Doe on the Demise of Marshall v. Fisher, 46 N.C. 111, 1 Jones 111 (1853)

Dec. 1853 · Supreme Court of North Carolina

46 N.C. 111, 1 Jones 111

DOE ON THE DEMISE OF WILLIAM H. MARSHALL vs. MICHAEL N. FISHER.

An entry on tlie minutes of the County Court, as to a will which has two witnesses, as follows: “ The will of R. B. proved by H. S. Executor T. B., qualified ” is sufficient to authorise the presumption that the will was duly proven, nothing appearing on the face of the proceedings to forbid such a conclusion.

Where an order has been made for amending a record, such amendment may be made at any time afterwards,

A judgment against an infant, appearing by attorney, is valid, until reversed upon a writ of error. '

A variance between the judgment and execution is cured by act of Assembly, 1848.

What are the boundaries of a tract of land, is a, question of law, for the decision of the Court; where they are, is a question of fact for the jury. Where a question of law is left to a jury, and the verdict shows that they decided properly, it is no ground for a venire Be novo.

(Phelps v. Higdon, Bus. 380; Galloway v. McKeithen, 5 Ired. 12; Green v. Gale, 13 Ired. 425; Rutherford v. Rabun, 10 Ired. 144 ;■ — cited and approved.

This was an action of EJECTMENT, tried before Ms Honor Judge Bailey, at Craven Superior Court, Fall Term, 1853.

The land in controversy is embraced within the lines G H J K of the diagram below. The plaintiff offered two grants, one to Roger Bratcher, in 1772, and another to Lydia Guard, in 1771, and insisted that the one to Robert Bratcher covered the land designated by the lines of D CEE, and that to Lydia Guard the land within the lines A B C D.

She plaintiff introduced the will of Roger Bratcher, which was verified by the following protest: “ The will of Roger Bratcher, deceased, proved by -Henry Sikes. Executor Thos. Bratcher qualified. Ordered, that letters issue.” Defendant objected to this evidence .-upon the ground of the insufficiency of the probate. This objection was overruled, and the will read in evidence.

Evidence was offered to show that the title to the land in question was in the heirs of Matthew Stephens, in the year 1809. lie then gave in evidence the record of a. petition .filed for a partition among the.heirs, an order-for partition, and a report of the Commissioners appointed for that purpose, .which was returned, and confirmed by the Court in September -1811. There was no registration or order for registration made at that time, nor- was it made until March Term, 1852. At that Term, an order was made, nunc pro 4unc, that--the record of 1811 be amended, so as to set forth the order for the- registration of this proceeding in 1811. The minutes -of September Term were not amended, at March Term, 1852, and it Avas objected by the defendant, that the record of the partition could not be read; that the Court had no right, at March Term, 1852, to make the .order mine pro tunc. .Objection overruled. During the examination of the testimony in this .-case, the-clerk of the County'Court made an entry on the minutes of September, 1811, and the record, as amended, Avas then offered; but the defendant’s counsel still objected, that this entry should have been made at> September, 1811, Avhen the report was confirmed. This objection was overruled by the Court, and .the evidence received.

In the dRision, lot No. 1 was assigned to Joseph‘Stephens, Avithin the lines Q P E E; lot No. 2 to William Stephens, within the lines GHP Q; lot No. 3 to'Daniel Stephens, within the lines R N II Gr; lot No. 4 to Sally Stephens, AYithin ythe Ti-nes’VM'N R,;:and lot No. 5 to -Matthew Stephens, within the lines A B M Y. It was in evidence, that William Stephens sold No. 2 to Moses Stephens, in 1814. Moses Stephens died intestate, leaving an only son, John Stephens, his heir at law. Moses Stephens had become the administrator of one Elizabeth Stephens, and had executed a bond, as such, in the penal sum of five hum dred pounds. After the death of Moses, a suit was brought on this bond, against John Stephens, as heir at law, the plaintifi in that suit alleging that he had assets by descent. The w.- it Was executed on John, while yet an infant; his plea, wore entered by an Attorney, who appeared in his behalf, and a judgment rendered against •him for the penalty of the bond (without stating the amount), and for six pence damage and costs. Execution issued on this judgment, which was levied on the lands of Moses, which had descended to John, and they were sold under a venditioni ,exponas, by the Sheriff of .Craven county, on 6th of May, 1818, to William Holland, Sr. The evidence of this judg-ment and execution was objected ,to, on the ground that John, the defendant in that suit, was.an infant, but admitted;.

