Norris v. Stewart's Heirs

• Decision Date: 10 March 1890
• Citation: 10 S.E. 912,105 N.C. 455
• Parties: NORRIS v. STEWART'S HEIRS.
• Court: North Carolina Supreme Court

10 S.E. 912

105 N.C. 455

NORRIS v. STEWART'S HEIRS.

Supreme Court of North Carolina

March 10, 1890

Appeal from superior court, Harnett county; ARMFIELD, Judge.

Action by W. B. Norris against N. S. Stewart, and, after his death pending suit, against his heirs and administrator, to set aside a deed as procured by fraud and undue influence. Judgment for plaintiff, and Norris' administrator appeals.

W. E Murchison, F. P. Jones, and Mr. McLean, for appellant.

Cook Sutton & Buxton, for appellee.

SHEPHERD J.

1. When Rachel Johnson was introduced in behalf of the plaintiff, her competency was objected to by the defendant. The court overruled the objection, and the defendant excepted. Conceding that she was interested in the result of the action, it is too plain for argument that she was a competent witness, the only restriction being she could not testify as to any transaction or communication between herself and her deceased husband. Code, § 590. Being a competent witness, the general objection was properly overruled, and she was permitted to testify to many matters which were not inhibited by the above section of the Code. When she was proceeding to testify to such inhibited transactions and communications, it was the duty of the defendant to interpose his objections and, as he failed to do so, he must be deemed to have waived them.

2. The exception to the refusal of his honor to admit the testimony as to the good character of Stewart is likewise without merit. The action is brought by the heir at law of Amos Johnson for the purpose of setting aside a deed executed by him to Neill S. Stewart, the ancestor of the defendants, on the ground that said Stewart obtained the execution of the said conveyance by fraud and undue influence. There was testimony tending to sustain the allegations of the plaintiff; and the testimony as to character was offered to contradict such testimony, and for "general purposes." As a general rule, evidence of good general character is inadmissible by way of defense in civil actions, in which a party is charged with a specific fraud, because the character of every transaction must be ascertained from its own circumstances, and not from the character of the parties. Fowler v. Insurance Co., 6 Cow. 673. Such evidence is not admitted in civil actions unless the nature of the action involves the general character of the party, or goes directly to affect it. 1 Greenl. Ev. § 54; 1 Phil. Ev. (10th Ed.) 757; Church v Drummond, 7 Ind. 17; Gutzwiller v. Lackman, 23 Mo. 168; Porter v. Seiler, 23 Pa. St. 424; Ward v. Herndon, 5 Port. (Ala.) 382. In such a case, no matter how serious a moral delinquency may be involved in a fact, and how much the establishment of that fact may affect a party's reputation, he cannot invoke the aid of his previous reputation to disprove the fact. Smets v. Plunket, 1 Strob. 372. In civil cases, where the question of character is directly in issue, and material as to the amount of damages, as in seduction or slander, evidence of character is admitted. Wright v. McKee, 37 Vt. 161. The foregoing authorities, taken from the able and discriminating note of Mr. Freeman to the case of O'Bryan v. O'Brayan, 53 Amer. Dec. 133, are entirely sustained by the decisions of this and other courts both in England and America. See Heileg v. Dumas, 65 N.C. 214; McRae v. Lilly, 1 Ired. 118. It is contended, however, by the defendant, that Stewart's character was put in issue. This is a misconception. The true rule is laid down by TILGHMAN, C.J., in Anderson v. Long, 10 Serg. & R. 61: "The plaintiff's counsel say that the character of James Anderson was put in issue here, because the defendants accused him of fraud. But that is not putting his character in issue. By the same mode of reasoning, the defendant's character is put in issue in every action of assumpsit, because the declaration charges him with an intent to deceive and...