Martin v. Knight

• Decision Date: 06 May 1908
• Citation: 61 S.E. 447,147 N.C. 564
• Parties: MARTIN v. KNIGHT.
• Court: North Carolina Supreme Court

61 S.E. 447

147 N.C. 564

MARTIN v. KNIGHT.

Supreme Court of North Carolina

May 6, 1908

Appeal from Superior Court, Stokes County; Ferguson, Judge.

Action by E. L. Martin against T. B. Knight, administrator de bonis non of W. L. Fallen, deceased. From a judgment for plaintiff defendant appeals. Reversed.

To explain the testimony and the situation of persons or objects, maps, diagrams, drawings or photographs may be used.

Plaintiff sued the original administratrix of W. L. Fallen, deceased for the recovery of the amount due on a bond and duebill, set forth in the complaint. The administratrix having died, Thos B. Knight was appointed administrator de bonis non and made party defendant. Plaintiff alleged that defendant's intestate, on November 16, 1896, executed his bond, under seal, obligating himself to pay plaintiff, six months after date, $2,000 with interest from date; that no part of said bond had been paid save the sum of $40, February 13, 1897 that, on April 9, 1897, said intestate executed his duebill to plaintiff for the sum of $225 for borrowed money, and that no part thereof had been paid. Plaintiff set forth other indebtedness, which was eliminated by the verdict of the jury. Defendant denied the execution of either bond or duebill, and denied the averment that they had not been paid. At the proper time defendant tendered the following issue: "Did the plaintiff fail or refuse to list for taxation the $2,000 note, described in the complaint, with the view to evade the payment of the taxes thereon? He tendered an issue, in same form, in regard to the duebill. His honor declined to submit the issues, and defendant excepted. The following issues were submitted to the jury: "(1) Did the defendant's intestate execute the $2,000 note sued on as alleged? (2) Has the whole or any part thereof been paid?" Similar issues were submitted in regard to the duebill. Plaintiff introduced a number of witnesses, who testified in regard to the business relations between plaintiff and defendant's intestate. Several witnesses testified that they were acquainted with Fallen's handwriting, and that the signatures to the note and duebill were in his handwriting, and that the "body" of the note was in plaintiff's handwriting. On cross-examination, other papers "purporting to be in Fallen's handwriting" were shown the witnesses, and they were examined in regard to certain letters on the several papers, and asked their opinion respecting their similarity, etc. H. T. Pratt, a witness for plaintiff, was shown the note and requested to look at the letter "L" in the signature of W. L. Fallen, and the "L" in the name of E. L. Martin, on the body of the note, and give his opinion whether the two letters were not in the same handwriting. To this question he answered: "I can see a difference in the two letters." He was then asked to "point out to the jury your points of difference." The defendant's counsel asked the witness to take the exhibit, or paper, to the jury box and point out to them the difference. To this, plaintiff's counsel objected His honor sustained the objection. Defendant excepted. The same request was made in regard to other witnesses and exceptions noted to the ruling of his honor. The bond and duebill were introduced in evidence. Defendant introduced a number of witnesses who testified in regard to the business relations between plaintiff and his intestate, tending to show that defendant's intestate did not execute the note and duebill or owe the amount named therein. Among other witnesses introduced by defendant was Dr. J. H. Ellington, who testified that he was acquainted with the handwriting of Fallen. He was shown several papers, and expressed the opinion that they were in his handwriting. He was then shown the bond, and expressed the opinion that the signature was not Fallen's handwriting. The following questions were asked Dr. Ellington: "I ask you to look at the letter 'L' in the signature of W. L. Fallen to the bond, and say if, in your opinion, the letter 'L' in the name of E. L. Martin, in the body, is in the same handwriting? (Plaintiff objected. Sustained. Defendant excepted.) Please look at the 'L' in the name of W. L. Fallen, at the end of the bond, and at the letter 'L' in the name of E. L. Martin, in the body of the bond, and say, in your opinion, whether or not they are alike? Very much alike." The witness was then asked to take the papers and "show the jury why you think they are alike. (The plaintiff objected. Sustained. Defendant objected.)" The defendant introduced James A. Scales, who testified that he was register of deeds of Rockingham county. Plaintiff lives in said county. Witness was custodian of the original tax list; the lists from 1896 to 1905 were burned when the courthouse was destroyed. "I have with me the original tax list of E. L. Martin for the year 1906. I have here the tax books of my county for the years 1897-98-99-1900. The original abstracts, or lists, for three years were burned." The defendant proposed to prove, by the introduction of the taxbooks, for the years 1897-1900, that E. L. Martin did not list for taxation a $2,000 note or a $225 duebill. The court declined to admit the taxbooks, and defendant excepted. "The defendant offered in evidence the original tax abstract for the year 1906, in order to prove that no such note or duebill was listed." This was also excluded upon plaintiff's objection. Defendant excepted. There was no exception to his honor's instructions to the jury. Verdict for plaintiff. Motion for new trial for errors in refusing to submit issue tendered by defendant and rejecting testimony. Motion denied. Judgment. Appeal by defendant.

