Doe on Demise of Ward v. Hatley, 47 N.C. 88, 2 Jones 88 (1854)

Dec. 1854 · Supreme Court of North Carolina

47 N.C. 88, 2 Jones 88

DOE ON DEMISE OF JOHN WARD vs. WILLIE HATLEY.

To supply the loss of a deed under the Act of 1830, in relation to the destruction of the records of Hertford county, proof that a deed had been seen by several persons and copied by one of the witnesses, having in it the names.of . several creeks, but in what connection was not remembered, also calling for the lands of three individuals, but such proof not establishing any course or dis■tance, nor whether the deed had a seal or whether the word heirs was in it, is not sufficient for the purpose intended.

ActioN of ejectmeNT, tried before his Honor Judge Ellis, at the Special Term of Stanly Superior Court, June, 1854.

The lessor of the plaintiff gave in evidence a State Grant issued in 1795, for 17,880 acres to William Moore and Thomas Carson: A deed from Moore to Carson for all his interest, and the will of said Carson appointing his son John K. Carson his executor, with power to sell the land : He then put in the will of Doctor Thornton of Washington City, devising the land to his wife, Anna Maria and another, and appointing her (Mrs. Thornton) his executrix, with power to sell the same: also a deed from Mrs. Anna Maria Thornton to one Adderton and others, and from them to the lessors of the' plaintiff: Evidence was given, tending to show, that the land in controversy was included in these conveyances.

Thomas Carson died in 1804, and Dr. Thornton in 1818. To establish title from Thomas Carson to Dr. Thornton, plaintiffs alleged that a deed had been executed to him by John IL Carson under the power in his father’s will, and that the same had been destroyed by fire in the burning of Montgomery Court House, in 1843, and proposed to supply the deficiency under authority of the Act of Assembly passed in relation to the Court House in Hertford, and by another Act made to.apply to Montgomery. The proper foundation for admission of secondary evidence, to prove the existence of the deed in question being made, the following testimony was adduced:

Mr. Martín, swore that he was clerk of Montgomery County Court in 1824, when the Honorable John Culpepper, then a member of Congress, as agent of Mrs. Thornton, had a deed proved in Court, from a man by the name of Carson to Doctor Thornton: it was duly proved and certified, .and ordered to be registered and then returned to the said Culpepper : That he did not know what Carson made the deed, nor the boundaries. He remembered that it contained several large tracts in the western part of Montgomery county : that Long Creek, Bear Creek, Mountain Creek, TJgly Creek and Rocky River, ■were mentioned in it in some connection; as to what that was, he was unable to say. He did not remember the consideration of the deed : nor whether the word “heirs” was named in it: nor whether it had a seal, but thought it was in the usual form ; that he saw nothing to make him think otherwise. He further testified, that all the books and papers of the Register’s office were burned with the court house of Montgomery, in 1843.

Lilly's evidence was substantially the same.

One Knight, swore that he was a deputy in the Register’s office in Montgomery, and made a copy of a deed from one Carson to Wm. Thornton for Gol. Barringer, the Attorney of Mrs. Thornton : that it was for a large tract of land, in several tracts, in the western part of Montgomery county, and referred to, and recited grants to Moore and Carson: He did not remember the numbers nor in what connection the deed referred to the grants to Moore and Carson : nor the given name of Carson. Long Creek, Bear Creek, Mountain Creek, Ugly Creek and Rocky River, were named' in it; also the lands of Barney Dunn, C-eorge Whitley and one Udy, but did not recollect in what connection : that he did not remember the boundaries of the lands set forth in the deed, nor the description thereof: nor in what direction the lines of the survey ran; nor their length, nor the precise quantity of land specified.He did not remember whether a consideration was stated or whether there was a seal. The deed appeared to be in the usual form.

It appeared from other testimony, that Dr. Thornton had come into the State in, 1805, soon after Carson’s death, and remained several days near.the lands in question, making claim to them, and from that time they were called “Thornton’s lands.” It appeared from the face of the grant to Moore and Carson, that the land is described as lying in the fork of Rocky Biver and Long Creek and Bear Creek, “ beginning at a red oak, near Conrad Woody’s land,' on the waters of Bear Creek.” One of the lines crosses “ Bear Creek,” and runs to a stake in Barnydun’s line; with it south 52,poles to a large poplar, his corner in Cobble’s line, &c.” The fourth call after this is for a hickory, George Whitley’s corner.

