Nicholson v. Eureka Lumber Co.

• Decision Date: 27 September 1911
• Parties: NICHOLSON et al. v. EUREKA LUMBER CO.
• Court: North Carolina Supreme Court

72 S.E. 86

156 N.C. 59

NICHOLSON et al. v. EUREKA LUMBER CO.

Supreme Court of North Carolina

September 27, 1911

Appeal from Superior Court, Beaufort County; J. S. Adams, Judge.

Trespass by P. A. Nicholson and another against the Eureka Lumber Company. There was a judgment for defendant, to which plaintiffs excepted and appealed. Reversed, and new trial ordered.

Writings whose authenticity is disputed may not be taken by the jury to their room, and inspected and compared during their deliberations.

Nicholson & Daniel, for appellants.

Wiley C. Rodman, for appellee.

HOKE J.

On the trial it appeared that both parties claimed under Ruel Windley, deceased, who by his last will and testament bearing date in 1854, made disposition of certain real estate as follows:

"I give and devise to my two grandsons, George C. Respess and John B. Respess, all of my river shore lands, lying on the North side of Pamlico River and known as the William Windley, deceased, lands excepting one hundred acres which I shall lend to Ruel W. Jordan and given to his children and also except one hundred acres which I shall give to my friend, James Windley, and the rest of the said tract to be equally divided between the said George and John B Respess.

"Item 2. I give and bequeath to my friend and relative, James Windley, for favors done me by him, the following tract of land lying near the waters of old Town Creek and beginning at or near the head of Ash Branch at an oak, and from thence south 80 east 17 poles to a corner; thence with William Windley's own line east one hundred and twenty-nine poles to a corner; thence north 15 west 66 poles to a corner stake in the Savannah; thence north 76 west 160 poles to a corner; thence south 10 east 16 poles to said Ash Branch, and then to beginning. Containing one hundred acres more or less, and was patented by William Windley, deceased, to have and to hold to him and his heirs in fee simple forever."

Plaintiff claimed the 100 acres devised in this will to James Windley under a deed from a surviving child and one of the devisees of said James, and defendant claimed under a deed from the said John B. Respess, to whom the said George Respess, codevisee had conveyed his interest, and which said deed purported to convey the land devised to John B. and George Respess, under said will of Ruel Windley, and, on matters relevant to this appeal, the issue as to title was made to depend largely on the correct location of this devise of 100 acres to James Windley, defendant alleging that plaintiff had failed to locate the said land at all, and that any correct location of same, if made, would not include the locus in quo.

On this question of location there was evidence on part of plaintiff tending to fix the beginning corner of the 100 acres as a certain "oak at or near the head of Ash branch" as called for in the devise and subsequent deeds, and that the placing as contended for would result in locating this land so as to include the locus in quo, and, in rebuttal of this testimony, defendant offered, and same was received in evidence over plaintiff's objection, a certificate of survey for a land warrant and grant to Calvin Windley for 200 acres of land in Beaufort county. This certificate bearing date, or purporting to bear date, in 1841, contained a plat of land, with courses and distances, and was signed by Ruel Windley, surveyor and also the chainbearers, was without erasures or interlineations of any kind, and, as we understand the record, was the plat and survey accompanying a grant to Calvin Windley, of same date, for a tract of land in that neighborhood of the quantity stated, and was produced from the proper custody. This plat was introduced because it apparently showed a placing of Ash branch entirely different from that claimed by plaintiff, and tending to show that a correct location of the 100 acres would not cover the locus in quo. Before the same was admitted, John B. Respess, Jr., a witness for defendant, testified as follows: "Q. Do you know Ruel Windley's handwriting? A. I know it in this way: He raised my father, and was very much devoted to him, and often in looking over his papers, which I have now, my father would show me, and say, 'This is grandfather's signature.' Q. Have you seen a great deal of that writing? A. Yes, sir. Since I have been surveying I have seen quite a lot of it. By family reputation, my great-grandfather was a surveyor, and my father was a surveyor." A small map, marked "A," was handed to witness, and he was asked: "Q. Whose handwriting is this, if you know? A. That is Ruel Windley's from the source of information that I have. By the Court: Q. Do you mean to say that somebody told you that that identical paper was in Ruel Windley's own handwriting? A. Not this one. By Counsel for Defendant: Q. From the writing you have seen purporting to have been written by Ruel Windley is that, or is it not, his handwriting? A. Yes, sir; that is his handwriting."

On these facts and accompanying testimony, we are of opinion that the plat with the certificate was properly received in evidence, being admissible as an ancient document, and also by reason of competent testimony tending to show that the certificate just below the plat and giving the corners of same was signed or subscribed in the handwriting of Ruel Windley, deceased. It is well established that ancient documents--that is, documents relevant to the inquiry and bearing date or purporting to bear date at or before a period of 30 years prior to the time the same are offered in evidence--prove themselves; that is, they are admissible in evidence without the ordinary requirements as to proof of execution or as to handwriting, the recognized limitation being that they should be produced from proper or a natural custody and be free from suspicious circumstances, indicative of fraud, or invalidity (McKelvey on Evidence [2d Ed.] p 440); these preliminary requirements being for the determination of the court. The principle is stated in Stephen's Digest of the Law of Evidence, as follows: "Where any document purporting to be 30 years old is produced from any custody which the judge in the particular case considers proper, it is presumed that the signature and every other part of such document which purports to be in the...