Opinion
December Term, 1849.
A party may give in evidence the declarations of a deceased person, made against his interest, upon the subject-matter in controversy.
APPEAL from the Superior Court of Law of GRANVILLE, at Fall Term, 1849, Settle, J., presiding.
This was an action of replevin, brought to recover a negro boy by the name of Peyton.
The plaintiff claimed under a bill of sale from her father, John T. Peace, dated 4 May, 1844.
The defendant claimed as purchaser under an execution against one N. B. Patton and the said John T. Peace, tested of the ___________ Term of Granville County Court, A. D. _______.
The plaintiff offered evidence to prove that the consideration mentioned in the bill of sale was a fair one, and that the same was paid, part in money and part by assuming debts of her father. Amongst these debts was one alleged to be due by John T. Peace to Josiah Peace, his brother.
The defendant offered evidence to prove that the bill of sale from John T. Peace to Lucy T. Peace was fraudulent, and, in order to impeach the existence of the debt alleged to be due from John T. Peace, and to show that the said debt was fraudulent, the defendant offered in evidence a deed of trust made by the said John T. Peace in November, 1843, to secure certain debts therein mentioned, in which the debt to Josiah Peace was not mentioned, and that at the time of the execution of (356) the said deed the said John T. Peace declared that the said deed contained all the debts he owed. For the purpose of showing that the said debt was not a feigned one, and to rebut the fraud alleged, the plaintiff offered to prove by a witness (John W. Jenkins) that some years before the date of the said deed of trust John T. Peace (who was dead) had said in a conversation with the witness, that he wished to borrow some money; that he knew his brother, the said Josiah, had it, but that he disliked to apply to him, because he already owed him. This testimony of the witness, John W. Jenkins, was objected to by the defendant, but was received by the court. A verdict was rendered for the plaintiff, and judgment entered thereon. A new trial was moved for and refused, and appeal prayed and granted.
J. H. Bryan and H. W. Miller for plaintiff.
Gilliam and Badger for defendant.
The question is not as to the weight, but as to the competency of the evidence, of which the defendant complains. On his part it was alleged that the transaction between the plaintiff and her father, John T. Peace, was fraudulent. The plaintiff's deed being attacked for fraud, it was incumbent on her part to show that the consideration was a bona fide one. A part of this consideration consisted of a debt, as she alleged, due from her father to Josiah Peace, his brother, and which she had paid. The bill of sale under which she claimed the negro is dated 4 May, 1844. Declarations of John T. Peace, made near six months before, were proved by the defendant to show that at that time he owed his brother Josiah nothing. To contradict the force of this testimony the plaintiff was permitted to show that, some time previous to the declarations proved by the defendant, John T. Peace had declared (357) that he was indebted to Josiah Peace. The testimony was, we think, competent. John T. Peace was dead, and his declarations were relevant to the very matter in dispute, to wit, his indebtedness to Josiah Peace, and upon a question of fraud and against his interest. Its aptness to prove that fact of indebtedness was to be considered of by the jury in deciding on its weight, from the time and circumstances under which it was made. Peck v. Gilmer, 20 N.C. 391; Higham v. Ridgeway, 19 East, 109. We think his Honor committed no error in admitting the testimony. It is true, it did not of itself prove any such debt existing at the time the plaintiff's bill of sale was made, but it was such a circumstance as the jury might take into consideration as evidence, either in chief or in reply. The declarations were made by a man upon the subject in controversy, against his interest, and when he could have no conceivable interest to declare that which was not true. Suppose he had at that time given his duebill for the amount so alleged to be due to Josiah Peace: that, certainly, would have been evidence.
PER CURIAM. Judgment affirmed.
Cited: McCanless v. Reynolds, 67 N.C. 269; Shaffer v. Gaynor, 117 N.C. 24; Smith v. Moore, 142 N.C. 290, 4.
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