Kendrick v. Dellinger

• Decision Date: 17 December 1895
• Citation: 23 S.E. 438,117 N.C. 491
• Court: North Carolina Supreme Court
• Parties: KENDRICK et al. v. DELLINGER.

23 S.E. 438

117 N.C. 491

KENDRICK et al.

v.DELLINGER.

Supreme Court of North Carolina.

Dec. 17, 1895.

Delivery of Deed—Presumption—EjectmentInstructions—Questions for Jury—Exceptions.

1. A deed is presumed to have been delivered at its date.

2. Where a party, having the right to insist on the presumption that a deed was delivered at its date, disputes the evidence offered to rebut the presumption, the sufficiency of the rebutting evidence is for the jury.

3. The fact that a witness testified in the negative on an issue whether a deed was delivered at its date did not preclude the party offering him from relying on the presumption to the contrary.

4. An exception to an instruction which does not point out any specific error is too general.

5. Where, in ejectment, plaintiff introduced evidence tending to show grants from the state, and mesne conveyances connecting with them, and also possession for seven years under color of title, it was proper to submit to the jury the question of his right to recover.

6. A party cannot object to instructions as being too general where he did not request more specific ones.

Appeal from superior court, Gaston county; Timberlake, Judge.

Ejectment by John W. Kendrick and others against Philip Dellinger. Judgment for plaintiffs and defendant appeals. Affirmed.

D. W. Robinson, for appellant.

Jones & Tillett, for appellees.

AVERY, J. The assignments of error are so restricted as to preclude us from the consideration of most of the points made by defendant's counsel in his clear and well-considered argument. The defendant does assign as error, however, the refusal of the court to instruct the jury that, in any aspect of the testimony, the plaintiffs have failed to show even prima facie evidence of title in themselves when the action was brought, and that they should therefore respond to the issue in the negative.

A deed is presumed to have been delivered at the time it bears date, unless the contrary is satisfactorily shown. Lyerly Wheeler, 12 Ired. 290; Meadows v. Cozart, 76 N. C. 450. The summons was issued on the 28th of February, 1894. The deed under which plaintiffs claim bears date of February 11, 1894, and, nothing further appearing, is presumed to have been delivered at its date. The deed takes effect from the time of its actual delivery, however, if it is shown by parol testimony, to the satisfaction of the jury, to have been subsequent to the date. The party having the right to insist upon the presumption may admit the truth of the rebutting testimony; but, if he controvert its truth, it is the province of the jury to pass upon the question of its sufficiency to overcome the presumption. Vaughan v. Parker, 112 N. C. 100, 16 S. E. 908. It is settled law that, whenever the rules of evidence give to testimony the artificial weight of a presumption, the question whether it is rebutted by parol evidence introduced for the purpose must go to the jury, unless the truth of such evidence be admitted. A party who offers a witness, whether the adversary party or another, is not precluded from the privilege...