Pickens v. Rymer

• Decision Date: 28 February 1884
• Citation: 47 Am.Rep. 521,90 N.C. 282
• Court: North Carolina Supreme Court
• Parties: J. T. PICKENS v. T. B. RYMER.

90 N.C. 282

47 Am.Rep. 521

J. T. PICKENS

v.T. B. RYMER.

Supreme Court of North Carolina.

February Term, 1884.

CIVIL ACTION tried on appeal from a judgment of a justice of the peace, at Spring Term, 1883, of BUNCOMBE Superior Court, before Avery, J.

This action was brought to recover the amount due on a note of which the following is a copy: “Twelve months after date we or either of us promise to pay to J. T. Pickens ninety dollars for value received of him, as witness our hands and seals, with interest from date. October 22, 1861.”

+---------------------------------+
                ¦(Signed)¦F. M. BALLEW.¦          ¦
                +--------+-------------+----------¦
                ¦        ¦             ¦[ Seal.  ]¦
                +--------+-------------+----------¦
                ¦        ¦T. B. RYMER. ¦          ¦
                +---------------------------------+
                

On this note two credits were endorsed--the one on November 1, 1869, and the other on January 3, 1871.

The defendant pleaded payment and the statute of limitations, and the plaintiff proved the execution of the note by D. Wilfong, the subscribing witness.

The plaintiff's counsel submitted the note to the inspection of the court and admitted, that if it was not a note under seal, the defendant's plea of the statute of limitations would be a bar, and upon an intimation from the court that the jury would be instructed that it was not a note under seal as to the defendant Rymer, the plaintiff submitted to a judgment of nonsuit and appealed.

Messrs. M. E. Carter and Reade, Busbee & Busbee, for plaintiff .

No counsel for defendant.

ASHE, J.

The only question presented for the consideration of this court is whether there was error in the instruction which His Honor intimated he would give the jury.

Such an instruction would have been manifestly erroneous. A seal is an essential requisite of a deed, and no writing without a seal can be a deed. Shep. Touch., 56. Blackstone also lays it down as an indispensable requisite of a good deed (Vol. 2, 304); and there is no question that two or more persons may adopt the same seal. There is abundant authority on this point. It was so held in Yarborough v. Monday, 3 Dev., 420, where this court said: “Two parties may adopt the same seal, and in that event it is the deed of both, otherwise it is the deed of one and the simple contract of the other.” To the same effect are Hollis v. Pond, 7 Hump., 222; Pequaket Bridge v. Mathis, 7 N. H., 232; Bonham v. Lewis, 3 Monroe (Ky.), 376; 4 Term Rep., 313, and 3 Ves., 578.

These authorities not only establish the principle that two or more persons may adopt one seal, but they establish the further principle that, whether the party subscribing a deed, opposite whose name there is no seal, intended to adopt the seal of another signer who has made his seal, is a question of fact for the jury, and the judge cannot upon inspection...