Appeal
from superior court, Hyde county; J. F. GRAVES, Judge.
AVERY
J.
This
was a civil action tried before GRAVES, J. The complaints,
answers, and replications show the respective claims of the
parties. The plaintiffs introduced in evidence the following
deeds, viz.: (1) John W. Spencer to P. P. Spencer, dated
December 31, 1866; (2) P. P. Spencer to W. H. Spencer, dated
December 31, 1866; (3) W. H. Spencer to plaintiffs, dated
January 1, 1872. These deeds describe the share of John W.
Spencer in the lands sold by S. R. Sadler, clerk of the
superior court of Hyde county, and special commissioner, to
John M. Mann, February 6, 1872, by virtue of a decree of the
superior court of Hyde county, made in the case of J. W.
Lancaster and wife and others against P. P. Spencer and wife
and others, which was ascertained in said proceedings to
amount on the said day, February 6, 1872, to $637.31, and was
paid over by said clerk to N. Beckwith, attorney for Henry S.
Gibbs, under a decree of said court.
The
defendants introduced in evidence the records of said special
proceedings, and the summons docket of the superior court of
Hyde county, upon which the following entries appear:
"SPRING
TERM, 1882.
"J.
W. Lancaster and wife, Margaret, R. P. Wahab and wife,
Susan Annie, E. Wynne, minor, by her next friend and
guardian, N. Beckwith, vs. P. P. Spencer, and wife, Mary,
Samuel Blackwell and wife, Elizabeth, John W. Spencer, W.
H. Spencer, and H. S. Gibbs. Capias and summons issued to
defendants. Publication made, returnable October 14, 1871.
Answer filed.
Leave
to the plaintiffs to file replication to the answer of
defendant P. P. Spencer within the next thirty days, as of
this date.
"October
14, 1871, this cause coming on to be heard upon the summons,
complaint, and affidavit of plaintiffs, and it appearing that
the non-resident defendants have been brought in by
publication, and the answer and replication, and, being
heard, the court doth declare that the petitioners and
defendants are entitled as set forth in the complaint. The
court both further declare that actual partition cannot be
made without serious injury to the parties. It is therefore
ordered and decreed that the clerk of this court be appointed
commissioner to sell the lands mentioned in the complaint at
the court-house door, after advertisement for six weeks in
the New Berne Journal of Commerce, the court-house door, and
three or more public places in said county, on the 6th day of
January, 1872, one-half cash, balance on 12 months'
credit, and retain title until purchase money is paid."
"TO
FALL TERM, 1872.
"J.
W. Lancaster and wife and others vs. P. P. Spencer and wife
et als. Capias and summons issued. Executed on Spencer.
Publication made. Answer filed. Replication filed. Order of
sale issued. Sale made and confirmed. Decree filed 8th of
March, 1872. Title made."
"TO
SPRING TERM, 1871.
"Henry
S. Gibbs vs. John W. Spencer. Writ of attachment issued.
Publication made. Notice mailed to defendant at Arcola, III.
Order filed."
"FALL
TERM, 1871.
"H.
S. Gibbs vs. J. W. Spencer. Attachment issued. Publication
made for six successive weeks in the Raleigh Sentinel. Notice
mailed to defendant at Arcola, III. Order filed. Judgment for
plaintiffs, and the judgment docket of said court, upon which
the following entry appears:
"OCT.
2ND, 1871.
"H.
S. Gibbs vs. Jno. W. Spencer. Judgment in favor of
plaintiff for the sum of $304.27, with interest from Oct.
20th, 1867, till paid, and for costs of action. W. A.
MOORE, J. S. C.
"Ven.
ex. issued Nov. 17th 1871."
"A
venditioni exponas issued from said court, November 17,
1871, and a deed from John Bateman, coroner, to Henry S.
Gibbs, dated January 6, 1872."
On the
6th of January, 1872, Henry S. Gibbs, was sheriff of Hyde
county, and John Bateman, who is now dead, was coroner of
said county. The following agreement was made by counsel and
attorneys for plaintiffs and defendants, and filed in the
cause, to-wit:
"Whereas,
the defendants intended to establish, if possible, certain
alleged proceedings by attachment in a suit wherein H. S.
