Kendrick v. Dellinger

Sep 15, 1895
Versions:
Avert, J.:

The assignments of error are so restricted as to preclude us from the cоnsideration of most of the points made by defendant’s counsel in his clear and well-considered argument. The defendant does assign as error *493however, thе refusal of the court to instruct the jury that in ‍​‌​‌​​​​‌​​​‌​‌‌​​​‌​​‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌​​‌​‌‍any aspect of the testimony the plaintiff has failed to show even prima facie evidence of title in himself, when the action was brought, and that they should therefore respond to the issue in the negative.

A deed is presumed to have been delivered at the time it ‍​‌​‌​​​​‌​​​‌​‌‌​​​‌​​‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌​​‌​‌‍bears date unless the contrary is satisfactorily shown. Lyerly v. Wheeler, 12 Ired., 290; Meadows v. Cozart, 76 N. C., 450. The summons was issued on the 28th of February, 1894. The deed under which the рlaintiff claims bears d ate of February 11,1894, and nothing further appearing is presumed to have been delivered at its date. The deed takes effect-from 'the time of its actual delivery, however, if it is shown by parol testimony to the satisfaction of the jury to have been subsecpuent to the date. The party having thе right to insist upon the presumption may admit the truth of the rebutting testimony, but if he controvert its truth it is the province of the jury to pass upon the question of its sufficiency to оvercome the presumption. Vaughan v. Parker, 112 N. C., 96. It is settled law that whenever the rules of evidеnce give to testimony the artificial weight of a presumption, the question whether it is rebutted by parol evidence introduced for the purpose, must go to the jury, unless the .truth of such evidence ‍​‌​‌​​​​‌​​​‌​‌‌​​​‌​​‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌​​‌​‌‍be admitted. A party who offers a witness, wdiether the adversary party or anothei-, is not precluded from the privilege оf contradicting him by testimony inconsistent with his but only waives the right to impeach him by attacking his credibility. Helms v. Green, 105 N. C., 251; Coates v. Wilkes, 92 N. C., 376. The plaintiff was at liberty notwithstanding the fact that his witness Adderholt testified that the deed was not delivered till September, 1894, to-insist that the date was rather to bе relied upon as fixing the time of delivery than the treacherous memory of a wit*494ness. Sucb an argument would bave been legitimate and the jury would bave been tbе judges of its weight. It may be that they discredited the testimony of Adderholt on accоunt of his demeanor or the chances of inaccuracy. We must infer that this contradictory testimony was weighed and passed upon by the jury because thе Judge told ‍​‌​‌​​​​‌​​​‌​‌‌​​​‌​​‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌​​‌​‌‍them that unless they were satisfied by a preponderance of еvidence that the plaintiff had title to the land in dispute, when the action was brought, they must respond -in the negative to the issue. The broad-side exception tо the instruction given, without pointing out any specific error, is too general tо be considered. McKinnon v. Morrison, 104 N. C., 354. There was no error in refusing to tell the jury that the plaintiff had not offered sufficient evidence to bo submitted to the jury, when he had introduced tеstimony which tended to show grants from the State and mesne conveyances connеcting with them, as well as possession for seven years ‍​‌​‌​​​​‌​​​‌​‌‌​​​‌​​‌​‌‌​‌‌​‌‌​‌‌‌​​‌​​​‌​​‌​‌‍under color of title tо land, the title to which was out of the State.

In the absence of a more specific request it is not such •error as the defendant could avail himself of to instruct the jury in the general terms employed by the court. But we deem it propеr to exclude the conclusion that we approve of leaving the jury, to search out the truth with so little assistance as was afforded them by the abstract propositions which are embodied- in the statement of the •case as given in lieu of the instruction asked. It may be that the whole of the charge was nоt sent up. But if it was, it would have been of benefit to the jury, and it was but just and proper, though so far as we can see not the legal duty of the court, to have told them, in plainer terms, how the plaintiff claimed to have shown title. It no where aрpears plainly that they were instructed specifically as to the possession and the rebutting testimony. But the *495defendant was in fault in not praying, (in writing if be chose) thаt they be told how to determine whether the plaintiff had_ acquired title before bringing the action. The defendant has not by due diligence shown his right to complain of error, if it was committed, and the judgment must be affirmed.

Affirmed.