Sherrill v. Wilhelm

• Citation: 110 S.E. 95,182 N.C. 673
• Decision Date: 21 December 1921
• Docket Number: 480.
• Parties: SHERRILL v. WILHELM.
• Court: United States State Supreme Court of North Carolina

110 S.E. 95

182 N.C. 673

SHERRILL v. WILHELM.

No. 480.

Supreme Court of North Carolina

December 21, 1921

Appeal from Superior Court, Iredell County; McElroy, Judge.

Action by J. L. Sherrill against B. M. Wilhelm. Judgment for plaintiff, and defendant appeals. New trial.

Civil action to recover possession of a tract of land under an alleged parol agreement, whereby the plaintiff contends that the locus in quo was purchased by him from one R. J. Plott title taken in the name of Dr. W. W. Wilhelm, now deceased who had advanced a part of the purchase money with the understanding that deed would be made to plaintiff upon the repayment of the amount borrowed or advanced. Plaintiff alleges that the entire purchase price was paid by him to Dr Wilhelm before his death, but that the deceased neglected to have any conveyance of the land executed to him in accordance with his agreement.

Upon the trial, R. J. Plott was allowed to testify, over the defendant's objection, to certain personal transactions and communications which he had with the deceased in regard to purchasing the land for plaintiff, as follows:

"He (Dr. Wilhelm) said he wanted to buy the land for John Sherrill. When I went to make the deed, I asked whether it should be made to him or to Sherrill. He said, 'Make the deed to me, and when Sherrill finishes paying for it, I will make him a deed.' The deed was made with this understanding at the time he asked me about the price, and when he told me Sherrill wanted him to buy the land for him, he said he owed Sherrill some amount."

There was a verdict and judgment in favor of plaintiff, and the defendant appealed.

W. D. Turner and Dorman Thompson, both of Statesville, for appellant.

D. L. Raymer and H. P. Grier, both of Statesville, for appellee.

STACY J.

Plaintiff contends that the evidence of R. J. Plott in regard to the personal transactions and communications which he had with Dr. Wilhelm, the deceased, concerning the purchase of the land in question for plaintiff, etc., is incompetent under C. S. 1795, and should have been excluded. It will be observed that Plott is the common grantor from, through, or under whom both parties claim title, mediately or immediately, "by assignment or otherwise," to the locus in quo. Thus it would seem that the evidence given by the witness falls directly within the inhibition of the statute being offered, as it is, against the defendant who also derives his title or interest "from, through or under a deceased person," to wit, Dr. Wilhelm, the party with whom the witness had the personal transactions and communications and about which he testified over objection by the defendant. Sorrell v. McGhee, 178 N.C. 279, 100 S.E. 434; Irvin v. R. R., 164 N.C. 6, 80 S.E. 78; Bunn v. Todd, 107 N.C. 266, 11 S.E. 1043.

Practically the same question here presented arose in the case of Carey v. Carey, 104 N.C. 171, 10 S.E. 156, and it was there decided that evidence, similar to that now under consideration, was...