Ingram v. Hall

• Decision Date: 30 April 1795
• Parties: JOHN INGRAM, ASSIGNEE, ETC., v. JOHN HALL.
• Court: North Carolina Supreme Court

2 N.C. 193

JOHN INGRAM, ASSIGNEE, ETC.,

v.JOHN HALL.

SUPERIOR COURTS OF NORTH CAROLINA

APRIL TERM, 1795

A bond for payment of money, without a subscribing witness, can only be declared upon as a sealed instrument; and proof of the obligor's handwriting will be admitted as proof of the seal; but proof of the seal is not evidence of delivery, which is to be inferred from other circumstances.

DEBT, and non est factum pleaded. The jury being sworn, this special case was made, viz.:

The jury being sworn in this case, a paper-writing was produced in the words and figures following, that is to say:

"Ten days after this 22 June, 1793, I promise to pay to William Cutlar, or order, for value received, one hundred and seventy-five pounds, ten shillings currency. Witness my hand and seal, day and date first above written.

£175.10. JOHN HALL, (SEAL.)"

On the back of said paper-writing were the following endorsements, viz.:

"Pay the within to Geo. Hooper, or order. WM. CUTLAR." "Pay the within to J. Ingram, Esq., or order. G. HOOPER."

It appeared, on inspection of the paper, that there was not a subscribing witness to it, but that there was a seal; and the plaintiff's counsel offered a witness to prove the handwriting of the defendant, to support the action. To this the defendant's counsel objected, as insufficient in law to support the action.

The court, therefore, directed the witness to be sworn, and a verdict to be taken, and reserved the question of law, on the above objection, for further consideration.

It was further objected in the case that an action of debt cannot be maintained on the writing produced; whereon, also, the court took time to advise; and it is agreed, in case the court shall be of opinion that, on either of these objections, the plaintiff ought not to recover, then a nonsuit shall be entered.

But if the court should be of opinion that both these objections are invalid in point of law, then judgment to be entered for the plaintiff.

The witness not only proved the name subscribed, but also the word seal, written in the circumference of the seal and scratched with a pen, to be in the handwriting of the defendant.

At October Term, 1795, the Court gave their opinion as follows:

HAYWOOD, J. Before we proceed to the immediate investigation of the first question, Whether, in the case of a sealed instrument, unattested by any subscribing witness, the handwriting of the party may be admitted in evidence, it may be proper to take a view of the origin of deeds, in our law, and of the various changes and alterations the law has undergone with respect to that species of instruments, in order to be accommodated to the different circumstances which different periods of time have produced. This may have a stronger tendency to place the present question in a true light than perhaps any method of treating the subject that could be devised.

Let us consider, therefore, (1) the origin of reducing contracts to writing; (2) the origin of sealing, with the uses that have been made of it at different periods; (3) the origin of delivery.

We will then consider the only circumstance essential to the constitution of a deed at this day, and, lastly, from all these premises, we will draw conclusions applicable to the point now in controversy.

