Smith v. Moore

• Decision Date: 19 November 1908
• Parties: SMITH v. MOORE et al.
• Court: North Carolina Supreme Court

62 S.E. 892

149 N.C. 185

SMITH v. MOORE et al.

Supreme Court of North Carolina

November 19, 1908

Appeal from Superior Court, New Hanover County; Neal, Judge.

Action by Louise B. Smith against Susan E. Moore and others. Judgment for plaintiff. Defendants appeal. No error.

This cause has been before the court in two appeals and will be found reported in 142 N.C. 277, 55 S.E. 275, 7 L. R. A. (N S.) 684, and 145 N.C. 269, 59 S.E. 63. On both appeals the court granted a new trial for error in the conduct of the trial and form of the verdict. The subject-matter of the litigation is set forth in the appeal reported in 142 N.C 277, 55 S.E. 275, 7 L. R. A. (N. S.) 684, rendering it unnecessary to repeat it at this time. Reference may be had to the statement made by Mr. Justice Walker in 142 N.C. 277 55 S.E. 275, 7 L. R. A. (N. S.) 684. The cause was brought to trial for the third time before Judge Neal and a jury, when a verdict was rendered for plaintiff. Several exceptions were taken to his honor's rulings upon the admission and rejection of testimony, and to instructions to the jury. Those not abandoned in the brief are referred to in the opinion. From a judgment upon the verdict, the defendants appealed.

Where a general agent has entire management of his principal's affairs, so as, in effect, to be as much his guardian as the regularly appointed guardian of an infant, the presumption of fraud as matter of law arises from a conveyance from the principal to the agent for the latter's benefit, and it will be decisive of the issue in favor of the principal unless rebutted by evidence.

Bellamy & Bellamy, Rountree & Carr, and H. McClammy, for appellants.

John D. Bellamy, for appellee.

CONNOR J.

The issue submitted to the jury upon the pleadings presented the question whether the deed executed by plaintiff and her mother, Mrs. Mary E. Smith, was procured by fraud. The defendants claim the property as the widow and heirs of Roger Moore, the grantee. It is conceded that every person present at the execution of the deed, except plaintiff and Alcenia Reed, are dead. Plaintiff was introduced in her own behalf, and testified, without objection, that at the time she executed the deed she was sick-was very ill with typhoid pneumonia from February to April, 1885; the date of the deed being March 4, 1885. She was asked: "Where were you when you signed the paper?" To this she responded, over defendants' objection, "In the bed." Defendants excepted. The ground of the exception is that the testimony concerned a transaction between witness and the ancestor of defendants, the grantee in the deed. It was in regard to the matters in controversy entirely immaterial whether plaintiff was sitting on a chair or lying on a bed when she signed the deed. We do not perceive how the fact could throw the slightest light upon the issue or prejudice the defendants. While we do not think that the testimony comes within the spirit or the language of the statute (Revisal 1905, § 1631), as a communication or transaction with the deceased grantee, if it did, we should not deem its admission ground for granting a new trial. It is clearly nonprejudicial. The witness Alcenia Reed, who was present, testified without objection or contradiction that plaintiff was "in the bed" when she signed the deed. There was no controversy in regard to the fact. The exception cannot be sustained.

