Hughes v. Debnam, 53 N.C. 127, 8 Jones 127 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 127, 8 Jones 127

WILLIAM H. HUGHES v. JOHN B. DEBNAM.

Where the charge of a Judge is in favor of a party, such party cannot make it a ground of objection.

Where there is doubt, whether or not a subscribing witness to an instrument signed it before the donor, it was Held that in the absence of proof to the contrary, the presumption is, that the donor signed it first.

Slight and immaterial mistakes in the registration of a deed of gift, will not avoid it.

A square piece of paper affixed with a wafer to an instrument, opposite to the name of the donor, in the place where the seal is usually placed, will, in the absence of proof that the donor intended otherwise, be valid as a seal.

Where, in an action brought to recover the value of certain slaves, the plaintiff sought to set aside a Conveyance of them to a daughter, and offered evidence to show that the donor liad grand-children, who were poor and in need of her bounty, it was Held competent for the defendant to introduce in evidence, in order to rebut this testimony, a conveyance by the donor of other property to these grand-children.

“The 16th section of the 37th chapter of the Revised Code, makes a certified copy of a registered deed competent evidence.

.It is sufficient if a subscribing witness, at the execution of the instrument, had mind enough to understand the obligation of an oath, and to prove the capacity of the donor and his execution of the deed.

This was an action of trover for the value of certain slaves, tried before Saunders, J., at Eall Term, 1860, of Granville Superior Court.

The plaintiff offered evidence, tending to show, that- the slaves in controversy, were the property,of his intestate, Lucy Ooghill, and. were in her possession, at the time of her death, and that the defendant converted- the same after her death, and-, that they were of a. certain value.

Defendant claimed the slaves under, a gift from the-intestate, Lucy Ooghill, to his wife, who was the daughter of intestate, and'in support of his claim, offered a writing, dated the-25th of February, 1850, purporting to convey the slaves for-love and affection to plff’s wife,, and to have been executed by intestate-and attested by one William, L; Andrews. To prove-the said-writing,.defendant called one Kittle, who. testified; that the-signature, purporting to be Lucy Cogliill’s, was genuine, and that William J... Andrews-wap dead, and that the-signature, purporting-to be his, was genuine; There was upon the- paper-writing, just under the name-of the attesting-witness, Andrews, an appearance that something had been written and cut off.. The witness-; Kittle, on- his examination by defendant, stated that the remains of what had' been-cut off, were, in his opinion, the top. of the letters of the name of Lucy Ooghill, the donor, and defendant’s counsel insisted that such was the fact. Plaintiff insisted that, if that was true, it was a spoliation and> avoided the instrument, unless the defendant could" explain it away; . Defendant’s counsel insisted for explanation, that supposing it to be-so, the name was put there by mistake and cut off" before the execution of the paper.

The Judge charged the jury that it was all supposition, and that there was no evidence that any name ever had been there or ever had been cut off, except what had appeared from the face of the paper itself, but, that if the jury should believe, from their inspection of the paper, that there had been a name to the paper, put there as a witness, and that it had been cut off, that would be such- a spoliation as would' destroy the instrument, and that was a fact for the jury.

Plantiff contended that Andrews’ name was the first under the attesting clause, and that some other name was put under his, and that the presumption was that the lower name was last in order of time, and that if that name was Lucy Coghill, as insisted on by defendant, then, the presumption was, that Andrews attested before Lucy Coghill executed it* and that that was not a sufficient attestation, and asked-his Honor so to instruct the jury, which he declined to do.. Pl’ff. excepted.

"When this paper-writing was offered, pjáihtiff objected, that it had not been registered. Defendant introduced the public register and his book, from which it appeared that the writing had been correctly copied upon the book, except that the word “ said,” preceding the word “ property,” was not upon the book and was in the writing, and Except that at the end of Lucy Coghill’s name on the book, there was written the word “ seal” with a scrawl around it. The writing, when offered, had not the word “ seal” and ■ the scrawl, but- in . its place had a piece of paper about three quarters of an inch square pasted on with a wafer. His Honor, admitted- the writing in evidence. Plaintiff; further contended, that the square piece of paper and wafer was not itself a seal, and asked his Honor so to charge, which he refused to do. But charged the jmy, that the square piece, of paper and .wafer was itself a seal, if they believed it had been so intended by the donor. Plaintiff,excepted.

