Ratliff v. Ratliff

• Decision Date: 02 December 1902
• Citation: 42 S.E. 887,131 N.C. 425
• Parties: RATLIFF et al. v. RATLIFF et al.
• Court: North Carolina Supreme Court

42 S.E. 887

131 N.C. 425

RATLIFF et al. v. RATLIFF et al.

Supreme Court of North Carolina

December 2, 1902

Appeal from superior court, Anson county; McNeill, Judge.

Action by W. U. Ratliff and others against J. H. Ratliff and others. Judgment for plaintiffs, and defendants appeal. Reversed.

Testimony of witness that he had made statements to others of the same matters testified to by him on the trial was competent to corroborate him.

H. H McLendon, for appellants.

J. A Lockhart, Robinson & Caudle, and Bennett & Bennett, for appellees.

CLARK J.

There is no valid objection to the issues, as every ground of contention could be presented by appropriate evidence upon the issues submitted by the court. Patterson v Mills, 121 N.C. 266, 28 S.E. 368; Coley v. City of Statesville, 121 N.C. 315, 28 S.E. 482.

There was no error in admitting the records from the register of deeds showing the deed, as there recorded, from Horne and wife to Ratliff, dated September 11, 1869, and in not requiring the introduction of the original deed. Code,§ 1251 provides: "The registry, or duly certified copy of the record, of any deed, power of attorney or other instrument required or allowed to be registered, or recorded, may be given in evidence in any court, and shall be held to be full and sufficient evidence of such deed, power of attorney or other instrument, although the party offering the same shall be entitled to the possession of the original and shall not account for the non-production thereof, unless by a rule or order of the court made upon affidavit suggesting some material variance from the original in such registry, or other sufficient grounds, such party shall have been previously required to produce the original, in which case the same shall be produced or its absence duly accounted for, according to the course and practice of the courts." Here there was no affidavit, nor suggestion, even, that the registration was not correct, and no rule of court requiring the introduction of the original deed. The production of the original at the trial cannot be required when such rule of court has not been previously obtained. Devereux v. McMahon, 108 N.C. 134, 12 S.E. 902, 12 L. R. A. 205.

This disposes, also, of the exception to the introduction of the registration of the agreement of September 10, 1869, if the probate is legal. As to this, the defendants except on the grounds: (1) That it does not appear from the registration that there was any revenue stamp on said agreement. This need not appear. Haight v. Just, 64 N.C. 739; Sellars v. Johnson, 65 N.C. 104. (2) That the proof of the handwriting of the subscribing witness was insufficient. This instrument was not recorded till March 22, 1901. It appears from the probate that the parties and the subscribing witnesses were then all dead, and the probating witness testified that he "was well acquainted with the handwriting of M. V. Horne [the subscribing witness to said agreement], and had numerous business dealings with him during his lifetime; that, to affiant's best knowledge and belief, the signature of the name 'M. V. Horne' to the aforesaid agreement, as witness to the same, is in said Horne's true handwriting, and no one else's." This is a compliance with Code, § 1246 (10).

The plaintiffs' contention is that the above deed to the defendants' father was a voluntary deed, without valuable consideration, and is to be taken in connection with said agreement, making one transaction, and that said agreement is an acknowledgment of a trust to hold said land for life, and then for his children by his first wife, who are the plaintiffs, which first wife was the daughter of the grantor in said deed. The grantee in 1893 conveyed the land, without valuable consideration, to the defendants, his children by his second wife, and has since died. The defendants contend that the agreement was not executed by their father, but is a forgery. There are several exceptions (4 to 8, inclusive) to the admission of evidence that Watt Ratliff, the grantee in said deed, and alleged signer of said "agreement," admitted that he had received the land under an agreement to hold for his life, and then for the land to go to the plaintiffs, his children by the first wife; that he paid nothing for it, and had declined to sell it because of this trust upon it. Those exceptions are without merit. The rule is thus stated in Shaffer v. Gaynor, 117 N.C. 24, 23 S.E. 156: "Declarations made by one in possession of land, characterizing or explaining his claim to ownership, or in disparagement of his own title, are competent, not only as evidence against the declarant, but against all claiming under him." The evidence of these witnesses is of a declaration tending to disparage and qualify the title of Watt Ratliff in the land, and an admission of a trust. It is competent against him, and against the defendants, who claim through a voluntary deed from him. Nelson v. Whitfield, 82 N.C. 51; Roberts v. Roberts, Id. 32; Melvin v. Bullard, Id. 37; Yates v. Yates, 76 N.C. 142; 1 Greenl. Ev. § 109.

The ninth exception, for refusal of nonsuit at the close of the plaintiffs' evidence, is without merit, both because there was evidence to go to the jury, and because the exception is waived by the defendant himself thereafter introducing evidence. Means v. Railroad Co., 126 N.C. 428, 35 S.E. 813; Parlier v. Railway Co., 129 N.C. 263, 39 S.E. 961.

Nor did the court err (tenth exception) in refusing defendants leave to introduce what they claimed was the original deed of September 11, 1869, from Horne and wife to Watt Ratliff. Evidence is irrelevant, even when not incompetent, and is properly rejected, unless it tends to prove some controverted fact. Here the said deed of September 11, 1869, had been pleaded in the complaint and admitted in the answer; and besides, its registration was in evidence without any suggestion of incorrectness therein, and there was...