Gaskill v. King

• Decision Date: 30 June 1851
• Citation: 34 N.C. 211,12 Ired. 211
• Court: North Carolina Supreme Court
• Parties: ELIJAH GASKILL v. WILLIAM C. KING.

12 Ired. 211

34 N.C. 211

ELIJAH GASKILL

v.WILLIAM C. KING.

Supreme Court of North Carolina.

June Term, 1851.

When a deed by a husband for a slave was signed and sealed, but not delivered, in the presence of a subscribing witness, but was afterwards delivered by the husband to his wife for the benefit of the grantee, Held, first, that the delivery was good and enured to the benefit of the grantee-- Held, secondly, PEARSON, J., dissentiente, that when the deed was signed, sealed and attested by a subscribing witness, a delivery, not in the presence of the attesting witness, might be proved by a third person, so as to satisfy the requisitions of our Statute relating to the transfer of slaves.

After the death of a husband, the wife is a competent witness to prove the execution of a deed made by him in favor of a third person.

The cases of Harrison v. Burgess, 1 Hawks 384, Tate v. Tate, 1 Dev. and Bat Eq. 22, Hester v Hester, 4 Dev. 228, Vines v Brownrigg, 4 Dev. 265, and Andrews v Shaw, 4 Dev. 70, cited and approved.

Appeal from the Superior Court of Law of Carteret County, at the Spring Term 1851, his Honor Judge CALDWELL presiding.

The action is detinue for several slaves, which the plaintiff claims as the administrator of James Gaskill, deceased, and the defendant claims under a deed of gift from James Gaskill to Anson Gaskill, son of the former, and an infant ward of the defendant. It was tried on non detinet, and the defendant produced a deed from the father to the son, dated in February 1833. To prove the execution thereof, one Chadwick deposed, that, at the date of the deed, James Gaskill came to a house where he was, and requested him to write a deed of gift for the slaves from him to his son Anson, who was then an infant of tender years and not present; saying that he did it at the request his wife, who wished those negroes given to Anson, as they were part of those, which came by her, and Anson was the only child by that marriage: that he wrote the deed, and it was signed and sealed by Gaskill, the father, and at his request was attested by this witness and another person, as subscribing witnesses, and then Gaskill took it and carried it away: that, about two years afterwards, Gaskill saw the witness and said to him, “I have changed my mind about that deed you wrote for me and do not wish it proved,” and the witness replied, that he had not seen the deed, since the day he wrote it, and thereupon Gaskill remarked, “I thought my wife had given it to you to carry to Court and prove.” The defendant further offered Mrs. Gaskill, the widow of the intestate, to prove that her husband handed the deed in question to her, and told her to take care of it for Anson, and have it proved and recorded for him, whenever she pleased: that she then took it, and put it in her trunk, separate from her busband's papers, and he never saw it afterwards to her knowledge; and that he died in 1836, and shortly afterwards she had the deed proved and registered.

The counsel for the plaintiff objected to this evidence of Mrs. Gaskill. But the Court received it, and then instructted the jury, that, if they believed the witnesses, the evidence was sufficient to establish the execution and delivery of the deed. After a verdict and judgment for the defendant, the plaintiff appealed.

W. H. Haywood and J. W. Bryan, for the plaintiff .

Donnell and J. H. Bryan, for the defendant .

RUFFIN, C. J.

