Hopper Et Ux v. Justice

• Decision Date: 22 December 1892
• Citation: 16 S.E. 626,111 N.C. 418
• Court: North Carolina Supreme Court
• Parties: HOPPER et ux. v. JUSTICE.

16 S.E. 626

111 N.C. 418

HOPPER et ux.

v.JUSTICE.

Supreme Court of North Carolina.

Dec. 22, 1892.

Record op Lost Deed — Impeachment—Correction.

1. In an action to try title to land, plaintiffs offered in evidence a copy of their deed from the registration book, in which a certain call was written 70 poles; and, to prove that there was a mistake in the registration book, they offered to show by a witness that he had seen the original deed, in which the call was written 170 poles. They stated that they expected to prove that the original deed was lost. Held inadmissible, and that plaintiffs should correct the error under Code, § 1266, providing for a petition for such purpose before tie clerk, including notice to all persons interested in the land.

2. Code, §§ 55, 56, providing that copies of destroyed records may be received in evidence when the original would be, and that original papers once recorded, and the record destroyed, may on motion be again recorded, on such proof as the court shall require, is not applicable, since the record is not destroyed.

3. The court properly informed plaintiffs that they might extend the line from 70 to 170 poles, and change the courses called for by establishing any corners or lines that would satisfy the jury that the proper location would be found by this extension of the line and change of course.

4. This would have been permissible even if there had been a mistake in the original deed, since, by a single exception to the rule, parol evidence corroborated by natural evidence of trees marked at the time is allowed to correct a mistake in the courses of a grant.

Appeal from superior court, Cleveland county; John Gray Bynum, Judge.

Action by L. M. Hopper and wife against David Justice to try title to land. There was a judgment of nonsuit, and plaintiffs appeal. Affirmed.

E. C. Smith, for appellants.

M. H. Justice, for appellee.

MacRae, J. The proposition of plaintiffs was to prove that there is a mistake in the copy from the registration book, which they offered in evidence as a link in their chain of title, by which, instead of 170 poles, as it was in the original, it is written 70 poles in the registration; and to prove this error they offered to show by a witness that he saw the original deed, and that it was written 170 poles. And they stated that they then expected to prove that the original deed was lost.

Section 1266 of the Code provides, for the correction of errors in the registration of deeds, a procedure by petition before the clerk, the grantor, and all persons claiming title to, or having lands adjoining, those mentioned in the petition to have notice of said petition. It is contended that this statutory proceeding is not exclusive, and that the plaintiffs are entitled to proceed to have the mistake corrected by the means afforded them before the passage of the act in 1790, and therefore that upon the trial of this action they may show the mistake in the registration of their deed. But the plaintiffs acted under a misapprehension of their rights an the premises, independent of the procedure provided them in section 1266. It is held in Mobley v. Watts, 98 N. C. 284, 3 S. E. Rep. 677, following a line of precedents, that parol evidence is admissible to prove the contents of lost or destroyed records, and that the statutory method of restoring such records (Code, § 55 et seq.)¹does not have the effect to exclude such proof. But this was upon the principle that the best evidence...