Mayo v. Whitson
| Decision Date | 30 June 1855 |
| Citation | 47 N.C. 231,2 Jones 231 |
| Court | North Carolina Supreme Court |
| Parties | JAMES MAYO v. WM. H. WHITSON AND ABNER PEARCE. |
Upon a question, before a court of record, whether its own minutes, of a former term, shall be amended so as to set forth truly its own transactions, it is not bound by the ordinary rules of evidence, but may resort to any proof that is satisfactory to it.
An ex parte affidavit, in such a case, therefore, taken before a justice of the peace, is not improper.
In a question, whether a court shall enter, nunc pro tunc, an order made at a former term (but not then entered) the propriety of such former order cannot be enquired into in this Court.
THIS was an APPEAL from the Superior Court of Orange, from a judgment of his Honor Judge DICK, at the last term of that court, affirming an order of the County Court of Orange to amend a former order of that court.
The applicants for this amendment are free persons of color. They had been the slaves of Major Absolom Tatom, but supposing they were duly emancipated by his will, and by the action of the court at Feb. term, 1803, of that county, they have, ever since that time, acted as free persons, and have been taken and accepted as such, in the community where these transactions occurred.
Not long before the date of this application, it was discovered that no order for the emancipation of the slaves, mentioned in the will, had been entered on the minutes, or on any other record of Orange county; and several of the descendants of these persons were seized as slaves by the assignees of the next of kin of Absolom Tatom.
Thereupon, the plaintiff filed his petition and gave notice to Pearce and Whitson, and the next of kin and legatees of Absolom Tatom, that he would apply at the May Term, 1854, of Orange County Court, for an amendment of the record, nunc pro tunc, so as that it should set forth, at February Term, 1803, the decree emancipating George, Cate, Sally and her child, young George, and Jack, slaves directed to be emancipated and set free, by the last will and testament of the said Absolom Tatom. Upon a motion in court to make the amendment of the minutes of February Term, 1803, the following affidavit of Duncan Cameron was offered in the case, and opposed by the defendants.
“Statement made by Duncan Cameron, of the city of Raleigh, this 26 of September, 1851.
Affiant saith that he wrote the will of Major Tatom in the city of Raleigh, in the month of December, 1802, he said Tatom being, at that time, a member of the General Assembly, and having died at or about the close of the session.
Affiant was aware, from frequent conversations with said Tatom in his life time, of his intention to emancipate his slaves by his will; and accordingly, by his will, as will be seen by reference thereto, he directed said slaves to be emancipated for meritorious services, rendered to him.
The said will was admitted to probate at February Term, 1803, of Orange County Court; and the executors, therein named, qualified thereto: and at the same term, or at some subsequent term, soon thereafter, the executors united in an application to the county court to emancipate said slaves; the court sanctioned the application, and ordered the said slaves to be emancipated. This affiant drew up the decree emancipating said slaves, and handed it (to) John Taylor, then Clerk of the said court, and directed it to be entered on the minutes, as a record of said court.
Affiant always supposed such entry was made, as it ought to have been. The said negroes were thereafter, and always have been, recognized as free persons, and have acted as such in the community ever since. Affiant, who was one of the executors, never regarded them as assets and was never called upon to account for them as such.
The following probate was affixed to the same:
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¦“State of North Carolina,¦)¦ ¦
+-------------------------+-+-----------------------------¦
¦Wake County. ¦)¦On this, 10th day of October,¦
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1851, Duncan Cameron came before the undersigned, a justice of the peace, in and for the county aforesaid, and made oath that the matter contained in the foregoing affidavit, is true, according to the best of his recollection (and) belief.
Subscribed and sworn to before me, day and year above mentioned.
C. B. ROOT, J. P.”
To which is added the certificate of the clerk of Wake County Court, with the seal of office, that C. B. Root was a justice of the peace of that county.
The will of Absolom Tatom was also put into the case as evidence, of which, the following extract only is material to the question: “I give and bequeath to my friends, John Hogg, Catlett Campbell, David Ray, William Kirkland and Duncan Cameron, my negroes, George, Cate, Sally and her child, with their future increase, young George, and Jack, to them, their heirs, executors and administrators, in trust and in confidence, that they will use their best endeavors to procure them to be emancipated and set free, for meritorious services rendered me.”
Samuel Goodwin, John Hogg, Catlett Campbell and Duncan Cameron were appointed executors. The will was duly proven at February sessions, 1803, of the county court.
At the May Term, 1854, aforesaid, upon proof of the facts recited in the same, the following Order was made and entered on the minutes of the county court of Orange, viz:
“In the matter of George, Cate, Sally and her child, young George, and Jack, claiming to be free negroes, formerly the slaves of Absolom Tatom, deceased--on motion, and on the affidavit of Duncan Cameron, deceased, herewith filed, and upon the admission that the aforesaid negroes and their descendants have always been reputed free negroes, and have always acted as such, since the decree of emancipation mentioned in said affidavit, until the capture of James Mayo, in 1853, one of the descendants of the said slaves, who instituted suit therefor, which is now pending in the Superior Court of Orange, and that the estate of said Tatom was settled by suit in Equity, commencing in 1816, and ending in 1825, without any claim on account of said slaves, and it appearing that Catlett Campbell, Duncan Cameron and Samuel Goodwin, qualified at February Term, 1803, and that John Hogg, remaining executor, qualified at May Term, 1803: It is ordered and adjudged by the Court, that the records of this Court, at May Term, 1803, be amended by the entry, nunc pro tunc, of the decree for the liberation of said slaves, which will appear on reference to the record of that term.”
Paul Cameron, the surviving executor of Absolom Tatom, appeared in court and assented to this amendment.
From this order of the county court of Orange, an appeal was taken to the superior court of that county, and the case heard de novo, when the foregoing will of Major Tatom, with the certificate of probate, and of qualification of the executors, was adduced in evidence. The foregoing affidavit was also produced, authenticated as before stated, and moreover, in the superior court, proven by J. H. Bryan, the subscribing witness thereto: this affidavit was objected to by the defendants' counsel, but admitted by the court; for which the defendants excepted. The plaintiffs also showed that the negroes in question, ever since the year 1803, were taken and accepted as free persons in the county of Orange, where they resided. The record of the suit for the settlement of Major Tatom's estate, the material portion of which is recited in the order of the county court, appealed from, was also put in as evidence.
No demand was ever made of the executors for these negroes, nor in any way were they treated as assets of the estate.
The defendants showed that they had assignments of their rights in these negroes from the next of kin of Absolom Tatom.
Upon consideration of the case, his Honor was...
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