Belk v. Belk

• Decision Date: 23 December 1917
• Docket Number: 417.
• Parties: BELK v. BELK ET AL.
• Court: North Carolina Supreme Court

94 S.E. 726

175 N.C. 69

BELK v. BELK ET AL.

No. 417.

Supreme Court of North Carolina

December 23, 1917

Appeal from Superior Court, Union County; Long, Judge.

Action by Napoleon B. Belk, by his testamentary guardian and next friend, P. R. Belk, against A. H. A. Belk and others. Judgment for defendants, and plaintiff appeals. Affirmed.

If a witness is impeached by proof of his having previously made statements inconsistent with his testimony, he may be supported by proving other statements made by him in accordance with it.

Plaintiff sued for the recovery of his interest in a tract of land containing 484 acres, alleged to have been conveyed by deed dated January 4, 1857, of Calvin Laney to plaintiff's mother, Parmelia J. Belk, and her children, namely, Napoleon B. Belk, Altha H. Belk, and Phredo R. Belk, as tenants in common. This deed was probated and registered on September 25, 1880. On December 15, 1865, Calvin Laney conveyed by deed to the defendant A. H. A. Belk 207 acres of land, which included within its boundaries 97 acres of the land before conveyed by him to Parmelia J. Belk and her children. This deed was registered in 1875.

The defendant denied, in his answer, that Calvin Laney had ever executed a deed for the 484 acres to Parmelia J. Belk and her children, and averred that the alleged deed under which plaintiff claimed an interest in the land was a forgery, or at least, was never executed by Calvin Laney, and upon this allegation and denial the first issue was based. One of the principal questions relates to the burden of proof. The plaintiff contended that the probate and registration of the deed of 1857 raised a presumption of its due execution, which cast the burden on the defendant to show that it was not so executed, or that Calvin Laney's signature to it is a forgery. The defendant contends that the burden of proof throughout the trial was upon the plaintiff, as the registration of the deed only made out a prima facie case for the plaintiff as to its due execution and genuineness, but did not shift the burden to the defendant. The court charged the jury, at the outset, that the burden of proof was upon the plaintiff, and he must satisfy them by the greater weight of the evidence that the deed was executed as alleged, but that when he introduced the deed of 1857 in evidence, and showed by the record that it was duly probated and registered, the law raised a presumption of its due execution on the day of its date, and of the intention of the grantor to transfer the title to the grantees; "and you are instructed that the burden of proof rests upon the defendant in that state of the case, to satisfy you by the greater weight of the evidence that the said deed was not executed and delivered by Calvin Laney, and unless the defendant has so satisfied you by the greater weight of the evidence, you should answer the first issue, 'Yes.' " The judge then recited the evidence bearing upon the question as to the execution of the deed, and then proceeded as follows:

"When the defendant alleges that the paper writing is a forged instrument, the burden is upon him to show it by the greater weight of the evidence. I have already told you that the burden is upon the plaintiff to make out his contention as to the paper, and that this paper writing was executed and delivered by Calvin Laney as and for his deed."

The plaintiff excepted as to so much of the charge as placed the burden upon him, insisting that, when it was shown that the deed had been duly probated and registered, the burden then fell upon the defendant to prove to the satisfaction of the jury by the greater weight of the evidence that it was not the deed of Calvin Laney either because it was never executed by him, or because it was a forgery. The following verdict was returned by the jury:

"(1) Did Calvin Laney execute and deliver the deed bearing date of January 4, 1857, to Parmelia J. Belk and others, as alleged in the complaint? Answer: No.

(2) Did the defendant A. H. A. Belk become a purchaser of the 207-acre tract for value and without notice of the deed dated January 4, 1857, as alleged in the answer? Answer: Yes.

(3) Is any part of the land claimed by the defendants A. H. A. Belk and wife embraced in said deed; and, if so, what part of said land? Answer: 97 acres, as per plat.

(4) Is the action of the plaintiff Napoleon B. Belk barred by the statute of limitations? Answer: No."

Judgment for defendants, and plaintiff appealed.