Manly & Hendren, C. O. McMichael, and Scott & Reid, for appellant.

Watson, Buxton & Watson, J. D. Humphreys, and Lindsay Patterson, for appellee.

CONNOR J.

The defendant's exception to his honor's refusal to submit the issue in regard to the tax list is based upon the contention that, by Revisal 1905, § 5219, subd. 11, and Acts 1907, p. 339, c. 258, § 32, a failure to list, with a view to evade the payment of taxes, solvent credits, prevents their recovery by an action at law or suit in equity in the courts of the state, until they are listed and taxes paid thereon. The matter involved in the issue is not set up or pleaded in the answer as a bar to the action, and was not therefore issuable. Only matters alleged and denied, or new matter alleged in the answer by way of defense, are to be submitted to the jury by specific issues. Without passing upon the question whether the failure to list the note and duebill for taxation, "with a view to evade the payment of taxes thereon," is an affirmative defense which must be set up in the answer, or whether it may be taken advantage of upon the general denial, we entertain no doubt that, unless pleaded, it may not be made the subject of an issue. As has been frequently said by this court, issues arise upon the pleadings. It will be observed that the statute does not make the failure to list solvent credits an absolute bar to their recovery, but provides "that they shall not be recoverable *** until they have been listed and taxes paid thereon." It would seem that the failure to list does not destroy the cause of action, but postpones recovery thereon until they are listed and the tax thereon is paid. It would be but fair to bring the matter to the attention of the court by some appropriate pleading, to the end that the creditor may either list and pay the tax, or show that the "note, claim, or other evidence of debt" is not "subject to assessment and taxation," as, for instance, that it is not solvent, or that plaintiff was himself indebted in a larger amount than all of his solvent credits (Revisal 1905, § 5219 [5], 5227), or that, for any other reason he was not required to list and pay tax thereon. It was not the purpose of the Legislature to release the debtor for failure to list by the creditor, but to postpone the recovery of the debt, if subject to taxation, until the tax was paid. It is not clear that the liability to assessment is to be tried by the jury. It may be more convenient for the court to inquire into it. We note the suggestion that, instead of delaying the trial, the court proceed to judgment and order a stay of execution until the debt is listed and the tax paid thereon. This provision has recently been placed in our revenue law, and, so far as we are advised, has not before been brought to the attention of the court. Its interpretation is not before us, and we forbear saying more than is necessary to a decision of the exception. His honor correctly declined to submit the issue.

Plaintiff introduced H. T. Pratt, who testified that he was acquainted with the handwriting of Fallen. He was shown the note and the duebill, and testified that the signatures were "those of Fallen." The body of the note was in the handwriting of the plaintiff, E. L. Martin. This, we understand, was conceded. Defendant, upon cross-examination asked the witness to look at the letter "L" in the signature and at the same letter in the body of the note, and say whether they were not the same handwriting. He answered, "I can see a difference in the two." He was asked to point out to the jury the difference. The defendant's counsel asked the witness to take the note to the jury box, and point out to the jury the difference. Plaintiff objected. His honor sustained the objection, and defendant excepted. Dr. Ellington, a witness for defendant, having testified that he was acquainted with Fallen's handwriting, was asked to examine the same letter in the body of the note and in the signature. He said, "They are very much alike." In his cross-examination he was shown a paper "No. 1" by plaintiff,...