Summary
In Carrier v. Hampton, 33 N.C. 307, the probate of a deed was before a judge of the Superior Court, and he certified "that Jefferson S. Hampton, being duly sworn, testified that Edmund Tomberlin, the subscribing witness to the within bill of sale, is dead, and that the signature of Jonathan Hampton, the grantor therein, is in the proper handwriting of the said grantor."
Summary of this case from Leatherwood v. BoydOpinion
August Term, 1850.
1. Where the subscribing witness to a deed for land or slaves and the maker are dead, or cannot be procured, whereby it cannot be acknowledged by the one nor proved by the other, recourse may be had to the common-law mode of proof, for the purpose of registration, as for the purpose of making the deed evidence at common law generally.
2. In such a case the party would be under the necessity of giving similar evidence of the execution on the trial.
3. A mere mark or cross of an illiterate subscribing witness, prima facie, cannot be identified, and therefore the instrument may be read upon proof of the handwriting of the party.
4. Where from the certificate of the probate of a deed it only appeared that the witness swore, in general terms, that the signature of the party was in his handwriting, but he did not state upon what grounds he formed his opinion nor by what means he had acquired a knowledge of the handwriting of the party: Held, that this evidence gave no authority to grant an order of probate.
5. Where the plea of fully administered is found in favor of the administrator, and, upon a scire facias against the heirs, they come in and plead that the administrator has assets: Held that upon the trial of the issue upon that plea the heirs may give evidence of any assets received by the administrator, either before or after the trial of the original suit, and up to the time of the plea pleaded to the scire facias.
APPEAL from the Superior Court of Law of McDOWELL, (308) at Fall Term, 1849, Ellis, J., presiding.
J. G. Bynum and N.W. Woodfin for plaintiff.
Avery, G. W. Baxter and J. Baxter for defendant.
This action was commenced in October, 1843, and is trover for slaves, which the defendant claims under a bill of sale from his father, Jonathan Hampton, the intestate of the plaintiff. On the trial of not guilty pleaded, the plaintiff produced as witnesses two other sons of the intestate, who executed to the plaintiff releases for their respective distributive shares of the personal estate and effects of their deceased father, and to whom, also, the plaintiff executed several releases for any claim for the costs of suit. The defendant still objected to their competency, upon the following grounds, which they stated on their voire dire: Certain creditors of the intestate instituted actions against the plaintiff for debts of the intestate, in which he pleaded "fully administered" and no assets, which were found for him; and the creditors took verdicts ascertaining their demands and signed judgments therefor, according to the statute, and then issued writs of fieri facias against the witnesses and the other heirs, to have execution against the real estate, in which the heirs had not yet pleaded, but the same were still pending. Upon the death of their father, lands descended from him to the witnesses, and, after the expiration of two years from his death, the witnesses respectively sold and conveyed their shares: the one without and the other with general warranty. The court was of opinion that upon the collateral issue, which the witnesses might have, the question of fully administered and no assets extended only to the truth of the administrator's plea, when the same was pleaded, and, therefore, that the interests of the witness could not be affected by the result of this suit, and they were received and permitted to give evidence that the intestate had the slaves in his possession and use and claimed them as his own up to his death, which occurred several years after the date of the alleged bill of sale to the defendant, and, also that during that period (309) the defendant did not claim them.
The defendant then produced his bill of sale, which purported to be attested by one Edmund Tomberlin as the subscribing witness, who did not write his name, but made his mark in the form of a cross, in the manner usual with illiterate persons; and, having proved that the said Tomberlin was dead, the defendant moved to give the deed in evidence upon the probate and registration thereof. The probate was before a judge of the Superior Court on 6 July, 1846; and he certified "that Jefferson S. Hampton, being duly sworn, testified that Edmund Tomberlin, the subscribing witness to the within written bill of sale, is dead, and that the signature of Jonathan Hampton, the grantor therein, is in the proper handwriting of the said grantor; and, thereon, it was ordered to be registered. Upon objection by the plaintiff, the court refused to admit the instrument in evidence. After a verdict and judgment for the plaintiff, the defendant appealed.
