Weaver v. Parker, 61 N.C. 479, 1 Phil. 479 (1868)

Jan. 1868 · Supreme Court of North Carolina

61 N.C. 479, 1 Phil. 479

PINKNEY WEAVER v. JESSE W. PARKER and BENJ. HESTER.

A record of proceedings under the poor debtor law, in favor of one not shown to have been at tbe lime of such proceedings in possession of articles set apart to bim, is not admissible as evidence in a suit for those articles, between third persons.

The burden of proof in the Supreme Court is upon him who alleges error¡ the presumption is against it.

Trover, for a mare and two colts, tried at Fall Term 1867 of the Superior Court of Orange, before Mitchell J.

The defendants claimed title under one John "Weaver, who ■ was shown to have been for a long time in possession of the animals. Evidence of his acts and declarations, whilst in possession to them, affecting the title, was given by both parties. Defendants also offered in evidence a record (dated December 10, 1857) of the proceedings set on foot by John Weaver to obtain the benefit of the poor debtor law— in the course of which it was alleged that the animals had been set apart to him. Upon this point it appeared that the mare remained in John Weaver’s possession as above “until the 7th of December 1857, when tbe defendants took the mare, and a few days thereafter the colts, and sold them as John Weaver’s property,”

The opinion of the court renders it unnecessary to state the facts more at length.

The plaintiff having recovered a verdict in the court below, the defendants moved for a rule for a new trial, which having afterwards been discharged, judgment was rendered and the defendants appealed.

Graham, for the appellants.

The evidence that John Weaver, whilst in possession, caused the animals to be laid off to himself, should have been admitted. AsJcew v. Reynolds, 1 Dev. & Bat., 367; March v. Hampton, 5 Jon., 382; 8. v. Emery,’ 6 Jon., 133.

Nonoood, contra.

Reade J.

-The acts and declarations of John Weaver, while he was in possession of the property in controversy were offered and admitted on both sides during the trial, as explanatory of his possession, The proceedings under the poor debtor laws, at the instance of John Weaver, by which a portion of the same property was allotted to him, were then offered by the defendants for the same purpose and were objected to, and ruled out by his Honor; and the exception to that ruling is the only point in the case as presented to us.

The reason why the evidence was rejected is not stated, and we were at a loss to see any reason for it, until we discovered from the case made for the Supreme Court that the mare in controversy was taken out of John Weaver’s possession by the defendants, on the 7th day of December 1857, and the colts a few days [¿thereafter. The proceedings which were rejected, were dated the 10th day of December 1857: The mare was at that time evidently not in John Weaver’s possession, but had been taken out three days before ; and, although it is not stated, as it ought to have been, whether the colts were also taken out of his possession before the 10th December, but only that they were taken out a few days after the 7th December, yet we must infer that it either appeared that the colts were not in his possession on the 10th, or that it did not appear whether they were or not. In that view of the case his Honor’s ruling was right; and we are to take it to have been right, unless the exception shows that it was wrong.

There is no error.

Per Curiam. Judgment affirmed*