Smith v. Moore
| Decision Date | 16 October 1906 |
| Citation | 55 S.E. 275,142 N.C. 277 |
| Parties | SMITH v. MOORE. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, New Hanover County; W. R. Allen, Judge.
Action by Louise B. Smith against Susan E. Moore and others. From a judgment in favor of plaintiff, defendant Susan E. Moore appeals. Reversed, and new trial granted.
The object of the action is to set aside a deed for a lot in the city of Wilmington at the northeast corner of Second and Red Cross streets which was executed to Mr. Moore, the husband of the defendant Susan E. Moore, and the father of her codefendants, by Mrs. Mary E. Smith and her daughter, the plaintiff, and which it is alleged was obtained by fraud. The lot was devised in 1862 by Samuel Frink, the father of Mrs Mary E. Smith and grandfather of the plaintiff, to his son Lorenzo Frink and Henry Nutt and the survivor of them, in trust for the sole and separate use of his daughter, Mary E Smith, for and during her life, and at her death to such of her children as should then be living and the issue of such as might be dead, the issue to take per stirpes. Mr. Nutt died in 1881, and on February 27, 1885, Lorenzo Frink conveyed the said lot "to Mary E. Smith for life with remainder to Louise B. Smith in fee, reciting in the deed that the lot had been devised to Mary E. Smith for her sole and separate use, so that it would not become liable for the debts of her then husband, that the latter had since died leaving his widow, Mary E. Smith, who was well advanced in years, and an only child, Louise B. Smith, his other children being dead without issue surviving them. He had three children, Rebecca Smith (who was the first wife of Mr. Moore and died in 1869 leaving one child who died in 1884), the plaintiff, and another who died without having married. Mrs Mary E. Smith died intestate in April, 1895, and Mr. Moore died in 1900. The plaintiff attacked the deed from her mother and herself to Mr. Moore upon the ground that, at the time it was executed, his attorney stated to her in the presence of her mother and Mr. Moore that it was a will; that she was ill at the time and confined to her bed, and that she signed the deed thinking that it was a will and she did not know it was a deed until after Mr. Moore's death. There was evidence in corroboration of the plaintiff's testimony, consisting of statements to the same effect made afterwards by her to other persons. It was admitted that Mr. Moore was "the agent, confidential friend and adviser of the plaintiff and her mother." It was also in evidence that the plaintiff and her mother remained in possession of the premises conveyed by the deed until the mother's death, and that after her death the plaintiff has continued in possession to the present time. The deed to Mr. Moore was executed March 3, 1885, and registered January 23, 1886. The defendants introduced in evidence a paper writing in the form of a lease from Mr. Moore to Mary E. Smith and the plaintiff, dated March 15, 1885, by which he covenanted and agreed that they should occupy and possess the said lot "for and during the term of their joint lives, and after the death of either of them, then for the term of the natural life of the survivor of them, yielding and paying therefor annually on the 15th day of March in each and every year during the said term one cent as rent." The plaintiff put in evidence a letter from Mrs. Smith to Mrs. Moore's attorney, dated March 2, 1885, in which she expressed the greatest affection and esteem for her son-in-law, Mr. Moore, and referred in strong terms to his many kindnesses and to his sympathy for her, and further, to the fact that he had paid her taxes and insurance for 20 years, repaired her house, and in other ways assisted her in time of need. She states it to be her first and greatest wish, if she should outlive her child (the plaintiff), that the house and lot should "descend" to him and his children, and she evinced the greatest anxiety that he should own the lot free from any claims against her. Then she states that she gives to him all of her household furniture, books, pictures, and silver to dispose of as he thinks best. The plaintiff stated that this letter was introduced to show that the attorney was not authorized to draw a deed but a will. The defendant put in evidence the deposition of Mrs. Boudinot, and proposed to prove by her that Mrs. Smith, who was her sister, had stated to her that she had executed the deed to Mr. Moore, and gave substantially the same reasons for so doing as those set forth in the letter to the attorney. The testimony was excluded by the court, and the defendants excepted. On cross-examination she testified that Mrs. Smith had told her the deed had been executed, giving in detail what was said by her about the deed. She also stated that the plaintiff had told her "that she had signed a deed and that she and her mother had fixed it all up." The defendant objected to the testimony of the plaintiff as to what was said to her by his attorney in the presence of Mr. Moore at the house, and also as to what was done at that time. The objection was overruled, and the defendants again excepted. It was shown that the attorney had died before this action was commenced. The court charged the jury that, if Mr. Moore was the agent of the plaintiff and her mother and attended to their business and they were in the habit of relying on him for advice, this would constitute such a confidential relation between them that from it the law raised a presumption of fraud, which would be evidence of fraud to be considered by the jury, and the burden would then rest on the defendants to show that the transaction was fair and honest, and if they had failed to do so the jury should answer the issue "Yes"; that this presumption was rebuttable and if upon all the evidence the jury found that the transaction was fair and honest, they should answer the issue "No"; that the letter of March 2, 1885, did not authorize the attorney to draw a deed in fee simple and that the listing of the property for taxes by Mr. Moore in the name of Mrs. Smith and after her death in the name of her heirs, the failure to register the deed from March 3, 1885, to January 23, 1886, and the continued possession of the lot by the plaintiff, were circumstances to be considered by the jury. The defendants objected to that part of the charge as to the nonregistration of the deed. The court further charged that if the jury should find the facts to be those related by the plaintiff in her testimony as to what occurred at the time the deed was executed, the transaction would be fraudulent and they should answer the issue "Yes," but if they did not find by the greater weight of the evidence that the execution of the deed was procured by fraud they should answer the issue "No." The jury for their verdict found that the deed was procured by fraud, and, judgment having been entered thereon, the defendant appealed, and specially assigned as errors the several rulings and the instructions of the court to which exceptions had been taken.
Rountree & Carr and Bellamy & Bellamy, for appellant.
John D. Bellamy & Son and E. K. Bryan, for appellee.
WALKER J. (after stating the case).
The testimony of the plaintiff as to what was said and done when Mr. Moore and his attorney were at her home for the purpose of having the deed executed was incompetent, because the witness, under the admitted circumstances of this case, was disqualified by the statute to speak of that matter, and not because the facts related were not pertinent to the inquiry. It is a principle of the common law, and one of its favorite maxims, as well as an indispensable requirement of justice that they who are to decide shall hear both sides, giving the one an equal opportunity with the other of knowing what is urged against him and of making good his claim or defense, if he has any. This rule, so essential to the fair administration of the law, was embodied in the maxim, ""No man should be condemned unheard" (audi alteram partem). At common law, no party to an action or person having an interest in the event of the same, was permitted to testify in his own behalf, with certain well-defined exceptions. The Legislature, deeming this exclusion to be founded upon an insufficient reason and to be unjust in itself, changed the law in this respect and admitted interested parties as witnesses subject to the wise provision that no such party should be allowed to testify in his own behalf against the other party representing a deceased person as to a transaction or communication between him and such deceased person. Code, § § 589, 590; Revisal 1905, § § 1629, 1631. So we see that the ancient principle of the law, to which we have referred, has been preserved in this enactment, and one of the parties to the transaction will not be heard if the other is dead and cannot, therefore, be called in reply. McCanless v. Reynolds, 74 N.C. 301. This construction was approved in Pepper v. Broughton, 80 N.C. 251, and the defendant forbidden, as a witness, to testify that he had not refused to speak to Lougee, his father-in-law, who was then deceased, although the plaintiff introduced testimony showing the mere declaration of Lougee that he had, and although both parties claimed under the deceased person. ...
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