The judgment against John Stephens, is in the name of John E. Smith, Chairman of the Court of Pleas and Quarter Sessions, of Craven .County, and the judgment recited in the execution, and the venditioni exponas, which issued thereon, is in the name of the “ Chairman of Craven County Court.” The defendant obejected todhe judgment and execution, on account of this variance, "but the objection was overruled.

Wm. Holland Sr., in .1834, conveyed the land to Wm. Holland, Jr., under whom the plaintiff claims. The plaintiff fur..ther introduced a deed from Wm. Holland, Sr., to Wm. Ogles-.by, dated in 1832, and .alleged that the beginning was at S •on the lower line of the Lydia Guard patent, running thence up Coleman’s Creek to X, where it was crossed by .the line ‘Y M; then up that line, the. ,dividing .line between 4 and 5, to the letter M; tbence up to the letter H; thence to the letter G; and thence to S the first station.

The defendant introduced the same deed from William Holland, Sr., to William Oglesby, dated in 1882, two years before William Holland, Sr., sold to William Holland, Jr., and agreed with the plaintiff that the beginning corner was at S, and ran from that point, as the plaintiff insisted to M : from this point he contended that the next call would extend to P; thence to Q; thence to the first station, covering the land in dispute. The defendant then introduced the will of William Oglesby, and a deed from his Executor, Joseph R. Franklin, to one Isaiah Dennis, for the same land. There was no evidence of any deed from Dennis to the defendant, but there was evidence that he was in possession of the land in dispute, at the time of the service of the declaration. It was agreed by the parties that the line A F was the lower line of the Lydia Guard and Roger Bratcher patent,- and that B E was the upper line of those patents; that S was the beginning corner of the land which William Holland, Sr., conveyed to William Oglesby, in 1832, and further agreed that his line ran up to M; that he ran from thence westwardly; but, whether he went to H and stopped, as the plaintiff contended, or went to P, as the defendant contended, was the point in controversy. Taking M as a pointy the call in the Oglesby deed, as to this part of the descrip->iion, is “ thence westerly with Lydia Guard’s patent line, and Roger Bratcher’s, so far as the corner of the second lot of the piece of land drawn by Daniel Stephens, in the division -of Matthew Stephens', land, being the two pieces drawn by ■Sally Stephens and William Stephens, and thence along that •division line to Lydia Guard’s line, thence along her line to «the first station.”

The defendant asked his Honor to instruct the jury, that they were required by law, in deciding the question, to go from letter M to the letter P. His Honor declined to do ■so,'but left it to the jury, as a question of fact, whether the ■line stopped at H, or ran on to P.

The jury rendered a verdict for plaintiff. Motion for a ■venire de novo, on the exceptions taken above, and for refusing to instruct as requested.

Motion refused, and appeal to this Court.

Donnell, for plaintiff.

«7. W. Bryan, for defendant.

Pearson, J.

1st. The defendant excepts, btecause the will <of Bratcher was admitted as evidence, on the ground of the insufficiency of the probate. The minute entered of the ■probate, is: “ The will of Roger Bratcher, proved by Henry ■Sikes. Executor Thomas Bratcher qualified; ordered, that letters issue.” This entry is very informal, but we think it is sufficient, by the aid of the rule omnia prcesumnntur rite esse acta, to show that the will was duly proven.

Every Court, where the subject matter is within its jurisdiction, is presumed to have done all that is necessary to give force and effect to its proceedings, unless there be something on the face of the proceedings to show to the contrary. This must be the rule, -unless we adopt the conclusion, that the Court is unfit for the business which by , law is confided to it. Beckwith v. Lamb, 13 Ired. 400. The will is sent as a part of the case. It shows upon its face, that there were two subscribing witnesses, of whom Henry Sikes was one, so wo must presume that ho was duly sworn, and proved its execution by the testator, and that the other witness and himself subscribed it as witnesses in the presence of the testator. There is nothing to show to the contrary, and the inference is, that the Court knew how to take the probate of a will, and saw that it was properly done. The presumption is strengthened in this case, by the fact, that the property has been enjoyed under it ever since the year IT84. In some cases, it is held, that long enjoyment is, of itself, sufficient proof of an ancient document.

2nd. The defendant excepts, because there was no registration or order for registration at September Term, 1811, when the report of the Commissioners, 'who were appointed to divide the land of Matthew Stephens, was returned and confirmed. This difficulty was removed by the subsequent proceedings-. The power of the Court to amend its record, and the effect of the amendment when made, is settled. Philips v. Higdon, Busbee 380; Galloway v. McKeithen, 5 Ired. 12.