The deed to the defendant was, the Court thinks, properly excluded. As creditors and purchasers are not parties to the controversy, but only those who are party and privy to the instrument, the old cases would have allowed it to be proved on the trial, as a conveyance at common law, and read, without reference to its attestation, probate and registration, under the acts of 1784, 1789 and 1792. Cutlar v. Spiller, 3 N.C. 61; Rhodes v. Holmes, 9 N.C. 193. But the Court does not further consider that point, as it was not raised on the trial, and the defendant insisted, on the contrary, that (310) he was entitled, under the statute, to read the deed on the probate and registration appearing on it, without further proof of its execution. Rev. St., ch. 37, sec. 21. But that depends upon the question whether there has been that due probate and registration which the act meant, and the Court is of opinion there has not. The case that occurred is not expressly provided for in the act. But there is no hesitation in holding that a deed for land and slaves would not be avoided by the accidental circumstance of the death of the subscribing witness and of the maker, whereby it could not be registered upon proof by the one or acknowledgment by the other. In such a case, we hold that recourse may be had to the common-law mode of proof for the purpose of registration, as for the purpose of making the deed evidence at common law generally. But it would follow that, in such case, the party would be under the necessity of giving similar evidence of the execution on the trial, since it is clear that the provision of the act which dispenses with the subscribing witness upon the trial, and admits the deed on its probate and registration, supposes the probate and registration, thus received, to have been upon the evidence of that witness or the acknowledgment of the party, or in some other way specified by the statute. In the present case no such proof was offered on the trial, nor, in the opinion of the Court, was proper and sufficient evidence given to authorize the order for registration. Horton v. Hagley, 8 N.C. 48, shows that point to be open when the instrument is offered to support a title and the defect of the evidence appears in the probate itself. The Court does not concur in one of the objections taken to the probate by the counsel for the plaintiff, that there ought to have been proof of the mark being in the hand of the witness, or, at the least, affirmative evidence that the defendant endeavored and failed to get proof to the mark as being that of the witness; for, although in some very extraordinary instances (311) the mark of an illiterate person may become so well known as to be susceptible of proof, like handwriting, yet, generally, a mark, a mere cross, cannot be identified, and, therefore, prima facie, it stands per se upon the same reason with the case in which the party, after due inquiry, has been unable to prove the signature of the person who, upon the face of the instrument, appears to have written his name as subscribing witness — in which case the instrument may be read upon proof of the handwriting of the party. McKinder v. Littlejohn, 23 N.C. 66; Jones v. Blount, 2 N.C. 238. But the other objection, that the proof of the grantor's handwriting was defective, and so did not authorize the order for registration, the Court deems well founded. The witness deposed in general terms that the signature of Jonathan Hampton was in the handwriting of that person; but he did not state upon what grounds he formed his opinion nor by what means he had acquired a knowledge of the handwriting of the party; and consequently it does not appear that his means of information were such as to render his opinion admissible. Pope v. Askew, 23 N.C. 17; Jackson v. Waldron, 13 Wend., 178. Upon the other point, as to the competency of the sons of the intestate, the opinion of the Court differs from that of his Honor. It is true, the creditor, who sued the administrator, could not in any proceeding of his own, directly against the administrator, either in law or in equity, reach personal assets subsequently received by the administrator. Miller v. Spencer, 6 N.C. 281; Martin v. Harding, 38 N.C. 603. But that arise from the forms of the pleadings and judgment, and the conclusiveness belonging to the adjudication of all tribunals upon matters within their jurisdiction, when the same matters come up a second time between the same parties. But the same operation is not given to a judgment against third persons generally; and the statute enacts (312) in the particular case of creditor, executor and heir, that execution may go against the estate of the heir upon a judgment in a suit against the executor, provided the executor has fully administered or hath not personal assets; and it enacts further that at the election of the heir, a finding in the first suit of fully administered and want of assets shall not bind the heir nor even the creditor, and enables the heir, on the scire facias of the creditor, to take a new issue upon the question of assets with the executor, who is kept in court for that purpose. That is a collateral issue, and the creditor stands by, awaiting the result, for the sake of the right of the other parties, as between themselves; for the law supposes the creditor is to be paid, at all events, by the one side or the other, whichever has the estate of the debtor that is then chargeable; and to that end, if the issue be found against the executor, it gives the creditor execution de bonis testatoris et de bonis propriis. It is apparent that through the rights of the heir the creditor may thus have satisfaction from the personal estate or the executor, when, of