117 N.C. 491 | N.C. | 1895
The assignments of error are so restricted as to preclude us from the consideration of most of the points made by defendant’s counsel in his clear and well-considered argument. The defendant does assign as error
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 plaintiff 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 the 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 overcome the presumption. Vaughan v. Parker, 112 N. C., 96. It is settled law that whenever the rules of evidence 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 of 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 be relied upon as fixing the time of delivery than the treacherous memory of a wit
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 proper 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 not 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 appears plainly that they were instructed specifically as to the possession and the rebutting testimony. But the
Affirmed.