72 S.E. 86 | N.C. | 1911
Trespass, involving an issue as to title. On said issue as to title there was verdict for defendant, judgment, and plaintiff excepted and appealed. *50 On the trial it appeared that both parties claimed under Ruel Windley, deceased, who by his last will and testament, bearing date in 1854, made disposition of certain real estate as follows: "I give and devise to my two grandsons, George C. Respess and John B. Respess,
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all of my river shore lands, lying on the north side of Pamlico River and known as the William Windley, deceased, lands, excepting 100 acres which I shall lend to Ruel W. Jordan and given to his children, and also except 100 acres which I shall give to my friend, James (61) Windley, and the rest of the said tract to be equally divided between the said George and John B. Respess.
"Item 2: I give and bequeath to my friend and relative, James Windley, for favors done me by him, the following tract of land lying near the waters of Old Town Creek and beginning at or near the head of Ash Branch at an oak, and from thence south 80 east 17 poles to a *51
(62)
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"A" is the division line of the Alderson quarter land from the River plantation and the Aaron Hammond land.
"B" is the westernmost line of the widow's dower. *52 corner; thence with William Windley's own line east 129 poles to a corner; thence north 15 west 66 poles to a corner stake in the savannah; thence north 76 west 160 poles to a corner; thence south 10 east 16 poles to said Ash Branch, and then to the beginning, containing 100 (63) acres, more or less, and was patented by William Windley, deceased; to have and to hold to him and his heirs in fee simple forever."
Plaintiff claimed the 100 acres devised in this will to James Windley under a deed from a surviving child and one of the devisees of said James, and defendant claimed under a deed from the said John B. Respess, to whom the said George Respess, codevisee, had conveyed his interest, and which said deed purported to convey the land devised to John B. and George Respess, under said will of Ruel Windley; and on matters relevant to this appeal the issue as to title was made to depend largely on the correct location of this devise of 100 acres to James Windley, defendant alleging that plaintiff had failed to locate the said land at all, and that any correct location of same, if made, would not include the locus in quo. On this question of location there was evidence on part of plaintiff tending to fix the beginning corner of the 100 acres as a certain "oak at or near the head of Ash Branch" as called for in the devise and subsequent deeds, and that the placing as contended for would result in locating this land so as to include the locus in quo; and in rebuttal of his testimony, defendant offered, and same was received in evidence over plaintiff's objection, a certificate of survey for a land warrant and grant to Calvin Windley for 200 acres of land in Beaufort County. This certificate, bearing date or purporting to bear date in 1841, contained a plat of land, with the courses and distances, and was signed by Ruel Windley, surveyor, and also the chainbearers, was without erasure or interlineations of any kind, and as we understand the record was the plat and survey accompanying a grant to Calvin Windley, of same date, for a tract of land in that neighborhood of the quantity stated, and was produced from the proper custody. This plat was introduced because it apparently showed a placing of Ash Branch entirely different from that claimed by plaintiff and tending to show that a correct location of the 100 acres would not cover the locus in quo. Before the same was admitted, John B. Respess, Jr., a witness for defendant, testified as follows:
"Q. Do you know Ruel Windley's handwriting? A. I know (64) it in this way: he raised my father and was very much devoted to him, and often, in looking over his papers, which I have now, my father would show me and say, `This is grandfather's signature.'
"Q. Have you seen a great deal of that writing? A. Yes, sir. Since *53 I have been surveying I have seen quite a lot of it. By family reputation, my greatgrandfather was a surveyor, and my father was a surveyor."
A small map, marked "A," was handed to witness, and he was asked:
"Q. Whose handwriting is this, if you know? A. That is Ruel Windley's, from the source of information that I have.
"By the Court: Q. Do you mean to say that somebody told you that that identical paper was in Ruel Windley's own handwriting? A. Not this one.
"By counsel for defendant: Q. From the writing you have seen purporting to have been written by Ruel Windley, is that, or is it not, his handwriting? A. Yes, sir; that is his handwriting."
