Scarborough v. Tunnell, 41 N.C. 103, 6 Ired. Eq. 103 (1849)

June 1849 · Supreme Court of North Carolina

41 N.C. 103, 6 Ired. Eq. 103

ISAAC SCARBOROUGH vs. WILLIAM TUNNELL & AL.

Where a bill is filed lo compel a party to deliver up an instrument, in his possession, upon the ground that it is a forged instrument, the plaintiff has a right to have it produced and left in Court for inspection and for the better examination of witnesses — the bill in this case, alleging the forgery, having been sworn to.

The case of Cooper v. Cooper, 2 Dev. Eq. 298, cited and approved.

Appeal from interlocutory orders made by the Court of Equity of Edgecombe County, at the Spring Term 1849, his Honor Judge Settle presiding.

. The bill was filed in November 1848, and states, that the plaintiff adopted the defendant, Tunnell, in tender infancy, as his child ; he being a nephew of the plaintiff’s wife, and they having no children of their own ; and that the same defendant had resided with the-plaintiff in Edgecombe or near him, and on his land from 181S, to Octo* her 1848: that, in 1846, he made a will and therein gave to Tunnell a tract of land and six slaves, and to his son Isaac another tract of land and ten slaves: that in July 1848, the defendant, Tunnell, shot one of the slaves of the plaintiff, and, upon being reproved by the plaintiff, abused him very much and otherwise maltreated him ; and that the plaintiff was thereby induced to revoke and destroy his will, which became known to Tunnell: that in. September 1848, the plaintiff was way laid and shot by some person, whom he believed to be the defendant, Tunnell; and that, by reason of that belief, he and Tunnell disagreed and the latter removed, in October 1848, to the County of Greene to reside: And that very soon thereafter, as the plaintiff understood, the defendant,Tunnell, and the other defendant, Glasgow, who is Tunnell's brother in law, exhibited to sundry persons a paper writing, purporting to be a deed executed by the plaintiff and attested by Glasgow, as subscribing witness, and dated on some day in April 1548, whereby the plaintiff conveyed the whole of his estate, real and personal, and consisting of land, slaves, and other things, to the defendant, Tunnell, to his own use absolutely after the death of the plaintiff; and they alleged that the plaintiff executed the same and that Glasgow witnessed it. The plaintiff avers, that he never did at any time execute a deed to the defendant, Tunnell, for any thing, and that, if the defendants have any such deed in their possession, it is a forgery, contrived by them in fraud of the plaintiff, and to the prejudice and clouding of the tide to his property : and he states that it will be particularly prejudicial to him, if the defendants should cause the deed to be registered (as he understands they design) and then should destroy the original, whereby it might become more difficult to establish the fraud and forgery. The prayer is, that the defendants may be compelled to discover and produce the said pretended deed, and that it may be declared to be forged, and decreed to be cancelled, and, in the mean time, that the defendants may be enjoined from having the deed proved and registered. On the bill an injunction was ordered, as prayed for.

The answer of Tunnell admits the relation, in which he and the plaintiff stood up to April 1848, as the same is stated in the bill, and that he knew the contents of the plaintiff’s will, as the same are set forth in the bill: It states, on the 6th of April, the plaintiff’s wife died, and that he and his family were then residing in the house with the plaintiff, that they might the better nurse his sick wife and attend to the plaintiff, then about 6S years ;¿ld : that between the 1st and 17th of April, the plaintiff ■expressed to this defendant the desire to execute to him a deed, conveying to him all his property, reserving to himself a life estate ; and that he assigned, as his reasons therefor, that he wished to give him two pieces of land, which the plaintiff had purchased after he had made his will, and also because he was unwilling that the negroes, given in the will to the defendant’s son, should be hired out, as they would probably be, by reason of the infancy of the son, at the plaintiff’s death. And both the defendants state, that the defendant Glasgow, who lived in Greene, came to the plaintiff’s on a visit to his sister, Mrs. Tunnell, on the 16th April; and that the next morning the plaintiff produced and executed the deed referred to in the bill, and that the defendant Glasgow, at the plaintiff’s request, became a subscribing witness to it, and the plaintiff delivered it to Tunnell, and remarked, that it was useless to keep the will any longer, as it was of no force, and threw it into the fire.

