Smith v. Turner, 39 N.C. 433, 4 Ired. Eq. 433 (1847)

June 1847 · Supreme Court of North Carolina

39 N.C. 433, 4 Ired. Eq. 433

MARY R. SMITH vs. JOSIAH TURNER & AL.

A Court of Equity does not like to entertain bills to perpetuate testimony, except in cases of plain noeessity.

If the object of a bill is to perpetuate the testimony of witnesses to a deed respecting lands, the deed must be properly described, and the names of the witnesses, who are to prove it, be set forth, and also the facts, to which they are to give evidence, be specially stated.

Such a bill must shew the interest of the plaintiff in the subject, and, in stating it, should, though succinctly, set it forth plainly and with convenient certainty as to the material facts, so that, on the bill itself, some certain interest in the plaintiff shall appear ; which, indeed, is sufficient, however minute the interest may be.

In a bill of this kind a Court of Equity only assists a Court of law by preserving testimony, where the plaintiff’s right is purely a legal one.

But a Court of Equity will not entertain a bill to perpetuate testimony, touching a subject of its own jurisdiction, because the party can always, though in possession, file a bill for relief, and the Court can, in Us discretion, make the proper orders upon an emergency, for speeding the taking, of the testimony of old, infirm, or removing witnesses.

Appeal from an interlocutory order of the Court of Equity of Orange County, at tbe Fall Term, 1S40, bis Honor Judge Battle presiding.

Tbe bill states, “that, by deed bearing date the 10th clay of December, 1840, J. S. Smith, the father of the plaintiff, did convey and assign to her, the plaintiff, in remainder, certain lands lying on Price’s creek in Orange county, which will mor.e fully appear, reference being had to the said deed, registered in book D, page 39G, in the Register’s office of Orange; that the land designated in said deed,, as the Price’s creek tract, was once owned by Francis-Jones, the grand-father oí the plaintiff; and that, by deed bearing date March 19th, 1819, Francis Jones conveyed to J. S. Smith, his son in-law, the said tract; that by tbe said deed, bearing date the 19th day of January, 1825, the said Francis Jones conveyed to J. S. Smith other lands, called the Park’s Neck lands, for the sum of $7,000, and also, upon an express agreement between the said parties, that the said Smith should re-e mvey to the said Francis Jones the lands on Price’s creek 5 that, as she is informed, and believes, a deed was accordingly executed by her father to the said Francis Jones for the said lands, bearing even date with that made by Francis Jones to him for the Park’s Neck lands, to-wit, the 19th of January, 1825; that this deed, as executed, was delivered to the said Jones, and was seen at the time of delivery or afterwards, by sundry persons, some of whom are advanced in years, others have left the State, and recently departed this life ; that the said deed remained in possession of Francis Jones many years, but, as your oratrix is informed and believes, was taken from his possession by Ruffin Jones, his only son, and was by him destroyed ; and that the said Ruffin Jones died many years since.

“ Further complaining your oratrix shews, that her said grand-father Jones avowed his intention, after his reception of said deed, of giving said lands on Price’s creek to your oratrix at his death; and she further shews, that in accordance with that jmrpose, which was frequently declared, he made and published his last will in writing in the year 1840, in and by which, among other things, he did devise to your oratrix the said lands, directing his executor in what manner his said purpose should be carried into effect; that some months after the publication of the said will, and in the life-time of the said Francis Jones, her father, not only in obedience to the direction and devise in said will contained, but also in compliance with a promise long before made by him to the said Jones, did convey by deed, lands on Price’s creek, in remainder to your oratrix, reserving life estates therein, as well to himself as to his wife, the mother of your oratrix; all of which will appear by reference to the said deed, registered in book D, as heretofore stated; that your oratrix accepted the said deed at the time of its execution, and because, as she is advised, entitled absolutely to a vested remainder in said lands ; that in the year 1844, her grand-father Jones departed this life, leaving his said will unaltered and unrevoked, and that said will was admitted to probate at May Sessions of Orange' Court of Pleas and Quarter Sessions 1S44, and her father, J. S. Smith, the executor therein named, was qualified as such (a certified copy of which she hath r'eady to produce when required by the Court,) and took upon himself the burden of executing the same ; that on the 21st day of November, 1845, she purchased of her said father his life estate in the Price’s creek lands, at and for the price of $1,000, and he executed and delivered to her a deed for the said lands, bearing date on that day, which will more fully appear by reference to the same as registered in book D, page 398, in the Register’s office of Orange'. Your oratrix shews that she has become the owner in remainder, of the said land on Price’s creek, and also of the life estate of her father in the same, and is in possession of said land under and by virtue of the said several conveyances, subject, nevertheless, to the life estate of her mother in the event of her surviving the father of your oratrix; and your oratrix had Well hoped that she would have enjoyed her said estates quietly, and without interruption or doubt as to her titles to the same.”