himself, he could not get at either. Although those provisions of the law were, doubtless, designed chiefly, if not entirely, for the protection of the heir, yet the creditor also derives, incidentally, a benefit from them. That benefit and protection are necessarily coextensive; and as far as the heir can show assets in the hands of the executor, the creditor is turned over to him and the land of the heir is, pro tanto, exonerated. That was admitted in the argument to be true in respect to such personal assets as the heir may show the executor to have been liable for at the time the executor pleaded originally; making the issue between the heir is, pro tanto, exonerated. That was admitted in the argument to be true in respect to such personal assets as the heir may show the executor to have been liable for at the time the executor pleaded originally; making the issue between the heir and the executor relate back to the between creditor and the executor. But, as the Court conceives, that limits the issue too straitly, and is opposed to both the words and the reason of the law. As the heir has no interest (313) in the question of assets, save only to protect his own inheritance, it is to be presumed from his tendering an issue, that he has real assets, and therefore that the creditor will obtain satisfaction, at least, to some extent. If, then, the collateral issue relates to the executor's plea, the consequence would be that the heir's land might be sold under the judgment, while the executor had ample assets, received, indeed, after he had pleaded or after judgment in the action against him. That, unquestionably, is contrary to the policy of the law, and, we think, the construction of the statute. The law does not mean the land of the heir to be taken upon judgment on a scire facias, if there be personal assets with which the debt ought to be discharged, at time payment is demanded of the heir; for the very purpose is to save the land of the heir, and it ought to be done, if practicable, and without reference to the ability or inability of the executor to pay the debt at any previous period, provided he then have the means. If the heir and the next of kin or legatee entitled to the personalty be the same person, the law could never intend that the executor, upon a technical rule of pleading affecting him and the creditor, should be enabled to withhold the personal estate belonging to this person as next of kin and thereby deprive him of his inheritance. If, on the contrary, different persons fill those characters, it is manifestly unjust that the property of one should be taken to pay the debt of the other; and that, too, when it may be conveniently ascertained, in a pending proceeding, out of which property of the two it ought to be paid. It is true, indeed, that this inquiry cannot be brought down to the day of trial, but, by the forms of judicial proceedings, is stopped by the tender of the issue by the heir. Up to that time, however, the purposes of the law require that the heir shall be allowed to call the executor to account. Hence the statute is, not only that "the heir shall be at liberty to contest the truth of the finding of the issue in favor of the executor," but he may thus contest its (314) truth by a "plea that the executor hath sufficient assets, or hath wasted the same." It was, therefore, erroneous to suppose that the issue is as to the truth of the administrator's plea that he then had no assets. In reality, however, that distinction is not material to the question of the competency of the heir as a witness for his ancestor's administrator, in a suit for property alleged to belong to the intestate; for, unquestionably, the heir would be entitled to satisfaction out of the personalty, no matter when received, for money raised by legal process out of his land, although the creditor to whom the money was paid had lost his remedy against the executor. However it may be between the creditor and the personal estate, that estate must certainly exonerate the real estate or reimburse to it all sums which it was compelled to pay to creditors, and it is a common equity to give relief in such cases. Therefore, although the witness might not be able to charge the administrator upon a collateral issue with these slaves, as they have never been in his possession, and he has, hitherto, been unable to recover them, yet, if he should hereafter do so, they can insist on the return thereout of the money raised out of their land or paid by them in respect of it, and, therefore, it is not competent to them to give evidence that the property was in their ancestor. The releases given by them make no difference, as they give up only their distributive shares as next of kin, and their right, which we have been considering, is as heirs at law, and distinct from the other. Neither is their liability or recourse ever affected by their sales of the land, for the statute makes them answerable for debts, as the land itself would have been, to the value of it, and without any regard to the sale being with or without warranty.
PER CURIAM. Judgment reversed, and venire de novo.
Cited: S.C., 35 N.C. 436; Tooley v. Lucas, 48 N.C. 310; Latham v. Bowen, 52 N.C. 341; Leatherwood v. Boyd, 60 N.C. 125; Starke v. Etheridge, 71 N.C. 245; Rollins v. Henry, 78 N.C. 349; Todd v. Outlaw, 79 N.C. 237; Miller v. Hahn, 84 N.C. 227; Black v. Justice, 86 N.C. 509; Love v. Harbin, 87 N.C. 253; Davis v. Higgins, 91 N.C. 386; Howell v. Ray, 92 N.C. 511, 12, 14; Southerland v. Hunter, 93 N.C. 312; Simpson v. Simpson, ib., 374; Speer v. James, 94 N.C. 423; Anderson v. Logan, 99 N.C. 475, 6; Duke v. Markham, 105 N.C. 138; Quinnerly v. Quinnerly, 114 N.C. 147; Bright v. Marcom, 121 N.C. 87.
(315)