Newbern v. Hinton

• Citation: 129 S.E. 181
• Decision Date: 16 September 1925
• Docket Number: (No. 14.)
• Court: United States State Supreme Court of North Carolina
• Parties: NEWBERN et al. v. HINTON.

129 S.E. 181

(190 N. C. 108)

NEWBERN et al.

v.HINTON.

(No. 14.)

Supreme Court of North Carolina.

Sept. 16, 1925.

Appeal from Superior Court, Pasquotank County; Cranmer, Judge.

Action by Herman Newbern and others against R. L. Hinton. Judgment for plaintiffs, and defendant appeals. No error.

This is a civil action by plaintiffs, purchasers, against the defendant, seller, on an alleged breach of a covenant of seizin, and from a judgment for plaintiffs, defendant appealed. Affirmed.

On June 24, 1920, plaintiffs purchased the Cartwright land, containing some 40 acres, from defendant for $40,000. The deed contained a covenant by defendant:

"That he was seized of said premises in fee, and had full right to convey the same in fee simple."

The plaintiffs alleged that defendant had, and conveyed only, title to a six-sevenths undivided interest in said lands, and that the children of John C. Hinton, defendant's deceased brother, owned an outstanding one-seventh interest. The defendant alleged that he owned the entire interest, and that there was no breach of the covenant sued on.

The defendant also alleged, and offered to prove, that the plaintiffs conveyed the lands in controversy, with usual warranty, February 6, 1923, and therefore they could not, now, maintain this action which was instituted January 24, 1923.

The evidence showed that this land was purchased by John L. Hinton from Mary E. Cartwright, administratrix of Samuel Cart-wright, in 1889, and that John L. Hinton died in 1909, leaving surviving him the following children: C. L. Hinton, W. E. Hinton, E. V. Hinton, R. L. Hinton, Ida Sawyer, and Mary F. Hinton, and three children of a deceased son, John C. Hinton, as follows: Sophia Morgan, Flossie Nosay, and Ada Whitehurst.

Plaintiff introduced a deed from Mary F. Hinton, C. L. Hinton, E. V. Hinton, W. E. Hinton, and Ida Sawyer and husband, L. R. Sawyer, to R. L. Hinton, dated February 1, 1912, and registered January 29, 1913, conveying grantors' "rights, titles and interests, " in the lands in controversy, for $12,500. This deed has, immediately after the description, the following statement:

"The interests hereby conveyed is five-sixths of the said tract of land, and R. L. Hinton, having heired a one-sixth interest in said land, is now owner of the entire tract."

The evidence is plenary that the defendant paid the purchase price recited in this deed.

It further appeared that John L. Hinton left a will, which was duly probated in common form in the superior court of Pasquotank county, January 29, 1910. On September 30, 1918, a caveat was filed to this will of John L. Hinton. The citations were issued October 9, 1918. The grounds of attack in the caveat were undue influence and want of sufficient mental capacity. The issues arising upon the caveat were tried at July term, 1920, Pasquotank superior court, resulting in a verdict on both grounds, for the cavea tors. On appeal to the Supreme Court, the judgment was affirmed. In re Hinton, 180 N. C. 206, 104 S. E. 341, Fall term, 1920. This record, including the opinion of the Supreme Court, appears to have been introduced in evidence at the trial below. The verdict was as follows:

"(1) Was defendant seized of and owner in fee of the entire tract of land described in the complaint at the time he executed deed to the plaintiffs? Answer: No.

"(2) If not, of what part was he seized and the owner of? Answer: Six-sevenths.

"(3) What damages, if any, are plaintiffs entitled to recover of defendant? Answer: One-seventh of $40,000, with interest from June 24, 1920."

These issues were submitted by the court, without objection. The court, after giving the contentions of the parties, as to the purchase price, charged that the measure of damages was the purchase price and interest, and that, upon a failure of one-seventh interest, it would be one-seventh of the purchase price, with interest from June 24, 1920. The defendant excepted to the following portion of his honor's charge:

"I instruct you that, if you find by the greater weight of the evidence the facts to be as testified to by the witnesses, you will answer the first issue, 'No, ' and the second issue, 'Six-sevenths.' "

Defendant's exceptions to the exclusion of evidence do not show what the defendant expected to prove, except the deeds from the plaintiffs to I. M. Meekins, each for a one-half undivided interest, and a deed of trust to one Gather, trustee, executed prior to the sale to Meekins for $20,000, which was assumed by Meekins in the purchase. It appeared that the plaintiffs received from the sale to Meekins $30,000 for the Cartwright land.

