Batten v. Aycock

• Citation: 29 S.E.2d 739,224 N.C. 225
• Decision Date: 12 April 1944
• Docket Number: 236.
• Parties: BATTEN v. AYCOCK et al.
• Court: North Carolina Supreme Court

29 S.E.2d 739

224 N.C. 225

BATTEN v. AYCOCK et al.

No. 236.

Supreme Court of North Carolina

April 12, 1944

Civil action to restrain foreclosure of trust deed.

In 1927 plaintiff and his wife executed a mortgage to Dr. George D. Vick to secure the payment of $1,000. The plaintiff paid the interest to 1930. The building on the land conveyed having been destroyed by fire, Dr. Vick requested additional security. Thereupon, plaintiff executed the trust deed described in the complaint, conveying as security the original land and a twelve-acre tract in addition.

Plaintiff contends that in 1932 Dr. Vick demanded payment of the full amount and that he and his mother on or about March 29, 1932 went to Dr. Vick's office and paid him $500 by check and $500 in cash in full settlement. He holds a paper-writing which purports to be a receipt signed by Dr. Vick for $1,000 'On land. Paid in full.' No further demands were made on him for payment.

Dr Vick died November 2, 1940. Thereafter, defendant Aycock trustee, advertised the land for sale under the trust deed. Plaintiff went to see defendant executors and exhibited check and receipt. The executors gave credit for the check but declined to recognize the validity of the receipt. Thereupon plaintiff instituted this action to restrain the sale.

On the trial below plaintiff offered evidence that Dr. Vick gave a receipt showing that the debt was paid in full, and he identified the paper-writing exhibited to the executors as a receipt. But evidence offered by him as to the genuineness of the signature was excluded under G.S. § 8-51, C.S. § 1795.

Defendant Annie Hoge Vick, widow of the deceased and co-executor, testified for defendants and was examined concerning the signature on the receipt. She stated: 'I would not recognize that as the doctor's writing. I kept his books for thirty years, and I do not recognize it as his handwriting. I have to be honest about that. I can't say it is or it isn't. It is very foreign to his writing, as far as I am concerned.' Defendant Aycock and a son of deceased also testified in respect thereto. Neither testified positively that it was or was not Dr. Vick's handwriting.

In rebuttal plaintiff offered to testify that Dr. Vick wrote the receipt and that the signature was in his handwriting. This testimony was excluded and plaintiff excepted.

There was a verdict and judgment for defendants. Plaintiff excepted and appealed.

Levinson & Pool of Smithville, for appellant.

Lyon & Lyon, of Smithville, for appellees.

BARNHILL Justice.

Plaintiff on his examination in chief was competent to testify to the handwriting of the deceased from his general knowledge, but not to testify that he saw the deceased person actually sign the particular receipt. Lister v. Lister, 222 N.C. 555, 24 S.E.2d 342, and cases cited cited; Herring v. Ipock, 187 N.C. 459, 121 S.E. 758.

When, however, the defendant, representative of the deceased, was examined in behalf of the defendants concerning the same transaction, she thus opened the door and made competent the testimony of her adversary concerning the same transaction about which she testified. G.S. § 8-51, C.S. § 1795; Pope v. Pope, 176 N.C. 283, 96 S.E. 1034; Sumner v. Candler, 92 N.C. 634; Herring v. Ipock, supra; Lewis v. Mitchell, 200 N.C. 652, 158 S.E. 183; Hall v. Holloman, 136 N.C. 34, 48 S.E. 515.

The evidence offered by the defendants, although equivocal, was for the purpose of attacking the genuineness of the receipt and to prove that...