Devereux v. McMahon

• Decision Date: 24 February 1891
• Citation: 12 S.E. 902,108 N.C. 134
• Parties: DEVEREUX v. McMAHON et al.
• Court: North Carolina Supreme Court

12 S.E. 902

108 N.C. 134

DEVEREUX v. McMAHON et al.

Supreme Court of North Carolina

February 24, 1891

This was a civil action, brought for the recovery of possession of land, and tried at September term, 1890, of the superior court of Halifax county before ARMFIELD, J.

The plaintiff was introduced as a witness, and testified that the land was worth $40 or $50 a year. On cross-examination by the defendants' counsel he testified that Thomas Alexander was carried by him from his home in Halifax county to the plaintiff's home in Nash county, in order that he might take better care of him. "Tom wanted to go. He died about a week afterwards. He signed, the deed about 12 o'clock in the day, and died about the same hour that night. They tried to read the deed to him, but he said it made no difference. He asked who wrote it, and was told it was Mr. Thorp. He asked if he was a lawyer, and was told yes. They tried to read it to him, but could not make it out. He asked if it stipulated that he (Basil) should take care of him and Frankie during their lives. Was told 'Yes;' and said that he was satisfied. I told him what was in the deed. Solomon Davis was the one who tried to read the deed. John Cobb was not then present. Davis witnessed the deed. Cobb came later in the day, and Tom acknowledged the deed again before him, and he wrote these words on it: 'John Cobb witness toward of what was used, Thomas Alexander did agree to the Deed.'." The plaintiff then rested his case. The defendants offered the paper purporting to be the original deed from Alexander to Devereux. In the attestation clause the words "Solomon Davis" are not written out, but the letters "D. S. C." are followed by certain flourishes. The defendants then introduced the will of Thomas Alexander, in which he devised the locus in quo to the defendants. The defendant M. McMahon was then introduced who testified that he had known Thomas Alexander 25 or 30 years, and had had considerable dealings with him, and he could not read or write. The defendants then introduced W. T Purnell, who testified that he knew Tom Alexander well. Saw him at Halifax depot on the day that he went to Nash. Tried to talk to him, but he was so sick that he could not talk,--was paralyzed,--and witness thought that he was dead. Was just as bad off as a man could be. His feet had been badly burned. He was at the depot in a bed, and feathers were all over him. W. D. Willcox was introduced by the defendants and testified: "I saw Tom the day he was carried to Nash. He was in a bed. Looked very bad." Defendants then introduced Alfred Walters, who testified that the day before he left home he saw Tom Alexander, and helped to dress him on the morning he left. "He did not speak from his home to Halifax. He said that he would be back to-morrow. He was as had off as he could be when I left him on the train. Tom is an uncle of the plaintiff, and raised him. Tom had no children. I married Tom's niece." Defendants rest.

