Doe on demise of Wagstaff v. Smith, 9 N.C. 45, 2 Hawks 45 (1822)

June 1822 · Supreme Court of North Carolina

9 N.C. 45, 2 Hawks 45

Doe on demise of Wagstaff v. Roe and Charles Smith.

From Granville.

.<4 I v"..n b'-it in Bjectment proraiccc? dfcc'á to Kirr ■'£ lo shew that lu; v.iu coiiimon ivitii llic lüsior o,’c'jt--í'i;-',ií;Íí'- »»;:;[/) to sbew ti-. •• tbií Defendant claimed t. e wlioltt Iriví, icuú a csa-f;fieá co» pj oí'h deed to íiie íloieii'íaiit, by wh'‘ \ another íiamiant of i’iain-lii’s fa.'tn'; si liad conveyed it to the dado ’ f1 till. 'do ‘utroduction of thin co.iv, without a previous uot’co to produce the original, was in;<dc d:e wound of a motion Sir a new #r;al, mid on the argument of the model'. uvf'ndant refused to • pport he gi'oiU'dtoJcen, by an affidavit be claimed nothinff unde' the deed, a copy of which had been read ; it was held, that his refusal warranted ,i ritronjj presumption that 1;/ did claim under the deed, and as no injustice appeared to have been done by the verdict, a new trial was refused.

Ejectment* Hi chard Duty being seised of a tract of land, died, having Srst made his IwH will aud testament, in wSnieh ite devised as follows, 06 Ii will that my estate be e'jijsdly divided between my eleven children, that is to say, George, Eichard, Asir, Susannah, Benjamin, Thomas, Itdieii, Sache!, Elizabeth, SamiieJ aud Sarah.5’— He appointed his sons George and Eichard, executors, aud directed tl.at ids lands should remain in their hands ■until his youngest child was of -age, and at that time that they should fee said in his own family. The lessor o»’the Haintiff claimed the shares of four of the above named devisees, and deduced title as follow»: Benjamin purchased the share of Jite, and conveyed it, together ■with his own, to the Plaintiffis* lessor by deeds of the fth and I Oth of November j Thomas and tachar:! also, who it was contended, had sold their ohnre «,«> benjamin, but executed so deed, by direction of Betijawin, conveyed to IMaint ifis lessor, their shares respectively,

One James Smith, it appenm!, had also claimed tli© above named four shares, by virtue of a parchase undo at a sheriffs sale in 1308 or ¡809, on an enecutioa against Benjamin. The deed from Benjamin to Wagstafi, tha lessor of the Plaintiff, was prior to the judgment on which this execution issued.

The Defendant produced deeds to himself for the shares 0f Elizabeth, Sarah, Samuel, Susannah and Rachel, to shew that he was a tenant in common with the lessor of the Plaintiff, and admitted that he was in possession.

Plaintiff then introduced evidence to prove an ouster ; and to shew that .Defendant laid claim to the whole Sand, offered to read a certified copy of a registered deed from James Smith to the Defendant, for the four shares claimed by the Plaintiff.

The evidence was objected to, on the ground that no notice to produce the original had been given, but asoné witness swore that he had heard the Defendant saj lie had a deed from .fames Smith for these four shares, and a bond for his security, the objection was overruled, and the copy was read.

The Defendant then introduced witnesses to prove that the. conveyance made by Benjamin to the Plaintiffs’ lessor was to hinder and defeat creditors, and therefore was fraudulent; and also, that the conveyances made by Thomas and Richard, to Wagstaff, by Benjamin’s direction, were without any consideration moving from Wag-staff to them, and were also fraudulent and void as against Benjamin’s creditors.

On this point, the Jury was instructed, that as it did not appear that Thomas and Richard were debtors, the conveyance made by them could not be intended to defeat their creditors, and that therefore, Plaintiff, notwithstanding this objection, was entitled to recover their two parts. A verdict was rendered accordingly, and Defendant moved for a new trial, because, among other reasons alleged, the copy of the deed from James Smith to the Defendant, was improperly receive-'’ l;i evidenef. h: the argument, on the rule for a new • rial. Plaintiff contended, that the Defendant, who was then present in Court, should support the ground taken, by an affidavit stating that he did not claim under the deed from J ames Smith, a copy of which had been read in evidence ; the Qefen-slant declined making such an affidavit, and the rulo was discharged, and from the judgment rendered pursuant to the verdict, Defendant appealed.

Taylor, Chief-Justice,

delivered ihe opinion of the Court.

The purpose for which the registered copy of the deed, from James Smith, to the Defendant, was offered in evi-dente, was to shew tiiat the latter claimed title to the w' ole land, and that the agreement, under winds he entered, had expired, if he did not claim under that deed, injustice was done him by its admission; if he did so claim, it tended to the right decision of the questions in dispute. The only advantage iso could gain, by having no!ice to produce the deed, was, that he might come prepared with evidence to repel the inferences which might be drawn from the deed. But, as upon a motion for a new trial, he refused to deny that he claimed under the deed, it warrants a strong presumption that he did j and, therefore, (without giving an opinion as to the admission of the copy) as it does not appear that any injustice has been done by the verdict, the motion for a new trial must be overruled.