On these facts and accompanying testimony, we are of opinion that the plat with the certificate was properly received in evidence, being admissible as an ancient document and also by reason of competent testimony tending to show that the certificate just below the plat, and giving the corners of same, was signed or subscribed in the handwriting of Ruel Windley, deceased. It is well established that ancient documents, that is, documents relevant to the inquiry and bearing date or purporting to bear date at or before a period of thirty years prior to the time the same are offered in evidence, prove themselves, that is, they are admissible in evidence without the ordinary requirements as to proof of execution or as to handwriting, the recognized limitation being that they should be produced from proper or a natural custody and be free from suspicious circumstances, indicative of fraud or invalidity. McKelvey on Evidence (2 Ed.), p. 440. These preliminary requirements being for the determination of the court. The principle is stated in Stevens' Digest of the Law of Evidence, as follows: "Where any document purporting to be thirty years old is produced from any custody (65) which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document which purports to be in the handwriting of any particular person is in that person's handwriting, and, in the case of a document executed or attested, that it was duly executed and attested by the persons by whom it purports to be executed and attested; and the attestation or execution need not be proved, even if the attesting witness is alive and in court. Documents are said to be in proper custody if they are in the place in which, and under the care of the person with whom, they would naturally be, but no custody is improper if it is proved to have had a legitimate origin, or if the circumstances of the particular case are such as to render the origin probable."
This statement, copied with approval in 2 Elliott on Evidence, sec. 431, will be found very generally sustained, and applies, except where *54
modified or restricted by statute, not only to deeds, but to wills, leases, letters, records, contracts, maps, certificates, and all other writings which are relevant to the inquiry and may need authentication. 3 Wigmore, sec. 2145; 2 Elliott, sec. 1333; Starkie on Evidence, sec. 521 et seq.;
2 A. E., p. 322. Where such a document is offered as a muniment of title it was formerly held that it should be fortified by some evidence of possession or occupation, under and consistent with the purport of the instrument, a position referred to as prevailing in Plummer v. Baskerville,
Again, as stated, we think the testimony of John B. Respess, (66) concerning the document, would require that the same be received in evidence. While the doctrine of opinion of evidence, by which is in strictness termed a comparison of handwriting, as a rule, is only permitted in this State in the case of expert witnesses, and then in a restricted line of cases, as shown in Tunstall v. Cobb,
Writers on evidence usually refer to such testimony as coming only from expert witnesses, but we doubt if an examination of the decisions would justify the statement. The opinions in these cases, so far as examined, seem rather to lay stress on the fact as stated, that the witness had charge and custody of numbers of (67) documents, with full opportunity and frequent occasion to examine them, rather than the fact that a witness was in strictness and technically an expert. The Fitzwalter Peerage case, 10 C. F., 193;Canty v. Platt,
A proper application of these authorities fully supports the ruling of the court in admitting the certificate and plat in question, and, as stated, on both grounds. It was an ancient document, produced from a custody both reasonable and natural and apparently without any fact or suggestion casting doubt or suspicion upon it. (2) The witness John B. Respess fully qualified himself to give an opinion as to the handwriting of Ruel Windley in testifying that he had had occasion and full opportunity to examine and note other ancient documents having Ruel Windley's signature in care and keeping of his father and himself, the son and grandson of Ruel Windley, and to observe and note his signature as surveyor to numerous papers coming under his inspection in the line of his duty.
While we uphold the action of the court on the question suggested, the plaintiff is entitled to a new trial by reason of another exception duly entered, for that the court, over plaintiff's objection, allowed the jury to take this plat and certificate to their room and inspect the same in their *56
deliberations. This is contrary to our practice and has been condemned in several decisions of the Court. Williams v. Thomas, 78 N.C. (68) 47; Outlaw v. Hurdle,
New trial.
CLARK, C. J., did not sit.
Cited: Bissett v. Lumber Co., post, 164; La Roque v. Kennedy, post, 370;Rangeley v. Harris,
