Bryan v. Malloy

• Decision Date: 28 February 1884
• Citation: 90 N.C. 508
• Court: North Carolina Supreme Court
• Parties: VAN BUREN BRYAN and others v. ALBERT MALLOY and others.

90 N.C. 508

VAN BUREN BRYAN and others

v.ALBERT MALLOY and others.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried at Fall Term, 1883, of RICHMOND Superior Court, before McKoy, J.

This action was brought to set aside a deed for land, executed by Margaret Sinclair, Isabella Sinclair and Daniel Sinclair to the defendant D. M. Kennedy, on the ground of fraud and imposition; and also to set aside a deed from D. M. Kennedy to the defendant William Gilchrist, for the same land, on the ground that Gilchrist purchased with notice of the fraud; and also for the possession of the land.

The deed to Kennedy was made January 22, 1866, and that to Gilchrist, May 5, 1879. Defendant Gilchrist also claims the land under a deed from Margaret Sinclair, Isabella Sinclair and Daniel Sinclair, being their deed to John Johnson, dated October 8, 1870, and a further deed from Henry Fairly, administrator of John Johnson, to said Gilchrist, dated October 24, 1877, made under a decree to sell the land for the payment of the debts of the intestate.

The plaintiffs claim as heirs of Evan Bryan, to whom the three Sinclairs conveyed the same land by deed bearing date 26th of June, 1866.

On the trial the plaintiffs offered in evidence all the foregoing deeds, and also the deposition of Margaret Sinclair taken in a former action, in which D. M. Kennedy was plaintiff and Margaret Sinclair, John Johnson and Archibald McLaurin were defendants. Both parties were present when the deposition was taken, and it was filed in the cause, but never read or offered in evidence.

They also offered in evidence the record of another action, in which the new defendant William Gilchrist and Mary L. Johnson were plaintiffs, and D. M. Kennedy, Berry Bryan and Kenneth McKenzie were defendants. In this action no pleadings were ever filed, and the plaintiffs introduced Gilchrist, one of the plaintiffs therein, as a witness, and proposed to show by his testimony that the action was brought to set aside the deed from the three Sinclairs to D. M. Kennedy, upon the same ground of fraud and imposition which are alleged in the present action. His Honor ruled out both the deposition and the testimony of Gilchrist. Upon this ruling the plaintiffs submitted to a judgment of nonsuit and appealed.Messrs. Burwell, Walker & Tillett, Frank McNeill and Strong & Smedes, for plaintiffs .

Messrs. Geo. Davis and J. D. Shaw, for defendants .

ASHE, J.

It is held to be a general rule of law that where a witness has given his testimony under oath in a judicial proceeding, in which the adverse litigant had the power to cross-examine, the testimony so given will, if the witness be dead, be admitted in any subsequent suit between the same parties or those claiming under them, provided it relates to the same subject, or involves the same material questions. Taylor on Evi., §434. In Harper v. Burrow, 6 Ired., 30, it was held by the court that the testimony of a witness examined in a former suit is not admissible in a subsequent suit, when the plaintiff in the latter was not a party to the former suit, because it is res inter alios acta. Chief-Justice NASH, who delivered the opinion in the case, said: “The testimony of a witness given in a case, after his death, can be proved in chief, only between the same parties when the same matter is in litigation; for the reason, that it would otherwise be made to affect others, who had no opportunity of cross-examining the witness, which is one of the ordinary tests provided by law for the ascertainment of truth in the courts of justice.” To the same effect are Bondman v. Reed's Lessees, 6 Pet., 328; McMorine v. Story, 4 Dev. & Bat., 189; 1 Phil. on Evi., 364.

In our case the parties are not the same, but very different.

In the first action in which the deposition of Margaret Sinclair was taken, D. M. Kennedy was plaintiff and John Johnson, Margaret Sinclair and Archibald McLaurin were defendants. In the second action in which her deposition was taken, William Gilchrist and Mary L. Johnson were plaintiffs and D. M. Kennedy, Berry Bryan and Kenneth McKenzie were defendants.

In the present action Van Buren Bryan and Jefferson Bryan are plaintiffs, and D. M. Kennedy, William Gilchrist and Albert Malloy are defendants. D. M. Kennedy is the only party to the present action who was a party to the first action, and Mary L. Johnson as plaintiff and Kenneth McKenzie as defendant in the second action, are not parties to the present action.

Taking the opportunity of cross-examining Margaret Sinclair, as the test of the admissibility of her testimony, as laid down in the case of Harper v. Burrow, supra, it will be seen that Gilchrist, a party to the action, was not a party to the first action and had no opportunity to examine the witnesses in that case, and Albert Malloy, who is another party to the present action, was not a party to either of the former actions and had no authority to examine the witnesses in either case. In the first action the defence set up was that the deed from the Sinclairs to Kennedy was fraudulent and void. And the second action, as alleged, was brought to set aside that deed for the same cause. But the present action was brought not only to set aside that deed, but also to set aside the deed made by...