The bill then states, that the defendant, Turner, “ although her deed had been registered as aforesaid, and thus he had notice of her said title,” yet had an execution against Turner and J. S. Smith levied on said lands as the property of J. S. Smith, and at a sale by the sheriff' he, Turner, became the purchaser, and had received or would receive the sheriff’s deed therefor.”

The bill then proceeds, “ that she, being thus in possession of said lands, has no means of having her title to said lands established, and that, as the witnesses to the' existence of the deed from Dr. J. S. Smith- to- Francis Jones, re-conveying the lands in question, are some of ■ them advanced in years, and others have left the State, and that one of them in particular hath recently died, and that said deed is lost or destroyed, she hath good reason to fear that, hereafter, in the event of the death of the said witnesses, it would be impossible to establish her title to the- said lands : that from the course taken •by the said Turner, she doth believe that, perhaps at some distant day, he means to institute proceedings in regard to these lands, which may be injurious to her, if the testimony of the said witnesses cannot now be perpetuated, the more especially as she has no means of trying the question ©f title by any act of hers, and there is no reasonable probability that there will be any immediate action by others to trjr the said question ; that she is informed that the said Turner hath charged that your oratrix hath no good title to the said lands ; that no deed was ever made by the said Dr. J. S. Smith to Francis Jones, re-conveying the said lands, and that the said lands- therefore were not the property of the said Jones or conveyed by his will to your oratrix.” The prayer is, “ that your oratrix may be at liberty to examine her said witnesses, touching said deed, lost or destroyed as aforesaid, and touching her title to the said lands in every particular, so that their testimony may be perpetuated and preserved and for process of subpeena commanding Turner to appear and answer, “ and to stand to, abide by, and perform such decree as to your Honor may seem meet.”

The defendant answered, and admits that he purchased the same land under an execution against J. S. Smith, which the plaintiff claims, and that he meant to contest her title, and states that he had already commenced an action of ejectment against her. The answer takes several objections to the bill for certain imputed defects, in not being supported by any affidavit, and in having a prayer for relief, and in various other particulars.

At the first term, the Court of Equity “on the motion of the plaintiff, ordered that the complainant have leave to ■examine witnesses and take testimony as prayed in the bill without prejudice, and that the Clerk and Master issue Commissions accordingly.” Upon an affidavit of the plaintiff, that two persons, M. S. and C. Y. were, the one about to leave the State, and the other confined by sickness, the Court further ordered, that the depositions of those two persons might be taken on three days notice. From those orders the defendant appealed.

Norwood,Waddell, and W. H. Haywood, for the plaintiff

J. H. Bryan, for the defendant.

Ruffin, C. J.