The testimony of Solomon Davis, who was next introduced for plaintiff, is embodied in the opinion. Plaintiff introduced Simon Beckton, who testified: "I was there when Tom signed the deed. I got there about 11 o'clock. Tom talked with good sense. I saw Tom take the pen and have the paper. His mind seemed good then. He was talking about being burned how he came to be there; said Basil would do more for him than any one else, etc. I saw Basil give him the deed, and having it fixed up by Mr. Thorp. He said it was to be signed to-morrow. Tom said: 'Better fix it now; we can't tell what a day may bring forth.' Tom asked him what was in the deed, and Basil told him. I [witness] can't read or write. Tom was in the bed when he signed the deed. Davis had hold of the end of the pen when Tom signed." Plaintiff then introduced Nat. Alexander, who testified: "I am an illegitimate son of Tom Alexander. Before he went to Nash county he proposed to me to take him to my house, and take care of him and his sister, Frankie, during their lives, and he would give me a deed to the land. I told him I was not able to do it, and he said he was going to write for Basil to come. He wrote to Basil, and after that Basil came. He did not take him home that time, but did shortly after." Defendants objected to this. The objection overruled, and defendants excepted. The defendants contended, among other things, throughout the trial, that the deed was never signed; and, secondly, that plaintiff fraudulently induced Alexander to sign it. The plaintiff then introduced John Williams, who testified he had heard Tom say McMahon had failed to take care of him. Said he was going to write Basil to come and take him in hand. Said he hadn't seen Basil in twelve years. This was in 1886. Basil came in 1887. The plaintiff was recalled, and testified that three or four years before Tom died he came up and attended to his matters for him; that he took Tom off just before Christmas, and he lived one week, and until Friday night of the next week. Mr. Thorp testified that he wrote the paper on the 13th and dated it on the 14th; that he gave the deed to Basil on the 13th. Defendants then introduced McMahon, who said that Basil's statement that he was inattentive to Tom's wants was false; that he did not know he was at the depot the day he went to Nash; and that he had several times sent him clothing and other things. The defendant's counsel claimed in his argument (1) that there was no sufficient signing of said deed or paper; (2) that it was not lawfully and properly registered; (3) that there was no evidence of its delivery. His honor charged the jury that if they found from the evidence that Thomas Alexander, after being made acquainted with the contents of the paper or deed, with intent to execute it, made the cross-mark opposite the word "[Seal]" freely and voluntarily, and then had sufficient mental capacity to understand the nature of the transaction and the situation of the property, and his circumstances, it was in law a sufficient signing. Defendants excepted. He further charged that if the jury believed from the evidence that Solomon Davis was in the habit of signing his name by the letters "D. S. C.," and made his signature in this way to said deed, at the request of Thomas Alexander, it was a sufficient attestation. Defendants excepted. His honor further charged that if the jury believe from the evidence that Alexander signed the deed for the purposes expressed, and Davis, after signing as a witness, handed it to Devereux, in his presence, and with his assent, or if Alexander handed it to Devereux, there was some evidence of delivery to be considered by them. Defendants excepted. Verdict for the plaintiff. Defendants move for a new trial for alleged errors above set forth. Motion refused. Defendants except. The material portions of the original deed and of the record in the register's office are incorporated in the opinion.

Thos. N. Hill and W. H. Day, for appellants.

R. O. B rton, for appellee.

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

It is provided by statute (Code, § 1251) that "the registry or a duly-certified copy of the record of any deed, etc., may be given in evidence in any court, and shall be held to be full and sufficient evidence of such deed, etc., although the party offering the same shall be entitled to the possession of the original, and shall not account for the non-production thereof unless, upon a rule or order of the court suggesting some material variance from the original in such registry, or other sufficient ground, such party shall have been previously required to produce the original, in which case the same shall be produced, or its absence duly accounted for, according to the course and practice of the court." After the plaintiff had read the deed recorded in the register's book, which was made competent evidence by the statute, he furnished at the request of the defendant, voluntarily, and not in obedience to an order of the court, the original. The latter could not then avail himself of the objection that there was a variance between the original and what purported to be a copy on the book of the register by objecting to the admission in evidence of the copy. If there had been any ground of complaint, the point intended to be raised was fairly presented by the exception to the charge of the court at a later stage of the trial; the defendant having meantime offered the original deed in evidence. The last clause of the original deed, and the attestation clause with signatures, were as follows:

In witness whereof, the said Thomas Alexander hath hereun to signed his name and affixed his seal the day and date above written. [Seal.]

"Signed, sealed, and delivered in presence of John Cobb, witness towards of what was sed, Thomas Alexander did agree to the deed. D. S. C."

The same portion of the deed was recorded in the register's office as follows:

"In witness whereof, the said Thomas Alexander hath hereun to signed his name and fixed his seal the day and date above written.

"Witness: [Seal.]

"Signed, sealed, and delivered in the presence of John Cobb, witness toward of what was sed, Thomas Alexander did agree to the deed. SOLOMAN DAVIS."

The defendant contended that the deed was not signed in accordance with the requirements of our statute of frauds, (Code, § 1554,) and that the judge below should have instructed the jury that the plaintiff had failed to adduce any evidence tending to show title in himself, and could not, therefore, recover.

Under the Saxon rule in England, it was only required that deeds should be subscribed with the sign of the cross. It was not necessary that a seal should be attached. After the Norman conquest, sealing became a requisite, but signing of all kinds...