Moffitt v. Maness

• Decision Date: 25 March 1889
• Parties: MOFFITT et al. v. MANESS.
• Court: North Carolina Supreme Court

9 S.E. 399

102 N.C. 457

MOFFITT et al. v. MANESS.

Supreme Court of North Carolina

March 25, 1889

Appeal from superior court, Moore county; MERRIMON, Judge.

Action by E. E. Moffitt and another, executors, etc., of E. N Moffitt, against Elias Maness. Defendant appeals.

Where a mortgage recites the execution of a bond to which it is collateral, and is introduced in evidence on foreclosure without the bond, and no exception to its admission is made and no special instructions in reference to the absence of the bond are asked, it will be assumed that the bond was signed, sealed, and delivered.

J. W Hinsdale, for appellant.

W. J Adams and J. C. Black, for appellees.

SHEPHERD J.

This was a civil action to foreclose a mortgage, tried before MERRIMON, J., and a jury at the October term of Moore superior court, 1888. The plaintiff executors alleged that the defendant executed a bond to their testator in the sum of $580.50, and a mortgage on certain lands to secure the payment of the same. They also allege that no part of said indebtedness has been paid. The defendant denied all of these allegations. The plaintiffs offered in evidence the mortgage, which recited the execution of the bond, and stated that they did not have possession of "any notes against the defendant.' ' The defendant then introduced Eli Howard, who testified that he was subscribing witness to the mortgage, and that he was present with E. N. Moffitt and the defendant, Elias Maness, when it was executed. That they did not go into any settlement when it was executed, but that it was agreed that it should cover whatever should be found to be due upon a settlement. The court held this evidence incompetent. The defendant excepted. This was all the evidence. The court charged the jury that if they believed the evidence they must find that the defendant owed the plaintiffs the sum named in the mortgage, with interest, according to the mortgage. The defendant excepted. Judgment for the plaintiffs. Appeal by defendant.

Whatever effect the non-production of the bond may have upon the character of the judgment which should be rendered, (and of this we will speak hereafter,) there was clearly enough in evidence to warrant the charge of the court and the verdict of the jury. No exception was made to the admission of the mortgage alone, and no special instructions were asked in reference to the absence of the bond. So, in passing upon the exception as to the exclusion of the parol testimony offered by the defendant, we must assume that such a bond was signed, sealed, and delivered by the defendant to the testator. The answer denies the execution of the bond and mortgage, and sets up no equitable defense whatever. We must therefore determine the question in its legal aspects alone. There is, we fear, too great a tendency to relax the well-settled rules of evidence against the admissibility of parol testimony to contradict, vary, or add to the terms of a written contract; and it is thought that the courts, in their anxiety to avoid probable injustice in particular cases, are gradually construing away a principle which has always been considered one of the greatest barriers against fraud and perjury. Even the supreme court of Pennsylvania, which perhaps has gone further than any other in this direction, sounds the alarm, and BELL, J., who delivered the opinion of the court in Rearick v. Rearick, 15 Pa. St. 66, says: "Were the door opened still wider for the admission of all the loose dicta of the parties, running, it might be, as in this instance, through a long course of years, the flood of evil would become so great as to sweep before it every barrier of confidence and safety which human forethought, springing from experience, is so sedulous to raise against the treachery of memory and the falsehood of men. To avoid, therefore, what would really be a social calamity, it is recognized as a settled maxim that oral evidence of an agreement, *** entertained before its execution, shall not be heard to vary or materially affect it. *** If anydicta, or even decision, in hostility to this axiom are to be found, they must be ascribed to the strong desire we are all apt to be swayed by, to defeat some strongly suspected fraud in the particular case. But these occasional abberrations but lead to the more emphatic reannunciation of a principle found to be essential to the maintenance of that certainty in human dealings, without which commerce must degenerate into chicanery, and 'trade' become another name for 'trick."' In speaking of the higher dignity and the inviolability of written evidence, TAYLOR, J., in Smith v. Williams, 1 Murph. 428, elegantly remarks that "the writers on the law of evidence have accordingly, in arranging the degrees of proof, placed written evidence of every kind higher in the scale of probability than unwritten; and, notwithstanding the splendid eloquence of Cicero to the contrary in his declamation for the poet Archias, the sages of our law have said that the fallibility of human memory weakens the effect of that testimony which the most upright mind, awfully impressed with the solemnity of an oath, may be disposed to give. Time wears away the distinct image and clear impression of the fact, and leaves in the mind uncertain opinions, imperfect notions, and vague surmises."

Impressed with the warning thus given by these able judges, we will proceed to an examination of the question before us. Here is a bond containing an absolute promise to pay to the obligee a certain sum of money; and, without the slightest suggestion of fraud, mistake, or accident in the pleadings or testimony it is proposed to show that it was not an absolute promise to pay a definite sum, but "that it was agreed that it should cover whatever should be found to be due upon a settlement." It cannot, it seems to us, be doubted that the proposed testimony materially contradicts and varies the terms of the writing. The most specious reasoning is incapable of reconciling them. The bond is a solemn declaration that so much is now due. The testimony offered is that the sum mentioned is not due, but is to...