The primary object of the bill appears to be, and we are told at the bar that the sole object of it is, to perpetuate the testimony of witnesses. It is a kind of bill that is not of frequent occurrence and, indeed, one that the Court of Equity does not, for very good reasons, like to entertain except in cases of plain necessity. Angel v. Angel, 1 Sim. & Stu. 83. It so seldom occurs in praotice. that' the profession is probably not familiar with it. Yet the jurisdiction is well settled, and the cases in which such bills will lie, and the proper form of the bill and of the orders on it, are clearly enough stated in the books. The frame of the bill before us is, however, thoroughly defective. In the first place every bill should describe a subject of controversy so as to identify it. This is absolutely necessary in order to enable the Court to decree on the rights of the parties to the thing, or, in this proceeding, to direct the interrogatories or specify the matter to which the witnesses arc to be examined. Now, all we learn of the subject of this dispute is, that it is, “ certain lands lying on Price’s Creek in Orange County ” without any further description. It is true, that the bill says that those lands were conveyed by J. S, Smith to the plaintiff in remainder, by a deed dated, December 10th, 1841, and registered in Orange in a certain book. But that is not a description of the land upon this record, but only a reference to another paper as evidence of the plaintiff’s title ; and it would be impossible, without bringing into the cause that deed — a thing not in the contemplation of a mere bill in perpetuam rei memoriam- — to make an order as to the subject touching which the witnesses should be examined. Look upon the order that was made, and see how indefinite, and necessarily indefinite, it is ; being, that the plaintiff “ may examine witnesses and take testimony as prayed for in the bill,” and the prayer is for the examination of witnesses at large, “touching her title to said lands in every particular,” as well as touching a deed, alleged to be lost. We suppose, however, that it was mainly the object to establish the execution, existence and validity of a deed for certain lands from J. S. Smith to F. Jones; about which the allegation is, that it was seen “by sundry persons,” and that Turner denies that such a deed was ever made. But it is laid down, that, if the object of the bill is to perpetuate the testimony of witnesses to a deed respecting land, the deed must be properly described and the names of the witnesses, who are to prove it, be set forth ; and also the facts to which they are to give evidence be specially stated. Mason v. Goodburn, Finch’s Rep. 391. Knight v. Knight, 4 Madd. Rep. 8. In each of those particulars the bill is defective. This kind of bill, too, like every other, must shew the interest of the plaintiff in the subject. Mitf.Pl. 51. And in stating the plaintiff’s title, the bill should, though succinctly, set it forth plainly and with convenient certainty as to the material facts-^so that on the bill itself some certain interest in the plaintiff’ shall appear; which, indeed, is sufficient, however minute the interest may be. In applying this rule to a bill to perpetuate evidence in regard to a title to a tract of land, which stated only that on a certain day A, executed a deed to the plaintiff, whereby the land was conveyed to the plaintiff, and that thereupon the plaintiff executed to A. a lease of the premises during his life, it was held that it was fatally defective, both as to the matter and the manner of treating the plaintiff’s title, because it did not set out the contents of the deed nor state what species of estate or quantity of interest was granted. Jerome v. Jerome, 5 Conn. Rep. 352. Now, the bill here omits every thing of that sort as respects the deed from J. S. Smith to F. Jones — not stating whether it conveyed a present or future interest, or a fee, or life estate, or term for years. We cannot tell, whether any thing could now be claimed under that deed, if it ever existed. The same observation extends to the manner of setting forth all the other title papers. The bill begins by stating that J. S. Smith, by a deed dated December 10th, 1841, conveyed to the plaintiff the premises “ in remainder but after what particular estate, or what the interest in remainder was, whether in fee, for life, or otherwise, contingent, or absolute, we are not told. In subsequently stating the will of the grand-father, the same vagueness is displayed, and even more. It sets out, that the land was devised thereby to the plaintiff; and, if it had stopped there, perhaps it might be taken to be a devise in fee, under our Statute. But it goes on to state, that the testator therein “ directed his executor in what manner his said purpose should be carried into effect, without setting out that part of the will lime verba, or as much as mentioning the manner in which the purpose was to be effected: which, we suppose, must mean, tbe manner in which the estate in the land should be passed to or vested in the plaintiff. Something of that sort was indispensably necessary in the bill to make it intelligible ; for the executor, virtute officii, would have nothing to do with the conveyance of land to a person, to whom the testator devised it, and could only have a power, touching the land, specially conferred by the will; and that does not appear here.