The defendant Tunnell admits, that he shot the plaintiff’s slave, but says that it was upon a just cause — which he does not mention — and that the plaintiff, though excited at first, readily became satisfied with the defendant’s conduct upon that occasion, and no alienation arose therefrom between them: That they continued to live as father and son, until the plaintiff married a second time in September 1S4S, when the defendant, left the plaintiff’s house and resided in another on the plaintiff’s land, until in that month the plaintiff was shot by some person in his own woods. The defendant denies, that he shot the plaintiff or had a knowledge thereof, until he received the information of it from another person ; when he promptly went to the plaintiff’s assistance and carried him home and attended him there, until the plaintiff was induced by his second wife to accuse the defendant of having shot him; and that then he left the plaintiff’s premises and went to Greene to live. The answer states, that, as as soon as the plaintiff was last married, his conduct towards the defendant underwent a complete change, and that he went so far as to threaten to burn the house, in which the defendant lived ; and that, being apprehensive that he would do so and consume the deed, the defendant placed it for safe-keeping in the hands of one Gardner, who lived in the neighborhood : That, becoming afterwards uneasj', lest the plaintiff might get the deed into possession and destroy it, he directed Gardner to deliver it to one Patrick Glasgow of Wayne ; but that he subsequently concluded, in order more effectually to secure his title to the property, to have the deed proved and registered, and was proceeding to do so, when the injunction stopped him. Both of the defendants say, that, when interrogated on the subject, they exhibited the deed to several persons and declared it to be the act and deed of the plaintiff,and they still declare it to be so; and the defendant Tunnell avers, that he is ready to establish it to be so, whenever permitted bjr the Court. The answer of Glasgow states, that he annexes a copy of the deed to the answer, as a part of it, but it does not appear in the transcript.

On the coming in of the answers, the defendants moved to dissolve the injunction ; and, at the same time, the plaintiff moved, that the defendants should be ordered to produce the alleged deed for the inspection of the Court, and also file it with the Master for the inspection of the plaintiff, his counsel, and such witnesses as might be examined by the plaintiff’, to establish that it was not his deed. The Court first granted the latter motion ; and the defendant, Tunnell, insisting that the deed was his own, and that the Court could not deprive him of if, refused to file it or produce it; and therefore the Court refused to dissolve the injunction, but allowed an appeal.

B. F. Moore, for the plaintiff.

Biggs, for the defendants.

Ruffin, C. J.

We think both of the orders pefectly correct. This was not an attempt to deprive the defendant of his deed. That is what is to be done by the decree on the hearing, if it should be found to be a forgery. But, before the hearing, the Court often directs the production of papers, and, if necessary to the purposes of the causet .the deposit of them in Court, for their security and for inspection. As to the former, no case, perhaps, is made here, as no ground is laid for supposing, that the defendant will not produce the deed on the hearing, nor that it would prejudice the plaintiff, if he. did not produce it; for the non-production would no doubt entitle the plaintiff to a decree declaring it a forgery,, and perpetuating the injunction. But, clearly, the inspection of the instrument is indispensable to the plaintiff’s preparation for the hearing, as it is impossible, that, without the deed, he can give evidence as to the hand writing and various other matters, tending to show that the instrument, is not genuine. Of course, the order tor the production of the paper is not depriving the defendant of his deed at all. The Court does not put it into the hands of the plaintiff, but in those of its officer; and the Court is necessarily obliged to have confidence, that the officers of the Court— the Master, Solicitor, and Counsel — are to be trusted with the custody and inspection of the papers and records in every' cause. Here the the defendants admit they have the deed, and therefore it is subjecting them to no difficulty to require its production from them. When produced, it will be as accessible to the defendants as to the plaintiff, and both may with equal facility take proofs as to its execution. Indeed, the refusal to produce it furnishes evidence of the intention of unfairness in the management of the cause, and adds much to the suspicion excited by the case made in the bill and answer. It was no favor which the plaintiff asked ; for, when the object of a suit is to destroy a deed, as upon an allegation of forgery, the plaintiff has a right to have it produced, and left in Court for the inspection and the better examination of witnesses. Bechford v. Wildman, 16 Yes. 438. And although in that case it was said, that the production would not be ordered upon a mere suggestion in a bill of the forgery, but that a special ground must be made out, yet that does not affect the present question, because here the, bill is a sworn one, expressly averring the special case of forgery. It has always been the course in this State to order the instrument thus contested to be brought into Court for the purposes of inspection, Cooper v. Cooper, 2 Dev. Eq. 29S ; and the wonder is, that, instead of merely refusing to dissolve the injunction, the Court had not attached the parties upon the spot, not simply for noncompliance with the order, but for the positive refusal to do so in the face of the Court.

That was, of itself, a sufficient reason for not hearing the defendant’s motion to dissolve; for, while in contempt, they had no right to ask any thing. But the answers are, upon their face, insufficient and suspicious. Besides the singular reason given for depriving the defendant’s son of the benefit bestowed by the will — which could not have extended to the land devised to him — there are the extraordinary circumstances, that there was no communication of the. plaintiff’s intention to make the deed to any one but the defendants: that while they remained friendly, from April to July, and while they lived together, up to September, no communication of the existence of the instrument was made to any one as far as is alleged : and that it was only after the dissension between the parties, that the deed was put into the hands of Gardner, and after the final breach and reparation, upon the mortal assault on the plaintiff laid to the defendant Tunnell, that the parties made known generally, that they had such an instrument. Certainly, upon such an account of such an instrument, disposing of the plaintiff’s whole estate as a, gift, no Court could feel any assurance, that the deed was genuine, although in some parts of the answers it is averred to be so.

Per Curiam.

Orders affirmed, with costs in this Court.