(1) All writers agree that the northern nations of Europe, who spread themselves over the southern and western parts of it, were an illiterate people, who despised all arts but those of war. The Saxons who founded the Heptarchy in England, and afterwards the English monarchy, were part of those people; they had, in general, no knowledge of letters; their laws and customs, their legal ceremonies, were preserved and transmitted to others and to posterity by tradition only. To keep up a military spirit, and to have a band of warriors always ready at command, it was the universal practice of the conquering leaders of these nations to divide the conquered country into allotments, which were parceled out to their followers: first, at the will of the lord or leader; next, for the better encouragement of agriculture, for life; and, last of all, forever or in fee. About the time when it began to be usual to make these grants for life, the Christian religion, under the auspices of the Papal see, was propagated in England by St. Augustine and others, and was soon adopted and received as the national religion. Its priests were men of some learning; they here, as in all other places where they have been received, began to grasp at temporal advantages; they inculcated upon the minds of the people that it was an act of the most meritorious piety to provide for the maintenance of the ministers of God. This doctrine had its effect, and donations of allotments of land began to be made to the Church, also for life; but this life was supposed to be perpetual, as the Church never died. The donations of these allotments, for want of a better method of perpetuating the transaction among the laity, who knew nothing of letters, had always been made by livery of seizin, done in the most solemn form, to impress it on the mind, before a number of the co-vassels or tenants of the lord, who, in case of a dispute, were assembled in the lord's court, and determined chiefly by the remembrance which these impressions had made between the parties. The presumption was that if some who were present, from length of time, had forgotten some of the circumstances or conditions annexed to the donation, others of them might remember them, and so, by the united remembrance of all together, might, in the end, ascertain the truestate of facts. This, by the way, I suspect was the origin of juries, and of the unanimity required in their decision. Each juror contributed the circumstances lodged in his mind to the general stock of information which formed the verdict, and by conference with his fellows, brought to their recollection the circumstances which he remembered and the others, or some of them, had forgotten, until at length the whole transaction was renovated in the minds of all. This mode of conveyance answered the purpose sufficiently when donations were for the life of an individual only; for it would seldom happen that he would

survive all the other pares of the lord's court who were present at the investiture. But when donations were made for life to a churchman, for the benefit of his Church, and it was a received maxim that the Church never died, this method no longer answered the purpose as to them; for the donation might have continuance, and the conditions upon which it was made might come in question, after every one of the pares present at the investiture were no more, and then the allotment might be liable to be resumed by the lord—all lands included in his territory or manor, not granted to one of his vassals, belonging to him; and, after the death of all the pares, no evidence remained of the investiture, much less the conditions annexed thereto. It became necessary, therefore, when the Church was concerned, to have some other mode of perpetuating the transaction than mere livery of seizin; and the clergy, being the learned part of the community, devised the mode of reducing the terms of the donation to writing. Sullivan, 82. And when the lord, on account of sickness, the distance of the land from his place of residence, his being employed in some other business, or some other cause, could not go upon the land to make livery, then the writing containing the terms of the donation was solemnly delivered, before the peers of the Court also, in lieu of the land; to the end that, being delivered before them in so solemn a form, they might be witnesses of the investiture of the land mentioned therein, and might be able upon trial to ascertain the identity of the paper delivered should the dispute happen in their time. This was not, indeed, a complete investiture of itself; it was termed the improper investiture, and bound the lord to make a more formal livery of seizin of the land contained in the deed at a future day, and was a sufficient security to the donee in the interim. Experience evinced the safety and certainty there was in reducing these landed contracts intowriting in the case of churchmen, and the laity, wishing to be as secure as possible in their possessions, adopted by degrees the same method; which afterwards, when these allotments were extended to the heirs of the possessor, became equally necessary for the laity as the clergy, and from that time deeds of feoffment, to accompany the livery of seizin, became generally used, though the livery of seizin was good without them; and these contracts in writing, being found so advantageous in perpetuating the terms and conditions of a landed donation, were, by degrees, converted to the purpose of perpetuating other contracts that concerned only personal estate, which formerly, amongst the unlettered Saxons, were completed by shaking of hands only. 2 Bl. Com., 448.

(2) The preserving the remembrance of a landed contract having thus become general in the times of the Saxon government in England, and

the general illiterature of the laity of all ranks prevailing universally, it was customary for them to put some mark, usually the sign of the cross, to identify, as well as they could, the writing they had agreed to; and this was done coram paribus, who, upon the trial, might remember it, or be able to distinguish it from some circumstance attending the making the deed or the mark itself. But upon the Norman conquest, it became the policy of the conqueror and his sons to abolish the Saxon customs, and for this purpose to draw as many causes as possible to be determined in the curia regis, where the judges were Normans (Sullivan, 339, 343, 369, 374), where the pares of the neighborhood were frequently not called upon to decide between the litigants, as they uniformly were in the courts of Saxon institution, the county court, hundred court, etc. About this period the...