Sutton v. Westcott, 48 N.C. 283, 3 Jones 283 (1856)

June 1856 · Supreme Court of North Carolina

48 N.C. 283, 3 Jones 283

WILSON R. SUTTON vs. STEPHEN WESTCOTT, Sen’r.

Tlie recording of a will without any evidence that the same had boon proved before the proper tribunal, amounts to nothing, so that a copy taken from the will-book of such a writing, does not constitute color of title.

Action of Trespass, quare da-usum fregit, tried before his Honor, Judge Manly, at the Spring Term, 1856, of Currituck Superior Court.

The defendant claimed title to the locus in quo, and offered a paper writing purporting to be a copy from the will-book, of the last will of Stephen Westcott. There was no proof that this instrument had ever been proved, and no verification offered of it on the trial, as an original paper, or as a copy of a paper whose absence was accounted for. Upon the copy offered in evidence was entered, “ Recorded and examined, 9tli day of September, Anno Dom., 1807,” “ Attest. T, Baxter, Clerk pro tem to which was further added this certificate: “I, Joshua W. Baxter, Clerk of the Court of Pleas and Quarter Sessions, of the County and State aforesaid, do hereby certify, that the foregoing is a full, true, and perfect copy of a certain will, made by Stephen Westcott, on the 10th day of August, 1807, and recorded in the will-book from 1719 to ■ 1810, in my office.” Attested by the Clerk, with the seal of tire Court, and dated May 21, 1856.

His Honor, on argument, refused to admit the proof offered; for which the defendant excepted.

Verdict for the plaintiff. Judgment and appeal.

No counsel appeared for the plaintiff in this Court.

Jordan, for defendant.

Nash, C. J.

The sole question upon which the case is before us, is upon the correctness of his Honor in ruling out the paper purporting to be the last will of Stephen "Westcott, under which the defendant claimed title to the locus in quo.

The paper offered in evidence purports to be a copy of the last will of Stephen Westcott. There was no evidence that the original paper had ever been proved before any Court. The copy is taken from the will’s book of the proper County, but by what authority it was put there, does not appear. The registration of the original was of no more effect than would be the registration of a deed, which had not been duly .proved.

It was contended that the paper writing was, at any rate, good as color of title. It could have no such effect. If the original, executed according to the statute, had been produced, and been duly proved on the trial, or if never proved and registered, its absence had been properly accounted for, and the paper offered been properly proved to be a true copy, it (the copy) might have been received as color of title. A copy of a deed can never be considered as color of title until it is shown that a deed did exist of which it is a true copy; so, neither can a copy of an alleged will. See Commissioners of Beaufort v. Duncan, 1 Jones’ Rep. 239 ; Callender v. Shermam, 5 Ire. Rep. 711; Drake v. Merrill, 2 Jones’ Rep. 374. There is no error.

Per Curiam.

Judgment affirmed.