Stack & Parker, of Monroe, for appellant.

W. B. Love, of Monroe, Frank Armfield, of Concord, and Redwine & Sikes, of Monroe, for appellees.

WALKER, J. (after stating the facts as above).

We are of opinion that the burden of proof throughout the trial was upon the plaintiff, and that the judge not only committed no error as against the plaintiff, but placed too great a burden upon the defendant in regard to the execution of the deed, and of this the plaintiff cannot complain, as it was an error committed in his favor. It is true, as contended by the plaintiff's counsel in their able and forceful argument, that the introduction of a deed, which has been duly probated and registered, is sufficient proof of its execution and genuineness, at least, prima facie, but we do not agree that it raises such a presumption of law or of fact as to require the defendant to rebut it by a preponderance of the evidence.

The registration of a deed is founded upon and authorized only by a probate of the same taken according to the statute, and ex parte proceeding, in which the execution of the particular deed in question is adjudged upon the acknowledgment of the grantor or the simple examination of a witness, without the presence of interested parties. As it is not an adversary proceeding, the law does not attach to it the force and effect of a judgment rendered after all parties concerned have been heard, or could have been heard if they desired to be, but only allows it to have the force of presumptive evidence as to the fact of the due execution in any contest as to the latter. The force and effect of the registration of a deed has been said by this court in some cases to be prima facie evidence of its due execution, and in others to be presumptive evidence of the fact. We are of the opinion that, owing to the nature of a probate and registration, and having regard to the language of the statute with respect thereto, when a registered deed is introduced, it raises such a presumption of its due execution, including in this term both signing and delivery, that in the absence of any contest as to the execution of the deed, and where no evidence is introduced to assail it, the presumption thus raised as to its due execution will warrant the court in directing the jury to find in favor of the validity of the deed; but when its execution is denied, and evidence is introduced which tends to show that it was not executed, the burden of proof is on the party claiming under the deed, but he is entitled to the full benefit of the presumption as evidence in his favor, and whether the opposing evidence is sufficient to overcome this presumption and to call for more evidence from the plaintiff is a question for the jury, because they must pass upon the credibility of the evidence and its weight. The burden of proof, sometimes called the burden of the issue, is upon the plaintiff, who alleges the existence of the fact, but who, however, in such a case, has the advantage of a presumption in his favor. Justice Ruffin, in Love v. Harbin, 87 N.C. 249, 255, citing Carrier v. Hampton, 33 N.C. 307, said:

"It is not intended to say that the fact of registration is conclusive as to either the execution or probate of the deed, but only prima facie evidence, and as the factum of the instrument may be disputed after its registration, so may the fact that it was ever admitted to probate, or that it was proved by a competent witness, as was done in Carrier v. Hampton, supra."

It is held in Kelly v. Jackson, 6 Pet. 622, 8 L.Ed. 523, that prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact, and, if not rebutted, remains sufficient for the purpose. The presumption, as to the due execution of a deed which arises from its registration, founded upon a probate, is itself but evidence, which must be left to the jury, with proper instructions as to its effect in law as proof; but after all, it is for the jury to say what weight it will attach to it when there is other evidence tending to contradict it, and to show that the deed was not executed, and upon all of the evidence it is for them to say, with the burden resting upon the plaintiff and the benefit of the presumption allowed to him, whether the deed was executed. Our statute concerning the registration of deeds reads as follows:

"All deeds, contracts or leases, before registration, except those executed prior to January first, one thousand eight hundred and seventy, shall be acknowledged by the grantor, lessor or the person executing the same, or their signatures proven on oath by one or more witnesses in the manner prescribed by law, and all deeds executed and registered according to law shall be valid, and pass title and estate without livery of seisin, attornment or other ceremony whatever." Revisal, § 979.

It will be seen therefrom that by the statute all deeds executed and registered according to law shall be valid, etc. This can mean nothing more or less than that the fact of execution is not concluded by the registration, but is left open to be found by the jury upon proof, and so we have determined in several cases. If, though, there is no proof except the registration, the court may instruct that the deed is valid and passes the title, and...