3rd. The defendant excepts, because there was no judgment against John Stephens; for the judgment is for the penalty of the bond, without. stating the amount. The pleadings show that the penalty was $500; the minute of the judgment* is, therefore, sufficiently formal, and is aided by the rule, id oertum est' He also excepts, because the judgment w'as taken against John Stephens, who was an infant, and appeared by attorney, and he might also have excepted because the judgment; being upon a bond with a condition, there should have been an entry at the foot, that the execution was to be satisfied by the payment -of damages and costs. These objections, however, were not-open to the defendant, and could only be taken advantage-of, by a writ of error. The judgment, although erroneous,, is of full force and effect until it be reversed.

4th. The defendant excepts,, because the execution did not correspond with the judgment in this: the one is in the name of John F. Smith, Chairman, &e.,; the other omits the name of John E. Smith, and' simply says, “which the Chairman,5' &c. “ lately in our said Court recovered,” &c. This variance is cured by the act of 1848. Green v. Cole, 13 Ird. 425; Rutherford v. Raburn, 10 Ird. 144.

5th. The defendant excepts, because the Court refused to decide whether the line.of Oglesby terminated at H or at P, and left that as a question of fact to the jury. What are the boundaries in a tract of land is a matter of construction, and should be decided by the Court. Where the boundaries are, is a question of fact. Hurley v. Morgan, 1 Dev. and Bat. 425; Tatem v. Paine, 4 Hawks, 64.

For this error the defendant would be entitled to-a venire de novon unless the jury, in finding that the line terminated at H, have decided the question correctly : for, if so, 'the result is the same as if it had been so decided by the Court, and the error is thus cured by the verdict. State v. Craton, 5 Ired. 163. It is agreed that the deed to Oglesby begins at S and runs to M it then- runs along the line of Lydia Guard’s patent line, and Roger Bratcher’s patent line, and terminates at H, or runs on to P'; then North to the patent lines, and with them to the beginning. From M, the call of the deed is westerly along Lydia Guard’s patent line and Roger Bratcher’s, so far as the corner of the second lot, of the piece of land drawn by Daniel Stephens, i.n the division of Matthew Stephens’s land, being the two pieces drawn by Sally Stephens a'nd William Stephens; then along that division line to the patent line of Roger Bratcher ; then along that line to the first station.

In running from M w.estwardly, you come to the corner of lot 2 at H, and the question is, do you stop there, or go on to P ? H is tbe first corner of lot 2 that yon come to; but it is insisted that you must go on to P, the other corner of lot 2, for otherwise the lot drawn by William Stephens will not be included, as the deed requires. Here is a discrepancy, and of course there must be some mistake, and the question is, can the mistake be pointed out by competent evidence so as to explain this discrepancy, and give effect to the deed? We think the mistake is clearly shown to be this: either the parties used the word Daniel, when they meant William, and vice versa; or else they supposed lot 2 had been drawn by Daniel, whereas lot 3 had been drawn by him, and lot 2 by William.

The division is referred to in the deed: by reference to it, it appears that the .land was divided into five lots,'beginning at lot 1, and going East to lots 2, 3 4, 5; and that lot 1 was drawn by Joseph, lot 2 by William, lot 3 by Daniel, lot 4 by Sally, and lot 5 by Matthew. So the mistake is explained upon the face of the division which is referred to by the deed. Again: if H is the terminus, then a line North and then East to the beginning includes two lots or pieces, which corresponds with the deed; but if P is the terminus, then running to the beginning will include three lots or pieces, and contradict the deed. Again : the call is along the patent line so far as the corner of the second lot. Upon what principle can you pass this corner which you come to first, and go on to the other corner of lot 2 ? These considerations point out the mistake, and put it beyond all question that H is the terminus. Our conclusion, that Daniel wras used b^ mistake instead of William, and so vice versa, and that the mistake does not affect the validity of the deed, is fully supported by the cases, in which it is held that, where the call of the first line was South, and of the third line North, the one word may, by competent evidence, be shown to have been used instead of the other, as where it is shown by marked lines and natural boundaries, about which there is less apt to be a mistake than in writing one word for another; and where it was allowed to be shown that a tract of land was situated on the West side of a creek, ah though the deed described it as lying on the Hast side of the ereek. Houser v. Belton, 10 Ired. 358.

Judgment affirmed,'