Defendant asked the witness, Kittle, if Lucy. Coghill was not much attached to defendant’s wife. He answered, yes. Plaintiff then asked, if she had not other children and grandchildren, to whom she was equally attached, some -of whom, especially her MeOraw grand-children, were poor, and whether the defendant was in easy circumstances. To both of these questions he answered, yes. Defendant then, offered in,evidence a copy from the register’s book of a deed of gift of other property by Lucy Coghill, to certain of her McCraw grand-children, dated 5th of March, 1850. Plaintiff objected to this evidence upon two grounds : 1st. That the original would not be evidence! and 2nd, even if the original would be, a copy was not. His Honor admitted the evidence. Plain-excepted.

The plaintiff offered evidence, tending to show, that the attesting witness, Andrews, was before, and at the time of the attestation, of insane mind. And asked his Honor to instruct the jury, that if he was insane at the time of attestation, then he had not attesting capacity and was not a competent attesting witness ; and further, that if the jury believed, from the ■evidence, that the mind of Andrews, at the time lie subscribed the paper-writing, was diseased and unsound, then he was incompetent as a subscribing witness, and the paper-writing was void, even though he might have understood the obligation of an oath, and been able, if then examined as a witness, to tell that Lucy Coghill signed the paper-writing and he subscribed it as a witness; and still further, that if he was insane, he had not legal capacity to attest the paper-writing, no matter what else he could or could not do. His Honor refused the instructions, and charged the jury as follows : “The act of Assembly requires a gift of slaves to be in writing, signed by the donor, and subscribed by a credible witness.— That if the witness had capacity to understand the obligation of an oath, so as to be capable of proving the execution of the instrument and the capacity of the donor, he would be a competent witness. But if the jury should believe the mind of the witness to have been so far affected at the time, as to have rendered him incapable of understanding the obligation of an oath, then he was not a competent witness, and they should find against the deed. Plaintiff excepted.

Yerdict and judgment for defendant. Plaintiff appealed.

Gilliam, Lanier and Eeade, for the plaintiff.

Miller, Graham and Eaton, for the defendant.

Battle, J.

It is a matter of regret with us, that we have not been favored with an argument for the plaintiff, for by the aid of such an argument we might have been enabled to perceive more force in his exceptions, than we have ourselves as yet discovered. The errors assigned in the bill of exceptions, have all been considered by us, and in not one of them do we find anything of which the plaintiff has any just cause of complaint.

The exception, founded upon the supposition that there were two subscribing witnesses to the alleged deed of gift, and that the name of one of them had been cut off by the defendant, cannot be made a ground of objection, because, upon it, the charge of his Honor was in favor of the plaintiff. The other objection, urged in connection with the first, that from the inspection of the instrument, it is to be presumed that tire name of the subscribing witness, Andrews, was put there before the execution by the donor, is equally unavailing to the plaintiff; because, the presumption was just the reverse, to wit, that in the absence of proof to the contrary, all things connected with the execution and attestation were rightly done. Omnia jpresutmmi/wr rite este aeta.

The exception that the deed was not registered because there were some mistakes 'in the registration, is completely met and answered by the case of Van Pelt v. Pugh, 1 Dev. and Bat. 210, where it was held that slight and immaterial mistakes in the recording of a grant, will not avoid it. Here, the mistakes were both slight and immaterial, and we know of no difference of principle in this respect between the re*cording of a grant, and the registering of a deed of gift.

The objection to the piece of square paper, and wafer being taken as seal, has no foundation whatever. It is certainly as much a seal, when intended by the party as such, as a scrawl, with the word “seal” written in it, can be j and there was no ’evidence that it was not put there as the seal of the donor-, when she signed the instrument. In the registration of the instrument, the register could do no more than make a symbolical seal to stand as a copy of the actual seal annexed to the original deed.

The original deed of gift, from the donor to some of her grand-children, would have been competent as evidence in reply to the proof offered by the plaintiff, that they were poor and needed the aid of their grand-mother’s bounty. In Warren v. Wade, 7 Jones’ Nep. 494, similar evidence was held to be admissible to repel an inference sought to be raised, that the deceased, whose will was offered for probate,, had been induced to execute the script, by the exercise of undue influence over him, because he had given his property away from the person for whom he was under a primary duty to provide. As the original deed would have been competent, the 37th eh. and 16th sec. of the Nev. Code, makes a duly certified copy from the register’s books, also competent as evidence.

As to the exception, in relation to the insanity of the subscribing witness at the time of the execution of the instrument, we hold that the charge of his Honor, was substantially correct. If the witness had, at that time, mind enough to understand the obligation of an oath, and to be able to prove the capacity of the donor, and her execution of the deed, it was all that the law required j see 1 Green, on Ev., sec. 365 ; Archbolds Grim. PL, 135.

There is no error.

Per Curiam,

Judgment affirmed.