The defendant asked the court to instruct the jury as follows:

"(1) That, if the jury believes the evidence, the deed from E. V. Hinton and others to R. L. Hinton, dated February 1, 1912, recorded in Book 37, page 259, was valid to convey five-sixths undivided interest to R. L. Hinton, and that the said R. L. Hinton was a purchaser for value in good faith for the five-sixths interest.

"(2) The jury are instructed that the failure or breach of the covenant of seizin was only one-seventh of one-sixth, to wit, the interest of R. L. Hinton one-sixth, and that as John L. Hinton had seven children the interest of one child, to wit, one-seventh, was not conveyed, so that there was outstanding unsold only one-seventh of one-sixth interest in the Cartwright property sold to the plaintiffs, and the answer at most to the third issue would be one-forty-second of $40,000.

"(3) If the jury believe the evidence, the plaintiffs have sold their entire title and estate to the property described in the deed of R. L. Hinton to them since this action was begun, and have suffered no damage, and the jury will answer nothing to third issue.

"(4) If the jury believe the evidence, the defendant, in any computation of the purchase price, must consider only $40,000 paid to Morris was paid to him for his bargain with the defendant Hinton, and not as a part of the purchase price at which the defendant Hinton agreed to sell the land."

The court refused these requests. From the judgment rendered upon the verdict, the defendant appealed.

W. I. Halstead, of South Mills, and Manning & Manning, of Baleigh, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellees.

VARSEB, J. [1, 2] We are precluded from passing upon the merits of defendant's objections to the evidence, since the record does not disclose what the witnesses would have said if the questions had been allowed. The burden is on the appellant to show error, and therefore the record must show the competency and materiality of the proposed evidence. This court will not do the vain thing to send.a case back for a new trial when it does not appear what the excluded evidence is, or even that the witnesses would respond to the questions in any way material to the issues. This is the established practice in this court, in both civil and criminal cases. Whitesides v. Twitty, 30 N. C. 431; Bland v. O'Hagan, 64 N. C. 471; Street v. Bryan, 65 N. C. 619; State v. Purdie, 67 N. C. 326; Knight v. Killebrew, 86 N. C, 402; Sumner v. Candler, 92 N. C. 634; State v. McNair, 93 N. C. 628; State v. Bhyne, 109 N. C. 794, 13 S. E. 943; Baker v. Norfolk & S. R. Co., 144 N. C. 40, 56 S. E. 553; Boney v. Atlantic Coast Line R. Co., 155 N. C. 95, 71 S. E. 87; Stout v. Valle Crucis, S. & E. P. Turnpike Co., 157 N. C. 366, 72 S. E. 993; Dickerson v. Dail, 159 N. C. 541, 75 S. E. 803; Fulwood v. Fulwood, 161 N. C. 601, 77 S. E. 763; In re Smith's Will, 163 N. C. 466, 79 S. E. 977; Wallace v. Barlow, 165 N. C. 676, 81 S. W. 924; Elm City Lumber Co. v. Childerhose & Pratt, 167 N. C. 40, 83 S. E. 22; Brinkley & Lassiter v. Norfolk Southern B. Co., 168 N. C. 428, 84 S. E. 700; Morton v. Washington Light & Water Co., 168 N. C. 582,^; 587, S4 S. E. 1019; Wilson v. Scarboro, 169 N. C. 654, 86 S. E. 611; Schas v. Equitable Life Assur. Soc, 170 N. C. 421, 87 S. E. 222, Ann. Cas. 1918A, 679; In re Edens, 182 N. C. 398, 109 S. E. 269; Snyder v. Asheboro, 182 N. C. 708, 110 S. E. 84; State v. Jestes, 185 N. C. 735, 117 S. E. 385; Skyland Hosiery Co. v. American By. Express Co., 186 N. C. 556, 120 S. E. 228; State v. Ashburn, 187 N. C. 717, 722, 122 S. E. 833; Barbee v. Davis, 187 N. C. 79, 85, 121 S. E. 176; Smith v. Myers, 188 N. C. 551, 125 S. E. 178; State v. Collins, 189 N. C. 15, 126 S. E. 98.

While the court refused to give the defendant's fourth prayer for instructions, the action of the court has not prejudiced the defendant, because the jury has accepted this view and has found the purchase price to be $40,000. If any error was committed in this...