Upon the question, whether there was legal evidence of the delivery of the deed, the cases of Vines v. Brownrigg, 4 Dev. 265, and Andrew v. Shaw, 4 Dev. 70, are in point. They lay it down, that the act of 1806 does not create any new rule, as to the proof of the execution and delivery of a deed of gift of slaves; and that, if the subscribing witness, from want of integrity, will not, or, from want of memory or knowledge, cannot, prove the signing, sealing and delivery of the deed, the deficiency in his evidence may be supplied by that of the other witnesses. Those adjudications and the reasons for them are attacked on the ground, that the statute requires a deed of gift to be attested by at least one credible witness, and that he shall prove the due and fair execution of it on the trial. It is argued, that delivery is an essential part of the execution of a deed, and, indeed, that it is no deed until delivery; and thence, that the subscribing witness must attest the delivery as well as the signing and sealing. But that seems to be rather a play on words, and an adherence to the letter, without regard to the sense and purpose, of the Statute, which would render it absurd and inoperative. It is true, that, technically, delivery forms part of the execution of a deed; that is, it is not a deed without delivery. But, in common speech, execution means generally signing and sealing a paper, as contradistinguished from its delivery. It seems plain, that it is to be understood in that sense in statutes, which require subscribing witnesses; for no one ever thought of delivering a deed before its attestation.--This verbal criticism, overlooking the context and nature of the thing, would destroy the attestation of deeds delivered as escrows, unless the same person happened to be the witness to the signing and sealing and to both the first delivery and the final one; for, until the latter, the instrument is not a deed, and, so, the attestation could not be that of a witness to the deed. Thus, also, the statute of devises uses the language, that no last will shall be good, unless such last will be written in the testator's life and signed by him, and be subscribed in his presence by two witnesses at least; and, then, that the same shall be proved by at least one of the subscribing witnesses, but, if contested, it shall be proved by all. What is to be subscribed by the witnesses? The will, answers the statute. But, by the same statute, literatim, it is not a will, until it be subscribed by the two witnesses; and then, according to the argument, the attestation must be null, since it was not a will--that is, a perfect will--upon the subscription of the first witness, nor indeed until the death of the testator. That cannot be the meaning of the statute. On the contrary, it is manifest, that “such last will shall be subscribed by two witnesses” means, that the paper writing, purporting to be the will, shall be thus subscribed. Accordingly, it has been supposed to be perfectly settled, that the two witnesses need not even subscribe together, but may do so at different times and not in the presence of each other. The ground, on which Vines v. Browning and Andrews v. Shaw are impeached, thus seems to the majority of the Court altogether unsatisfactory in itself, and to leave those cases with all the authority, to which, as judicial precedents, they are entitled. The point decided distinctly arose in each case; and, upon mature consideration, the judges held, that it was not the purpose of the act of 1806, more than that of 1792, to require more to be proved by the witnesses to the writings mentioned in them, than by the witnesses to other instruments, but that the intention was merely to restore the rule of the common law, that upon trials such instruments were to be read upon proof of them then made by the witness, and not upon the proof, on which they were registered. That was thought to be the whole scope of the act of 1806, and, the more especially, as it was but applying to it the construction known to have been invariably put on that of 1792 couched in like language. Those decisions were made in December 1833, and have been fully acquiesced in, we believe, ever since, by the profession, and not questioned until the present time. They have, besides, received the sanction of the legislature. In revising the body of the statute laws in 1836, not only is the first section of the act of 1806 re-enacted without alteration, but, with those decisions before the legislature, the third section of the act of 1792, and the second of that of 1806 are incorporated into one section, saying that on trials the due and fair execution of written conveyances of slaves, by way of gift or sale, shall be proved by the subscribing witness; thus expressly putting the two on the same footing, as the Court had by inference before held it had been intended to do. Rev. St. ch. 37, sec. 21. It would be a public mischief, in this state of the matter, to over-rule those cases; for, if the point now agitated is not to be considered as thus put to rest, it would seem that nothing is to be deemed settled in our law.

It was, however, further contended in the argument, that although that may be generally true, here the deficiency is not supplied because the wife was not competent to accept the delivery, nor to prove it. As to the competency of Mrs. Gaskill to give evidence: It is true, she could not have done so in her husband's life time, in a controversy to which he was a party, both in respect of his interest and person. But when he died, her exclusion, as far as it arose from the interest of the husband or the policy of the law, ceased; and she became competent in any suit by or against the husband's administrator, to give evidence against the administrator, though not for him. The first she can do, because she swears against her interest, which is always allowable; the latter she cannot, beeause the effect of her evidence would be to increase the fund, out of which she is to have a distributive share, or repel a charge on it. But the question of her capacity to give evidence in this case is much like that started in Harrison v Burgess, 1 Hawks, 384: whether, upon a caveat of a husband's will, the widow could prove, that he deposited it with her for safe-keeping, so as to bring it within the act of 1784: on which the opinion of the Court was, undoubtingly, in the affirmative. In truth, this communication must, from its nature, have been made to the wife for the express...