Powers v. Murray

185 N.C. 336 | N.C. | 1923

Ajdams, J.

It is admitted, as we understand, that if Margaret’s conveyance to Balaam of the 10-acre tract was an advancement and Margaret died seized and possessed of the fifteen acres described in the complaint, Balaam bas no interest in the tract last named because be claims an interest in it only as an beir at law of bis brother Hillary. the defendant alleges that be and Hillary and Sam purchased and paid for the land described in the two deeds executed by James Wells and bis wife and that Margaret took the title in ber own name and held it in trust for them and that after Sam’s death she executed the trust by conveying one tract to Balaam and the other to Hillary.

The answer further states that Margaret’s deed to Hillary conveying the 15-acre tract was never registered and bas been lost or destroyed if not withheld by some of the plaintiffs. For the purpose of establishing these allegations the defendant was permitted to testify at the trial substantially as follows: “I was born in 1860. Hillary Murray, (Sr.), was my father and Margaret Murray my mother. She lived in Duplin County. I have a deed from my mother for ten acres of land. She made two deeds at the same time or bad Mr. Bill Joe to make them; but both were not made to me. She never made but one deed to me for the same piece of land. Mr.'W. J. Boney went to my mother’s bouse, and me aaid Maggie Wilson and Hillary and Margaret were present. I don’t know bow old Maggie was at that timé; she was fixing to get married. In the presence of Maggie, Hillary, Margaret and myself Mr. Boney wrote two deeds, one for me and the other for Hillary.” To the testimony relating to the deeds the plaintiffs in apt time objected.

When a deed bas once been delivered its subsequent loss or destruction will not divest the title of the grantee, and its contents may be shown by competent evidence when the due execution and the loss are properly made to appear; but as the deed is the best evidence of its own eon-tents it must be produced unless it has been lost or destroyed, or is in the bands of the adverse party wbo fails to produce it, or unless its absence is otherwise satisfactorily accounted for. If the original cannot be produced and it becomes necessary to offer secondary evidence of its contents, such contents, including of course its legal operation, must be established by the testimony of one who has “first-hand knowledge on the subject”; for hearsay based upon statements made by third parlies is not deemed sufficient to impart competent and correct information of the matter in dispute. Propst v. Mathis, 115 N. C., 527. This “first-hand knowledge” does not necessarily imply testimony of verbal precision, but it should embrace entirety of parts. Aside from the practical impossibility of recalling the identical words of a lost deed, they are not essential in proof of the contents. But it is necessary to prove the execution of the deed, its delivery, its loss, the material parts, and its legal operation. In Taylor v. Riggs, 1 Peters, 591, p. 600, Chief Justice Marshall observes: “When a written contract is to be proved, not by itself, but by parol testimony, no vague, uncertain recollection concerning its stipulations ought to supply the place of the written instrument itself. The substance of the agreement ought to be proved satisfactorily; and if that cannot be done, the party is in the condition of every other suitor in court who makes a claim which he cannot support. When parties reduce their contract to writing the obligations and rights of each are described and limited by the instrument itself. The safety which is- expected from them would be much impaired if they could be established upon uncertain and vague impression made by a conversation antecedent to the reduction of the agreement.” And in Plummer v. Baskerville, 36 N. C., 252, Chief Justice Ruffin uses this language: “It may at once be stated that sufficient inquiry appears to have been made for this instrument, if it ever existed, to authorize the declaration of its loss. Still it is incumbent On the plaintiffs to show its existence at one time and its contents. At law the existence of an instrument as a genuine one is shown by proving its execution according to the nature of the instrument, that is to say, by the subscribing witness, if there be one, or by proof of handwriting. This is ordinarily true in equity also. Goodees v. Lake, 1 At., 246. It cannot be otherwise, for in reason as well as in law things which do not appear must be regarded as if they did not exist. After it be thus shown that the instrument existed its operation and effect may be established by proving the contents by the best evidence in the party’s power, such as an examined copy, the registry of it, or the oral testimony of witnesses who can state the contents, or the admission of its contents by the person executing it.” In Fisher v. Carroll, 41 N. C., 485, Judge Pearson adds'that the strictest and clearest proof will be required if the execution or contents of the written instrument are denied. 4 Chamberlain’s Mod. Law of Ev., 2708; 3 Wigmore on Ev., 2105; McKelvy on Ev., 272, et seq.; Plummer v. Baskerville, supra; Deans v. Dortch, 40 N. C., 331; Loftin v. Loftin, 96 N. C., 95; Jennings v. Reeves, 101 N. C., 447; Gillis v. R. R., 108 N. C., 441; Jones v. Ballou, 139 N. C., 526.

Tbe defendant’s testimony falls short of these requirements. It will be noted that only one of the plaintiffs was present when Boney wrote the two deeds. There is no evidence that the defendant read the deed which was delivered (as he says) to Hillary or that he could read; so far as the record shows his testimony was hearsay. He did not testify that diligent search had been made or that the deed had been lost or destroyed; nor did he trace it into the hands of either of the plaintiffs. He alleged that the plaintiffs have it, but served no notice to produce it, and laid no adequate foundation for proof of its legal operation. Nevertheless, the jury were permitted to consider this testimony and that of Rivenbark, which as it now appears in the record is subject to the same objection; and upon their testimony the jury no doubt responded to the third and fifth issues. In overruling the objection of the plaintiffs as to the evidence concerning the execution and loss of the deed there was error which entitles them to a new trial.

New trial.