Marcom v. Adams

• Decision Date: 08 March 1898
• Citation: 29 S.E. 333,122 N.C. 222
• Court: North Carolina Supreme Court
• Parties: MARCOM . v. ADAMS.

29 S.E. 333

122 N.C. 222

MARCOM .

v.ADAMS.

Supreme Court of North Carolina.

March 8, 1898.

Trial — Misconduct of Judge — Evidence — Recital in Deed—Ciiaracter of Defendant.

1. Where the fact of the payment of the price of certain land sold by defendant to plaintiffs intestate was in issue, and plaintiff objected to defendant's showing that the recital of payment in his deed, introduced by himself, was untrue, a remark by the judge to defendant's counsel, that "plaintiff seems to have put you in a hole. I would be glad to help you if I could, "—was objectionable under Act 1796 (Code, i 413), which forbids any expression on the weight of the evidence.

2. Evidence that the recital of the payment of the price in a deed was untrue was admissible, as such acknowledgment is not contractual, but is merely a receipt, and therefore only prima facie evidence.

3. It was error to permit plaintiff to produce evidence of defendant's character, in an action in which he had not been examined as a witness, and where his character had not been called in question bv the nature of such action.

4. It was error to permit plaintiff to ask his witness if he had not "heard that defendant had committed forgery, " and if he "did not know that defendant had been indicted for forgery."

Appeal from superior court of Wake county; Adams, Judge.

Action by J. C. Marcom, administrator of the estate of A. S. Pollard, deceased, against J. Q. Adams. Prom a judgment on a verdict in favor of plaintiff, defendant appeals. Error.

This action was commenced before a justice of the peace for the recovery of $12.85. The defendant admitted plaintiff's account, and pleaded a counterclaim for 5 5/16 acres of land, sold to A. S. Pollard, plaintiff's intestate, at $12.50 per acre, and posts of the value of $1.75. The plaintiff denies counterclaim for land. The case was taken to the superior court by appeal from the justice's judgment. It was in evidence that the land conveyed to said A. S. Pollard had been bargained for in two tracts, one tract of 4 acres was bargained to one John Pollard, and a note for $50 was given by said John Pollard to said J. Q. Adams, and that the said John Pollard assigned his right to said land to said A. S. Pollard, no deed having been executed to said John Pollard; and a year or so afterwards the said A. S. Pollard bought 5 5/16 acres from said J. Q. Adams, adjoining the 4 acres sold to John Pollard, and by request of John Pollard, who had paid for the said 4 acres, a deed was executed to A. S. Pollard, along with the deed for the 5 5/16 acres, making the deed for 9 5/16 acres. It was admitted that the 4-acre tract had been paid for.

J. H. Fleming, for appellant.

Battle & Mordecai, for appellee.

CLARK, J. The plaintiff objected to the defendant's showing that the recital of payment in a deed Introduced by himself was untrue. His honor remarked to counsel for defendant: "The plaintiff seems to have put you in a hole. I would be glad to help you if I could." The remark was excepted to by the defendant, and was objectionable under the act of 1796 (now section 413 of the Code), which forbids...