Goodman v. Sapp

• Decision Date: 15 April 1889
• Citation: 9 S.E. 483,102 N.C. 477
• Parties: GOODMAN et al. v. SAPP et al.
• Court: North Carolina Supreme Court

9 S.E. 483

102 N.C. 477

GOODMAN et al. v. SAPP et al.

Supreme Court of North Carolina

April 15, 1889

Appeal from superior court, Cabarrus county; BROWN, Judge.

Special proceeding by J. P. Goodman and others against T. H. Sapp and others. Defendants appeal.

It is within the discretion of the court to permit counsel in the argument to state that the adverse party, who was not sworn was in court, and had the right to contradict certain testimony, and did not avail himself of the opportunity.

W. J Montgomery, for appellants.

Lee S Overman and Paul B. Means, for appellees.

DAVIS J.

This was a special proceeding commenced before the clerk of the superior court of Cabarrus county for sale of land for partition, and heard before BROWN, J., at January term, 1889, of the superior court in term, upon issues presented by the complaint and answer. The complaint alleges that Katie Safrit died in 1882, seised and possessed of the land in controversy, and that the plaintiffs and defendants (other than Peter Cruse) are her heirs at law, upon whom the said real estate descended, and that Peter Cruse claims title in fee under a pretended deed from Thomas H. Sapp to a portion of the land described. The defendants Thomas H. Sapp and Sarah, his wife, answer, denying all the allegations of the complaint, and alleging that the defendant Sarah Sapp is the sole owner in fee of said land, except a portion named, which they say is owned by their codefendant, Cruse. The defendant Cruse answers, and claims to be the sole owner in fee of the portion of said land described in his answer. Upon the trial before his honor, the defendants moved to dismiss the action, "upon the ground that it was apparent upon the pleadings that the clerk did not have jurisdiction." "His honor intimated that the clerk did not have jurisdiction of the matter in controversy between the plaintiffs and the defendant Cruse, whereupon the action was dismissed as to the defendant Cruse, and the land claimed by him," and his honor held that the court had jurisdiction as to the other defendants. The defendants excepted. Whether his honor erred in ruling that the clerk had no jurisdiction as to the defendant Cruse we are not called upon to determine. The plaintiffs did not appeal.

We think it clear that the court had jurisdiction as to the other defendants. McBryde v. Patterson, 73 N.C. 478. Whatever may be the construction to be placed upon chapter 276 of the Acts of 1887, the action ought not to have been dismissed, and there was no error in his honor's ruling of which the defendants can complain. This disposes of the first exception.

"It was admitted upon the trial that Katie Safrit was at one time the owner of the land in dispute, and that she died the owner thereof, unless she had conveyed the land to one George Safrit, under whom the defendant Sarah Sapp claimed. It was further admitted that the heirs at law of Katie Safrit were correctly stated in the complaint." The following issues were submitted: "(1) Is the defendant Sarah Sapp sole seised of the whole of the land described? (2) Is the defendant Sarah Sapp the owner of George Safrit's share or interest?" The defendants offered in evidence a deed from Katie Safrit to George Safrit dated August 25, 1873, and a deed from George Safrit to Sarah Sapp dated September 2, 1873, conveying the land in controversy. The consideration in both deeds was stated to be $500. Many witnesses were examined on both sides, and the evidence is sent up with the record. That on the part of the plaintiffs tended to show that Katie Safrit was an old woman, of very weak mind; that she was incapable of understanding, attending to, or transacting any business; that she could not understand a deed; and one of the witnesses speaks of her as "idiotic." The evidence also tended to show that the land was worth $3,000. George W. Safrit testified, among other things, as follows: "Sapp got after me to get mother [Katie Safrit] to come and live with him. Said he would give me a horse to get mother away from Goodman's. I got the horse, and mother came to Sapp's to live. She lived there a couple of weeks or better before the deed was made. *** I never made any deed to Sarah Sapp. Thomas Sapp and witness went to Sol. Fisher's to get the deed written. Sapp offered $500 if I would make him a deed. We got on a spree, and went up to Roseman's. Here I suppose he got me to sign something else. I don't know what I did there, nor when I signed it. Sapp gave me liquor, and insisted on my drinking. If I signed a deed, I don't remember it." He also said: "Sapp never paid me anything." George Shank testified that he was at Roseman's; that Sapp and Safrit asked Roseman to write for them; that he wrote some, and asked to whom the deed was to be made. Sapp said: "To Sarah Sapp, of course." "Did not see the deed signed. Safrit acted curious; had been drinking," etc. T. J. Safrit testified that he was a son of Katie Safrit. Saw her at Sapp's and at Goodman's. "Sapp got at me to get the old man and old lady to assign over the land for life to him and me. He wrote the instrument, [handed witness,] and got me to get mother to sign it, and instead of putting my name in he put his own." This witness was allowed to testify, after objection: "She [Katie Safrit] was no more competent to make a deed two weeks after date of the deed than she was before." This constitued the defendant's second exception. The witness had testified without objection that her mind was very weak, and that she did not know what she "was about, in making the deed." We can see no force in the objection. The testimony of the witnesses for the defendant tended to show that Katie Safrit had capacity to make a deed. S. Fisher testified that he knew Katie Safrit. "Think she had sense enough to make a deed, if explained to her. Never saw her do anything foolish. I wrote deed from Mrs. Safrit to George. Thomas Sapp and George got me to do it," etc.

"The plaintiffs' counsel, in his argument to the jury, stated that Sapp, the defendant, had procured the deed from George Safrit without paying anything for it; that from the recital in the deed he had obtained a $3,000 tract of land for $500; that from the evidence of Safrit it was proven that Sapp got him drunk, and procured the deed from him when he did not know what he was about. Sapp was in court, and had the right to contradict Safrit if that was not the truth, and he did not avail himself of the opportunity and right to contradict him. In the midst of this argument made by the plaintiff's counsel defendants objected that counsel had no right to comment on the fact that the defendant was in court, and failed to avail himself of his right to contradict the statements set forth. Court overruled the objection, and permitted the counsel for plaintiff to argue that Sapp was in court, and had the right to contradict George Safrit, if Safrit had not told the truth, and did not avail...