Jones to her husband, W. A. Jones, has been burned and the original of it is not in evidence. The record of it is in evidence and there is no scroll or seal after Mrs. Jones' name on the record, but the record recites `In testimony whereof the said Mollie L. Jones has hereunto set her hand and seal.'
"I charge you that the recital of these words raises a presumption that there was a seal affixed by Mollie L. Jones to her signature on the original deed.
"I further charge you that no evidence has been offered or introduced in this case to rebut that presumption and therefore you are directed to answer the second issue `Yes.'"
Plaintiff's exception to this instruction cannot be sustained. The instruction is supported by the opinion of this Court in Hopkins v. LumberCo.,
We do not deem it necessary to discuss assignments of error based upon his Honor's refusal to give instructions requested. There must be a
New trial.