Gibbs was plaintiff and Jno. W. Spencer was defendant,
which proceedings have been lost, as alleged, for
convenience sake it is agreed that the defendants may
establish the said alleged lost papers in this action on
trial without resort to a separate action, if defendants
can establish the same by competent evidence; all objection
to the competency and relevancy of such evidence being
reserved."
It is
admitted that the clerk of this court has searched diligently
for the records and papers in the said causes of J. W.
Lancaster and wife and othersvs. P. P. Spencer and others,
and H. S. Gibbs vs. J. W. Spencer, and could find none except
those set out in this case. The defendants offered to show in
evidence that the several conveyances introduced by the
plaintiffs to show title in themselves to the share of J. W.
Spencer were made for the purpose of defrauding creditors,
and were not made at the time they purported to have been
made. His honor held that the testimony was irrelevant, and
excluded it, and that there was no evidence of any release,
as set up in the pleadings by the defendants.
The
plaintiffs introduced evidence tending to show that the order
of sale in the case of Lancaster and others vs. P. P. Spencer
was made by and in the
handwriting of S. R. Sadler, clerk, etc., and that there was
no entry upon the civil issue docket of Hyde county from
spring term, 1871, to fall term, 1872, of the case of J. W.
Lancaster and others vs. Spencer and others. They also
offered the docket marked "Civil Issue Docket," and
the case did not appear therein. The plaintiffs, upon these
facts, asked the judge to charge the jury that, if they
believed the evidence, the plaintiffs were entitled to
recover, which request was refused, and plaintiffs excepted.
His honor intimated that he would charge the jury that, upon
the evidence introduced, the plaintiffs were not entitled to
recover. Upon this instruction the plaintiffs submitted to a
nonsuit, and appealed.
The
portions of the record and the attachment sued out by H. S.
Gibbs of the case of Lancaster vs. Spencer, (besides the
entries, etc., set forth in the statement of the case on
appeal,) put in evidence, are as follows:
"SUMMONS.
"You
are commanded to summon P. P. Spencer and wife, Mary,
Samuel Blackwell and wife, Elizabeth, Wm. H. Spencer, John
W. Sparrow, and Henry S. Gibbs, the defendants above named,
if they be found within your county, to appear at the
office of the clerk of the superior court for the county of
Hyde on the 14th day of October, 1871, after the service of
this summons on him, exclusive of the day of such service,
and answer the complaint, a copy of which will be deposited
in the office of the clerk of the superior court for Hyde
county, within ten days from the date of this summons; and
let him take notice that, if he fails to answer the said
complaint within that time, the plaintiff will apply to the
court for the relief demanded in the complaint.
"Hereof
fail not, and of this summons make due return.
"Given
under my hand and seal of said court, this 12th day of
August, 1871. SAMUEL R. SADLER,
"Cl'k
of the Superior Court, Hyde County."
"Served
by delivering a copy to Peter P. Spencer, Sept. 5th, 1871.
"H.
S. GIBBS, Sheriff."
The
plaintiff, complaining, alleges:
"(1)
That they, together with the defendants, are seised in
fee-simple as tenants in common of the following described
tracts of land lying in the county of Hyde: One tract known
as the 'Henry S. Spencer Farm,' adjoining the lands
of John S. Northern and George L. Credle, on the north, the
lands of Wilson H. Lucas, on the east, the lands of John M
Mann and the heirs of Frederick S. Roper on the south, and
the Lake Slash on the west,--more properly described by deed
from N. Beckwith, clerk and master, to the heirs of Henry S.
Spencer, dated the 28th of October, 1867, recorded in Book
11, page 36; one tract lying on Middle creek, known as the
'James Adams' Lot,' adjoining the William S. Cox,
and a gut of the creek, containing one-half acre, on which is
a store and warehouse; one tract lying in the South Lake
swamp, adjoining the lands of William Watson's heirs,
containing 33 acres, more or less.
"(2)
They show that Henry S. Spencer died on or about the year
1852 or 1853, leaving a last will and testament, and
appointing one John Blackwell as his executor, which was duly
proven and qualified to; that said Blackwell, by virtue of a
decree of the court of equity of Hyde county, sold the
plantation above described as No. 1 to Peter P. Spencer
taking his bonds, and a mortgage thereon, to secure the
purchase money; that said mortgage was foreclosed in the year
1867 by a decree of the court of equity for a settlement of
the estate of Henry S. Spencer and a distribution thereof,
according to the provisions of the will; that said...
