Gibson v. Partee

• Decision Date: 31 December 1837
• Court: North Carolina Supreme Court
• Parties: Den ex dem. JOHN GIBSON v. NOAH PARTEE.

19 N.C. 530

Den ex dem. JOHN GIBSON

v.NOAH PARTEE.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1837.

1. Where an instrument purporting to convey land, was signed, sealed and delivered, by the grantor to the grantee, it is a deed, and not an escrow; although the parties afterwards placed it with a third person for safe keeping until they both should call for it.

2. Fraud in the execution of a deed will, at law, avoid it.

3. The only legal proof of a judgment, is by the production of the formal entry of it; but minutes made during the progress of a cause, if received without objection to their form, are sufficient proof of the judgment, if from them a formal entry can be made up.

4. Matters which might have been introduced on the trial, but brought forward for the first time upon a motion for a new trial should not be acted upon by the court.

Ejectment, tried at Rowan, on the last Circuit, before his Honor Toomer, J.

The plaintiff in support of his claim, first offered in evidence, an instrument duly proved and registered, which he alleged to be a deed for the land in dispute, from Andrew Bahel, to his son Jacob Bahel. The defendant contended that the instrument had never been delivered as a deed, but only as an escrow; and to prove that fact he introduced witnesses, who testified that Jacob Bahel was to give a bond to his father Andrew to maintain him during his life; and Andrew, the father, was to convey the land to Jacob: that the old man seemed uneasy before the instruments were executed, lest his son should fail to comply with the stipulations of the bond, but those present informed him that he would have a claim to the land, should Jacob fail to support him; and also, that he might sue on the bond and get his land back again; that the bond and deed both were drawn by Mr. Barnhart, and the bond was then signed and sealed by Jacob and delivered to his father, and the deed was signed and sealed by Andrew and delivered to Jacob; that the parties then respectively handed the bond and deed to the witness, to be kept until they should come together and call for them. Andrew Bahel was then about seventy years old, and was ignorant as to matters of law. The plaintiff then introduced Mr. Barn-hart, who stated that, at the request of Andrew and Jacob Bahel he drew both the bond and deed, and attestedto the execution and delivery of them: that the bond was signed and sealed by Jacob to Andrew, and the deed was signed and sealed by Andrew, and delivered by him to Jacob: that John Gibson, the lessor of the plaintiff was present, and after the execution of the instruments, the parties wished to place them in his hands, but he declined receiving them; whereupon both parties agreed to place them in the hands of one Cowell for safe keeping, with instructions to retain them until both Andrew and Jacob should call for them, or until the death of Andrew. It was also proved, that Andrew Bahel had died, and Cowell had been compelled by legal process to produce the deed for probate and registration. The deed was executed and bore date 5 Sep., 1830.

The lessor of the plaintiff, in further support of his title,

then offered in evidence the record of a judgment obtained by him against Jacob Bahel, in an action instituted by original attachment, in the County Court of Rowan. The attachment bore date 1 Jan., 1834, and was issued against the estate of Jacob Bahel, for a debt of one hundred and fifty dollars, due by note, with the interest accrued thereon, returnable to February term, 1834, of Rowan County Court, and was returned levied upon the premises in dispute.

At the return term, an order of publication was made; and at the succeeding term, in May, the following entry appeared upon the trial docket: "Judgment of the Court, that publication has been made:" and also another in the words following to-wit: "Judgment by default, final, according to specialty filed." A note was then produced from the officer of the Court, filed among the papers in that cause, purporting to be a promissory note under seal, given by Jacob Bahel to John Gibson for one hundred and fifty dollars, dated 20 October, 1818, and payable three months after date. On the execution docket the following memorandum was entered: "$288 with interest on $150, from May, 1834, until paid, for debt, also $9 53-100 for costs." A venditioni exponas for the debt and costs, was then produced, directed to the sheriff of the county, and commanding him to sell the land levied on under the attachment; and a return endorsed on the process, showing a sale, and that...