Smith v. Turner
| Decision Date | 30 June 1847 |
| Citation | 47 Am.Dec. 353,39 N.C. 433,4 Ired.Eq. 433 |
| Parties | MARY R. SMITH v. JOSIAH TURNER et al. |
| Court | North Carolina Supreme Court |
A Court of Equity does not like to entertain bills to perpetuate testimony, except in cases of plain necessity.
If the object of a bill is to perpetuate the testimony of witnesses to a deed respecting lands, the deed must be properly described, and the names of the witnesses, who are to prove it, be set forth, and also the facts, to which they are to give evidence, be specially stated.
Such a bill must shew the interest of the plaintiff in the subject, and, in stating it, should, though succinctly, set it forth plainly and with convenient certainty as to the material facts, so that, on the bill itself, some certain interest in the plaintiff shall appear; which, indeed, is sufficient, however minute the interest may be.
In a bill of this kind a Court of Equity only assists a Court of law by preserving testimony, where the plaintiff's right is purely a legal one.
But a Court of Equity will not entertain a bill to perpetuate testimony, touching a subject of its own jurisdiction, because the party can always, though in possession, file a bill for relief, and the Court can, in its discretion, make the proper orders upon an emergency, for speeding the taking of the testimony of old, infirm, or removing witnesses.
Appeal from an interlocutory order of the Court of Equity of Orange County, at the Fall Term, 1846, his Honor Judge BATTLE presiding.
The bill states, “that, by deed bearing date the 10th day of December, 1840, J. S. Smith, the father of the plaintiff, did convey and assign to her, the plaintiff, in remainder, certain lands lying on Price's creek in Orange county, which will more fully appear, reference being had to the said deed, registered in book D, page 396, in the Register's office of Orange; that the land designated in said deed, as the Price's creek tract, was once owned by Francis Jones, the grand-father of the plaintiff; and that, by deed bearing date March 19th, 1819, Francis Jones conveyed to J. S. Smith, his son in-law, the said tract; that by the said deed, bearing date the 19th day of January, 1825, the said Francis Jones conveyed to J. S. Smith other lands, called the Park's Neck lands, for the sum of $7,000, and also, upon an express agreement between the said parties, that the said Smith should reconvey to the said Francis Jones the lands on Price's creek; that, as she is informed, and believes, a deed was accordingly executed by her father to the said Francis Jones for the said lands, bearing even date with that made by Francis Jones to him for the Park's Neck lands, to wit, the 19th of January, 1825; that this deed, as executed, was delivered to the said Jones, and was seen at the time of delivery or afterwards, by sundry persons, some of whom are advanced in years, others have left the State, and recently departed this life; that the said deed remained in possession of Francis Jones many years, but, as your oratrix is informed and believes, was taken from his possession by Ruffin Jones, his only son, and was by him destroyed; and that the said Ruffin Jones died many years since.
Further complaining your oratrix shews, that her said grand-father Jones avowed his intention, after his reception of said deed, of giving said lands on Price's creek to your oratrix at his death; and she further shews, that in accordance with that purpose, which was frequently declared, he made and published his last will in writing in the year 1840, in and by which, among other things, he did devise to your oratrix the said lands, directing his executor in what manner his said purpose should be carried into effect; that some months after the publication of the said will, and in the life-time of the said Francis Jones, her father, not only in obedience to the direction and devise in said will contained, but also in compliance with a promise long before made by him to the said Jones, did convey by deed, lands on Price's creek, in remainder to your oratrix, reserving life estates therein, as well to himself as to his wife, the mother of your oratrix: all of which will appear by reference to the said deed, registered in book D, as heretofore stated; that your oratrix accepted the said deed at the time of its execution, and because, as she is advised, entitled absolutely to a vested remainder in said lands; that in the year 1844, her grand-father Jones departed this life, leaving his said will unaltered and unrevoked, and that said will was admitted to probate at May Sessions of Orange Court of Pleas and Quarter Sessions 1844, and her father, J. S. Smith, the executor therein named, was qualified as such (a certified copy of which she hath ready to produce when required by the Court,) and took upon himself the burden of executing the same; that on the 21st day of November, 1845, she purchased of her said father his life estate in the Price's creek lands, at and for the price of $1,000, and he executed and delivered to her a deed for the said lands, bearing date on that day, which will more fully appear by reference to the same as registered in book D, page 398, in the Register's office of Orange. Your oratrix shews that she has become the owner in remainder, of the said land on Price's creek, and also of the life estate of her father in the same, and is in possession of said land under and by virtue of the said several conveyances, subject, nevertheless, to the life estate of her mother in the event of her surviving the father of your oratrix; and your oratrix had well hoped that she would have enjoyed her said estates quietly, and without interruption or doubt as to her titles to the same.”
The bill then states, that the defendant, Turner, “although her deed had been registered as aforesaid, and thus he had notice of her said title,” yet had an execution against Turner and J. S. Smith levied on said lands as the property of J. S. Smith, and at a sale by the sheriff he, Turner, became the purchaser, and had received or would receive the sheriff's deed therefor.”
The bill then proceeds, “that she, being thus in possession of said lands, has no means of having her title to said lands established, and that, as the witnesses to the existence of the deed from Dr. J. S. Smith to Francis Jones, re-conveying the lands in question, are some of them advanced in years, and others have left the State, and that one of them in particular hath recently died, and that said deed is lost or destroyed, she hath good reason to fear that, hereafter, in the event of the death of the said witnesses, it would be impossible to establish her title to the said lands: that from the course taken by the said Turner, she doth believe that, perhaps at some distant day, he means to institute proceedings in regard to these lands, which may be injurious to her, if the testimony of the said witnesses cannot now be perpetuated, the more especially as she has no means of trying the question of title by any act of hers, and there is no reasonable probability that there will be any immediate action by others to try the said question; that she is informed that the said Turner hath charged that your oratrix hath no good title to the said lands; that no deed was ever made by the said Dr. J. S. Smith to Francis Jones, re-conveying the said lands, and that the said lands therefore were not the property of the said Jones or conveyed by his will to your oratrix.” The prayer is, “that your oratrix may be at liberty to examine her said witnesses, touching said deed, lost or destroyed as aforesaid, and touching her title to the said lands in every particular, so that their testimony may be perpetuated and preserved;” and for process of subpœna commanding Turner to appear and answer, “and to stand to, abide by, and perform such decree as to your Honor may seem meet.”
The defendant answered, and admits that he purchased the same land under an execution against J. S. Smith, which the plaintiff claims, and that he meant to contest her title, and states that he had already commenced an action of ejectment against her. The answer takes several objections to the bill for certain imputed defects, in not being supported by any affidavit, and in having a prayer for relief, and in various other particulars.
At the first term, the Court of Equity “on the motion of the...
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