The plaintiff’s counsel contended, that from the evidence, aided by the provisions of the Act passed on the subject, the jury should infer that there was a deed from John K. Carson to William Thornton, and that enough appeared from the evidence to enable them to locate the land, and to identify it as that mentioned in plaintiff’s declaration.

His Honor charged the jury that there was no evidence that a deed was ever made from John K. Carson, as executor, to William Thornton, and that the contents of the deed relied on, did not sufficiently appear, to enable the Court to say that it was such a deed as would convey the land, or to tell the jury what were the boundaries specified in it, so that they could ascertain where the land was located; and for these reasons the plaintiff was not entitled to recover.

Yerdict for defendant. Buie-for a venvre de novo. Buie discharged. Judgment and appeal.

Mendenhall and J. H. Bryan and Moore, for plaintiff.

Ashe, for defendant.

Battle, J.

The defect which the lessors of the plaintiff admit that there is in their chain of title, their counsel contend is supplied by the testimony of the witnesses Martin, Lilly and Knight, aided by the 4th section of the Act of 1830, chap. 68, entitled. “ An Act for the relief of such persons as may suffer from the destruction of the records of Hertford county, occasioned by the burning of the court house and clerk’s office of said county,” the provisions of which were, by the Act of 1844, chap. 53, extended to the county of Montgomery, whose court house had then been recently burnt also.

We have given to the' arguments of the counsel all the consideration in our power, without being able to come to the conclusion to which they have endeavored to bring us. If we admit every thing else for which they contend, there remains still a total want of proof as to the boundaries of the deed which they seek to establish. Two of the witnesses only, to wit, Lilly and Knight, profess to have any recollection of the contents of the deed, and they both say, expressly and distinctly, that they do not remember the boundaries set forth in it. They say they remember the names of certain rivers and creeks, and of certain men, but in what connection they occur they cannot recollect. Surely, no Court on earth, could tell a jury what were the boundaries of such a deed, and it is very certain that no jury coiild find where they were from such a description. Nor is the defect aided in the least by the section of the Act to which the counsel refer. That section provides, “ that any person likely to be injured by the loss of his deed in the fire which consumed the court house, and who shall be desirous of establishing the same, shall proceed, after giving-thirty days notice to all parties whose lands may join in any manner, the land, the metes and boundaries of which are about to be established, to take the testimony of one or more credible witnesses, and to call upon a proeessioner or other lawful surveyor, to go upon the land and ascertain the metes and boundaries and the number of poles, contained in each line; and such proeessioner or surveyor is hereby required to file a certificate and plat of said land in the next succeeding County Court, setting forth the name of the claimant, on what water courses the land lies, what is the number of acres, the corners and the number of poles in each line; and such certificate and plat shall be recorded by the clerk, and shall, as to the parties who have had notice of such survey, have the same faith, validity and effect, as the original deed would have had.” Then follows a proviso as to what shall be done in case aline is disputed ; and the next succeeding section provides what shall be done when the correctness of the copy of the deed which is to be established, is called into question.

We are at a loss to conceive how the lessors of the plaintiff can avail themselves of the benefit of these sections without acting in accordance with their i-eqnisitions. But even supposing that they can, and by the spirit of the Act, they are allowed to proceed upon less testimony, in proving their lost deed, than would be required of them under other cicuinstan-ces, still, they must furnish the Court and jury with some evidence of the boundaries of the land described in their deed. One of the witnesses testified that he “ did not remember the boundaries named in it; he recollected that it contained several large tracts of land in the western part of Montgomery; that Long Creek, Bear Creek, Mountain Creek, Ugly Creek, and Rocky River, were mentioned in it in some connection, as to which he was unable to say.” The other witness stated that “in it (i. e. the deed) Long Creek, Bear Creek, Mountain Creek, Ugly Creek and Rocky River were named, as well as the lands of Barney Dunn, George Whitley and Udy, but did not recollect in what connection; that he did not remember the boundaries of the land set forth in the deed, nor the description thereof, nor in what direction the lines of the survey run, nor their length, nor anything relating to their boundary ; nor did he remember the precise quantity of the land specified.”

These are the only witnesses who profess to testify as to the description of the land contained in the deed, and we feel ourselves bound to say that they furnish no evidence of what the boundaries were, and this total defect of testimony is not aided in the least by any recitals in the wills of either Carson or Dr. Thornton. On that account alone, the Judge was justified in telling the jury that the lessors of the plaintiff were not entitled to recover.

Judgment affirmed.

Pee CueiaM.