Doe on the demise of McDougald v. McLean, 60 N.C. 120, 1 Win. 120 (1863)

June 1863 · Supreme Court of North Carolina

60 N.C. 120, 1 Win. 120

Doe on the demise of JOHN McDOUGALD v. ALLEN McLEAN.

A person, whose land has been sold at sheriff’s sale, is a competent witness in an action of ejectment .against the purchaser at such safe, to show that his own title was defective.

Any one wko had ,»n opportunity of knowing and observing a -person, whose sanity is impeached, though bemay notbe an attesting witness, may-givehis opinion of-such -person’s'capacity to make a deed or will.

Where it is established (bat the deed., offered by one of the,parties in ejectment, -claiming zander the same person with the other, is void, he is not es-topped from denying the title of the other pasty.

AotrioN of ejectmeNt, tried before Howaed, J,, at the Fall Term, 1861, of Harnett Superior Ooprt.

The plaintiff’s declaration included three tracts or pieces of land. The lessors of the plaintiff showed by grant and deeds a good title to two of the tracts in oné Hugh McDougald — - tbe -death of McDougald, asd that they were bis heirs-at-law. 'They also showed the possession of the defendant at the time the declaration was served, of all three tracts, but .offered no •evidence of title -as to the third tract.

The defendant then offered, in evidence, a deed from Hugh .McDougald to one McPhail — a judgment, execution, levy, sale, i&c., as the property of McPhail, and a sheriff’s deed to himself. The deed of Hugh McDougald and the sale and deed of the sheriff -covered all three tracts.-

The plaintiff then offered evidence of Hugh McDougald’s 'incapacity to malee the deed. Among his witnesses, he tendered McPhail, to whom the deed was made, The defendant objected, but the objection was over-ruled and defendant excepted.

One Atkins was introduced as a witness, he stated that he had been deputy sheriff during the year in which the deed was made; that he knew McDougald, and did some business with him. The plaintiff proposed asking the witness “ whether, in his opinion, McDougald was, during that year, competent to transact business or make a deed.”

The defendant’s counsel objected to the question, and in■sisted that Atkins, not being a witness to the deed, could only ■describe the acts and sayings of McDougald, and was not, in law, allowed to express his opinion. The witness was permitted to give his opinion, which was, that he did not thank he had mind enough to protect himself. Defendant excepted.

The Court charged the jury, that as the dafendant had produced the deed from McDougald and claimed title from him through MePhail, he was estopped from denying his title, ■and, therefore, if they were satisfied that McDougald wasmofc competent to make a deed at the time the deed purported to have been a-nade, the plaintiff was entitled to recover not only the two traets, but the third also. Defendant excepted.

Yerdict-and judgment for plaintiff. Appeal by defendant

_ZY. McKay, for the plaintiff.

W. £. Wright and Bvxoton, for the defendant.

Battle, J.

The objections to the competency of testimony •were untenable, and bis Honor was right in so deciding.

1. MePhail was competent to testify for the plaintiff. His testimony was against his interest. In proving that the deed from McDougald to him was void on account of the incapacity of the grantor to make it, he showed that he was liable to the defendant, who was the purchaser of the land as his, under a sheriff’s sale ; see Revised Code, eh. 45, seg. 27.

2. The case of Clary v. Clary, 2 Ired. 78, has settled the rule, that in" the case of a deed as well as of a will, any witness, though he may not be an attesting one, who has had opportunities -of knowing and observing a person, whose sanity is impeached, may not only depose to the facts within Ms knowledge, but may also give his opinion as to the sanity or insanity of such person.

Upon the question of estoppel, his Honor’s opinion was wrong. If the deed from McDougald to MePhail was a nullity, because of the grantor’s insanity, we cannot see bow it could estop the grantee or any person claiming under him. It certainly did not estop the grantor, and a primary rule in the doctrine of estoppels is, that to be of any force, t.hey must be mutual. Henee, the defendant was not estopped to take advantage of the fact, that the plaintiff’s lessors could not show title to the third tract of land described in the plaintiff’s declaration. It was error, then, in the Court to instruct the jury, that the lessors were entitled to recover that tract, and for the error, thus committed, the judgment must be reversed, and a venwe de novo awarded.,

Pee Cueiam, Judgment reversed.