After the execution of the deed, plaintiff and her mother continued to reside upon the property until the latter died. Plaintiff remained there undisturbed by Col. Roger Moore during his life. Some time after his death, Henry Moore, sometimes referred to as Roger, one of the children of Col. Roger Moore, and one of the defendants, went to the home of the plaintiff and demanded possession, or that some arrangement in regard to the rent be made. After testifying in regard to the conversation between Henry Moore and herself, plaintiff was asked: "What claim did he set up to the property-what did he say to you, and what did you say to him?" She answered, over defendants' objection: "He said he had a deed for the property, and I told him, if he had, he got it by fraud." Defendants excepted. Of course, it would not have been competent as substantial evidence for plaintiff to say that defendants' ancestor procured the deed by fraud. That was the very question to be decided by the jury. She could not state, either as a fact or as an opinion, how the deed was obtained. We do not understand that the question was asked or permitted to be answered for any such purpose. It was clearly competent for her to give her version of the conversation between herself and Henry Moore, one of the defendants, when he claimed the property and demanded possession. It may have been proper for his honor to have stricken the answer from the record. It was saying nothing more than she had alleged in her complaint, and could not, in the light of the instruction given by his honor, upon the issue, have misled the jury. The case was made to depend largely upon the presumption of fraud arising out of the relation of the parties. His honor, in view of the opinion of the court on the former appeal, carefully excluded any testimony from plaintiff in regard to the transaction between Col. Roger Moore and herself. No reference was made in the conversation with Henry Moore to the circumstances attending the execution of the deed. It is the well-settled rule that, when one is in possession of land, his acts and declarations qualifying and explaining such possession are competent as part of the res gestae; that is, the fact of possession. Henry Moore was making claim that he owned the land, had a deed for it, demanding that she surrender possession. She simply said: "If you have a deed, you got it by fraud." We cannot think this language constitutes prejudicial error. The record contains an assignment of error directed to the testimony of plaintiff that she made a will. It is not referred to in the brief, and is therefore under the rule to be regarded as abandoned.

"Counsel for defendants offered to read in evidence the testimony given on the last trial by Mrs. Sarah J. Wilson upon the presentation to the court of a doctor's certificate that Mrs. Wilson was too unwell to attend court. That the evidence (stenographer's notes) was what the witness testified to at the last trial. The court was of the opinion that the evidence was not competent, even though it should be made to appear that the witness was sick, and also that the evidence offered was what she said at a former trial. It was excluded upon plaintiff's objection, and the defendants excepted." It would have been more satisfactory and better practice for his honor to have found the facts in regard to the physical condition of Mrs. Wilson-how long she had been sick, the character of her sickness, its probable duration, whether known to defendants, and, if so, whether is was practicable to have taken her deposition. This would have enabled him to pass upon the admissibility of her testimony given on the former trial, preserved by the stenographer's notes, as a question of law, and, upon appeal, we could have reviewed his conclusion. His finding of fact would have been final, as in cases of dying declarations, etc. To say that a witness is "sick" or "unable to attend court" is indefinite, and by no means determinative of the admissibility of her former testimony as original substantive evidence. The general rule excluding hearsay evidence is too well settled upon reasons too obvious to justify a discussion or citation of authority. Experience has demonstrated the necessity of some exceptions to the rule. Statutory provisions have been made for taking depositions and prescribing the conditions under which they may be substituted for oral evidence before the jury. The courts have, with caution, and, because of necessity, made other exceptions. Some of these are as well settled as the rule itself. The testimony of a witness who, since his examination, has died, become insane, or otherwise nonavailable, may be introduced upon a second trial, provided it has been preserved or notes taken thereof, or some person who heard the witness testify can reproduce it. There are other exceptions not necessary to be considered in this connection. Illustrations of the exceptions, so far as they have been applied by this court, will be found in Jones v. Ward, 48 N.C. 24, 64 Am. Dec. 590, where an attorney who took notes of the testimony on the first trial was permitted to testify to what the deceased witness swore. This ruling was followed in Wright v. Stowe, 49 N.C. 516; Ashe v. De Rossett, 50 N.C. 299, 72 Am. Dec. 552; Carpenter v. Tucker, 98 N.C. 316, 3 S.E. 831. In this class of exceptions the nonavailability of the witness is manifest; the only question being as to the mode of preserving and reproducing the testimony. The courts have also made an exception when the witness has gone beyond the jurisdiction of the court, without the procurement of the party offering his former evidence and he has no means of taking his deposition, or when the witness is sick, and probably still others not material to this discussion. In this last class of exceptions the party offering the testimony must, as a condition precedent to its admission, show the necessity for the exception based upon the nonavailability of the witness, either in person or by deposition, and that he has used due diligence in endeavoring to secure his attendance or take his deposition. "In case of disability, other than death, it has been held that the court must be satisfied that the party has used due diligence to obtain the personal attendance of the witness." 1 Elliott, Ev. § 517. We do not find that the question involved in this...