But a more important objection to the bill, arises from the manner in which the plaintiff states her title, from which it follows, that the question, touching- which she prays to perpetuate testimony, or, rather, the only question which is specifically stated, is one, that can never arise in a Court of law, and therefore the Court will not perpetuate evidence to it. This is one of that kind of bills, on which the Court of Equity does not decide on rights, but assists a Court of Law in doing so, by preserving evidence. Mitf. Pl. 148. The Court will not do a useless thing. As if a bill be to perpetuate evidence against a tenant in tail, who may immediately bar the estate, the Court will make no order, inasmuch as it would bo fruitless. Dursby v. Fitzhardinge, 6 Ves. 260. So, if this plaintiff can never set up the title, stated in her bill, as a legal title, on which she can defend her possession, it is in vain to perpetuate the evidence. For, if her redress upon that title, must be in a Court of Equity at last, then her proper course is to file a bill for relief at once, and not a bill of this kind. The Court of Equity will not entertain a bill in perpetuam rei memoriam, touching a subject of its own jurisdiction, because the party can always, though in possession, file a bill for relief, and the Court can, in its discretion, make the proper orders upon an emergency for speeding the taking the testimony of old, infirm or removing witnesses ; which, indeed is, in this State, specially provided for by statute. Rev. St. c. 32, s. 4. Now, it is very plain that the plaintiff cannot assert the title, which she sets up under Francis Jones, at law, and that it is material to her to rely on that title. She states, indeed, that J. S. Smith became seised of the land under a conveyance from Jones, and that by two deeds from Smith she has the legal title for the life of her father, upon a purchase for #1,000, and for the remainder after the deaths of her father and mother. But this latter conveyance would not be good as against the father’s creditors, because it was upon no consideration, moving, from the plaintiff, unless she can connect herself with the title Jones derived by the deed, alleged to have been made to him by J. S. Smith and to have been lost. That she does through the devise by Jones to herself — supposing that to be sufficiently stated in the bill. But, as appearing in the bill, it will not support the deed from her father to the plaintiff, because that deed could not have been made to the plaintiff as the devisee of Jones, since it was executed before the death of Jones. If it be said, the bill states, that the conveyance was made in compliance with a promise of Smith to Jones, the answer is, that, whether the interest of Jones be regarded as legal or eqtfitable in its nature, it could not be passed by even an express act by parol, much less by implication in the manner charged. Therefore the plaintiff is obliged to resort to her grand-father’s will to sustain her title.. But after she shall have done so, she still cannot shew a good title in a Court of Law, because the deed to Jones was not registered, as far as appears, and therefore could not be given in evidence at law. It is very singular, upon the statements in the bill, that, upon the loss of that deed, a new one had not been executed from J. S. Smith to Jones. However, Jones had a clear right to call for another deed in this Court and it' would have' been decreed to him. Tolor v. Tolor, 1 Dev. Eq. 456. Plummer v. Baskerville, 1 Ired. Eq. 252. In like manner the plaintiff, as his devisee, can call for a conveyance from her father, or from the present defendant, as having succeeded to the legal title, that rested in the father, in consequence of the loss, of his deed to the grand-father before registration. If, in fact, J. S. Smith made the deed to Jonesbona fide, and for the consideration alleged in the bill, and Jones did devise the land to the plaintiff in possession, or in remainder in fee, after the death of her father and mother, (as we suppose it was intended to be charged,), her title to relief here will be clear ; and so. far as her right is derived from the grand-father, that is the only mode in which she can assert it.

It is plain, therefore, that in no point of view, and to no extent, is this bill sufficient to entitle the plaintiff to the assistance of the Court, if it had been demurred to. That would have been the most correct course; for no discovery was sought from the defendant, and there was no occasion for an answer. But the mere circumstance, that the defendant put in1 a needless answer, not called for, but not admitting any part of the plaintiff’s title, nor any fact on which she grounds her claim on the Court for aid, cannot dispense with a statement of some case in the bill, apparently proper for the interposition -of the Court, or cure a bill so radically deficient as- the present both in form and substance. And, finally, the Court is of opinion, that the orders appealed from were erroneous and ought, to be reversed, and of course if any commissions issued thereon, they ought to be called in and can-celled, so as in effect to suppress- the depositions, if any have been taken. The appellant is entitled to- his costs in this Court.

Per Curiam.

Decreed accordingly.