Opinion
(December Term, 1859.)
A certificate, in writing, by one still living, stating the payment of money, is not admissible evidence of the fact of such payment.
EJECTMENT, tried before Saunders, J., at the last Fall Term of DUPLIN.
(132) Allen for plaintiffs.
W. A. Wright for defendant.
The case is presented upon the single exception to the ruling of his Honor below in admitting the certificate of Samuel Stanford, which goes to state that before the day of payment fixed in a mortgage of the premises in question to him, the mortgage money was all paid off. This certificate was made after he had sold the premises to the lessors of the plaintiff, who showed title under his deed, he, the said Stanford, at the time of the trial being alive. The plaintiffs insisted that this certificate was inadmissible, because it was not the declaration of Stanford, not under oath, and because he could have been examined as a witness.
Verdict for defendant, and appeal by plaintiffs.
It appears from the bill of exceptions (so far as we are able to understand it) that the lessors of the plaintiff claimed title to the premises under a deed of mortgage executed by their father to one Samuel Stanford on 2 April, 1838, providing for the payment on 1 April, 1839, of certain debts therein named, to which the said Stanford was surety, and a deed from Stanford, the mortgagee, to them, made on 23 December, 1839. The lessors then offered evidence to show that the defendant claimed under a sheriff's deed, on an execution against their father, of a teste later than the deeds under which they claimed, and rested their case.
The defendant, among other grounds of defense, contended that all the debts mentioned in the mortgage deed made to Stanford had been paid on or before 1 April, 1839, so that the title of the property therein conveyed had become reinvested in the mortgagor, and left nothing in the mortgagee to be transferred to the lessors of the plaintiff by his deed of December, 1839. To sustain this position the defendant offered in evidence a certificate, dated January, 1840, given by Stanford, the mortgagee, which contained an acknowledgment that all the debts intended to be secured by the mortgagee had been fully paid. Stanford was living, and the plaintiff's lessors objected to the evidence, but it was received by the court. In this we think there was error. The certificate given by Stanford was nothing more than a written declaration made by him, not under oath, and as he was then living, his testimony might have been had either by producing him as a witness at the trial or by having his deposition taken in the usual manner. Indeed, it appears that his deposition had been taken to prove other facts, and was used at the trial for that purpose. In Finch v. Ragland, 17 N.C. 138, it was held by the Court that written receipts for money of living persons are not strictly legal evidence of disbursements by an administrator, especially where the money is due by account. The reason (133) is, manifestly, that the receipts are nothing more than written declarations of persons who, being alive, might be examined as witnesses on oath. We are aware that such written receipts are often received and acted upon, but it is only because (where there is no suspicion of unfairness of fraud) the parties do not choose to object to them. There are some cases where, if a person who has peculiar means of knowing a fact makes a declaration or a written entry of that fact which is against his interest at the time, such declaration or entry is, after his death, evidence of the fact as between third persons. See Peck v. Gilmer, 20 N.C. 391, and the cases there cited. That rule is clearly inapplicable to the present case, where the person who gave the certificate is still living.
We are not to be understood as intimating that the certificate in question was given under such circumstances as that it would have been admissible even if Stanford had been dead; but as he was alive, and might have been examined as a witness, it was, on that ground, and without reference to any order, clearly improper to receive it.
The judgment must be reversed, and a venire de novo awarded.
PER CURIAM. Reversed.
Cited: Smith v. Moore, 142 N.C. 290.