Strain v. Fitzgerald.

41 S.E. 872 | N.C. | 1902

DOUGLAS, J., dissenting. This is a petition to rehear this case, reported in 128 N.C. 396, for that the Court inadvertently failed to pass upon the exception that the court below excluded competent parol evidence which was offered to prove that there was in fact a seal to the sheriff's deed. If that (601) had been shown, the most critical examination could not have distinguished this case from Health v. Cotton Mills, 115 N.C. 202. In that case it was held that where the record represents on its face, as by recitals or otherwise, that the instrument was sealed, and, in fact, it was duly sealed, the record is valid and sufficient as notice, though it does not show a copy of the seal or any device representing it. Todd v.Union, 118 N.Y. 347, is also "on all fours" with this case. There the original tax deed had been lost and the record showed no seal. But the Court held that, as one witness swore that there was a seal on the original and the record of the deed recited, "Witness my hand and seal," there was evidence to go to the jury upon the question. Somewhat to same purport areCarpenter v. Dexter, 75 U.S. 513; Starkweather v. Martin, 28 Mich. 471;Geary v. Kansas City, 61 Mo., 379; Norfleet v. Russell, 64 Mo., 177; Longv. Joplin, 68 Mo., 422; Hammond v. Gordon, 93 Mo., 224; Flowery v. Bonanza,16 Nev. 302; Jones v. Martin, 16 Cal. 165; Abb. Tr. Ev., 483.

In Patterson v. Galliher, 122 N.C. 511, it appeared that there was in fact no seal. In excluding the evidence here offered to show that in fact there was a seal, there was error.

Petition allowed and

New trial.