Hughes v. Debnam

• Decision Date: 31 December 1860
• Citation: 8 Jones 127,53 N.C. 127
• Court: North Carolina Supreme Court
• Parties: WILLIAM H. HUGHES v. JOHN B. DEBNAM.

8 Jones (NC) 127

53 N.C. 127

WILLIAM H. HUGHES

v.JOHN B. DEBNAM.

Supreme Court of North Carolina.

December Term, 1860.

Where the charge of a Judge is in favor of a party, such party cannot make it a ground of objection.

Where there is doubt, whether or not a subscribing witness to an instrument signed it before the donor, it was Held that in the absence of proof to the contrary, the presumption is, that the donor signed it first.

Slight and immaterial mistakes in the registration of a deed of gift, will not avoid it.

A square piece of paper affixed with a wafer to an instrument, opposite to the name of the donor, in the place where the seal is usually placed, will, in the absence of proof that the donor intended otherwise, be valid as a seal.

Where, in an action brought to recover the value of certain slaves, the plaintiff sought to set aside a conveyance of them to a daughter, and offered evidence to show that the donor had grand-children, who were poor and in need of her bounty, it was Held competent for the defendant to introduce in evidence, in order to rebut this testimony, a conveyance by the donor of other property to these grand-children.

The 16th section of the 37th chapter of the Revised Code, makes a certified copy of a registered deed competent evidence.

It is sufficient if a subscribing witness, at the execution of the instrument, had mind enough to understand the obligation of an oath, and to prove the capacity of the donor and his execution of the deed.

THIS was an action of TROVER for the value of certain slaves, tried before SAUNDERS, J., at Fall Term, 1860, of Granville Superior Court.

The plaintiff offered evidence, tending to show, that the slaves in controversy, were the property of his intestate, Lucy Coghill, and were in her possession at the time of her death, and that the defendant converted the same after her death, and that they were of a certain value.

Defendant claimed the slaves under a gift from the intestate, Lucy Coghill, to his wife, who was the daughter of intestate, and in support of his claim, offered a writing, dated the 25th of February, 1850, purporting to convey the slaves for love and affection to plff's wife, and to have been executed by intestate and attested by one William J. Andrews. To prove the said writing, defendant called one Kittle, who testified that the signature, purporting to be Lucy Coghill's, was genuine, and that William J. Andrews was dead, and that the signature, purporting to be his, was genuine. There was upon the paper-writing, just under the name of the attesting witness, Andrews, an appearance that something had been written and cut off. The witness, Kittle, on his examination by defendant, stated that the remains of what had been cut off, were, in his opinion, the top of the letters of the name of Lucy Coghill, the donor, and defendant's counsel insisted that such was the fact. Plaintiff insisted that, if that was true, it was a spoliation and avoided the instrument, unless the defendant could explain it away. Defendant's counsel insisted for explanation, that supposing it to be so, the name was put there by mistake and cut off before the execution of the paper.

The Judge charged the jury that it was all supposition, and that there was no evidence that any name ever had been there or ever had been cut off, except what had appeared from the face of the paper itself, but, that if the jury should believe, from their inspection of the paper, that there had been a name to the paper, put there as a witness, and that it had been cut off, that would be such a spoliation as would destroy the instrument, and that was a fact for the jury.

Plaintiff contended that Andrews' name was the first under the attesting clause, and that some other name was put under his, and that the presumption was that the lower name was last in order of time, and that if that name was Lucy Coghill, as insisted on by defendant, then, the presumption was, that Andrews attested before Lucy Coghill executed it, and that that was not a sufficient attestation, and asked his Honor so to instruct the jury, which he declined to do. Pl'ff. excepted.

When this paper-writing was offered, plaintiff objected, that it had not been registered. Defendant introduced the public register and his book, from which it appeared that the writing had been correctly copied upon the book, except that the word “said,” preceding the word “property,” was not upon the book and was in the writing, and except that at the end of Lucy Coghill's name on the book, there was written the word “seal” with a scrawl around it. The writing, when offered, had not the word “seal” and the scrawl, but in its place had a piece of paper about three quarters of an inch square pasted on with a wafer. His Honor admitted the writing in evidence. Plaintiff further contended, that the square piece of paper and wafer was not...