Strain v. Fitzgerald

• Decision Date: 30 May 1901
• Citation: 128 N.C. 396,38 S.E. 929
• Court: North Carolina Supreme Court
• Parties: STRAIN et al. v. FITZGERALD et al.

38 S.E. 929

128 N.C. 396

STRAIN et al.

v.FITZGERALD et al.

Supreme Court of North Carolina.

May 30, 1901.

SHERIFF'S DEED—LOSS—COPY—ADMISSIBILITY —SEAL—PROOF—PRESUMPTION. Defendant asserted title under a sheriffs deed, and averred that the original was lost, and offered in evidence the registration books, which contained a copy, which was not under seal, but which recited that it was given under the grantor's hand and seal. The copy was in the exact form prescribed by the legislature for sheriffs' deeds, which was defective in not requiring a seal. Held, that the recital in the copy was not sufficient to warrant the presumption that the original was under seal, and the copy was properly excluded. Clark and Montgomery, JJ., dissenting.

Appeal from superior court, Durham county; Councill, Judge.

Action by William Strain and others against R. B. Fitzgerald and others. From a judgment in favor of plaintiffs, defendants appeal. Affirmed.

Winston & Fuller, for appellants.

Manning & Foushee and Graham & Graham, for appellees.

FURCHES, C. J. This is an action of ejectment. The plaintiffs and defendants claim title under the same common source, —the plaintiffs as devisees, and the defendants under a sheriff's sale for taxes. It is admitted that the plaintiffs are the owners and entitled to recover unless the defendants have acquired the title of the testator, under whom plaintiffs claim, by reason of said sheriff's sale. On the trial the defendants offered In evidence the registration books of Durham county, which contained the form of a deed signed by the sheriff, but without a seal. This evidence was objected to by the plaintiffs, excluded by the court, and the defendants excepted; and this is the point presented by the appeal. The defendants allege as a reason for offering this copy or registry that they had lost the original. This is exactly the case of Patterson v. Galliher, 122 N. C. 511, 29 S. E. 773, except in that ease the original was offered, and not a copy, or the registration books. The case would be settled by that case, but for the fact that it is not the original deed that is offered. This fact, the defendants say, distinguishes this case from Patterson v. Galliher, and enables them to hold the land. The defendants contend that where the original is lest, and the copy on the registration books states that it was made "under the hand and seal" of the sheriff, it will be presumed that the original had a seal. And for thiscontention the defendants cite and rely on Heath v. Cotton Mills, 115 N. C. 202, 20 S. E. 309. But upon examination of that case it will be found that the original deed was offered in evidence on the trial, and it had a seal; and the only question presented by the appeal in that case was whether, the seal being omitted on the registration books, the registration was sufficient to give notice of the mortgage, and the court held that it was. And, whether that decision was right or not (and we do not say but what it was), we do not think it sustains the contention of the defendants in this case. The defendants also cite and rely on Quinnerly v. Quinnerly, 114 N. C. 145, 19 S. E. 99. But the question presented in that case is as to whether the certificate of probate was sufficient to authorize the registration. Nothing was left out by the register in that case, and the question was as to its sufficiency to authorize the registration. So it does not seem to us that that case sustains the defendants' contention of presumption. The defendants also cite Aycock v. Railroad Co., 89 N. C. 321, as authority for their contention. That was a case in which a copy of a grant from the state was offered in evidence, and it did not appear that the great seal of the state had been put on the registration books, nor was there any such scroll as indicated that it was on the grant. This grant was allowed in evidence. But its admission was put on special grounds and on special legislation, as the case will show. And the court, while it apparently sustains the court below upon the special grounds mentioned, states that it was immaterial whether it was admitted or not, as the case depended upon the question of possession. So it would hardly seem that that case was authority to sustain the contention of the defendants. A deed is an instrument of writing signed, sealed, and delivered. 2 Bl. Comm. *395. The seal is what distinguishes it from a parol or simple contract. Land can only be conveyed by deed; that is, an instrument of writing signed, sealed, and delivered. A paper in form a deed is not a deed without a seal. And to presume a seal is to presume the very matter at issue. There can be no presumption of a fact unless other facts are proved or admitted that form what is called in law a "chain" that necessarily leads the mind from the facts proved or admitted to the fact to be proved, —"a chain" of facts. One fact, if proved, does not form a chain of facts. In this case there is but one fact, as we understand it, that the defendants rely on to prove a seal that is to prove a deed; and that is that the paper on the registration books says, "Given under my hand and seal." But for this they would have nothing. And when it is considered that the paper they offer is in the exact words of the form prescribed by the legislature for sheriff's deeds in sales for taxes, which has no seal, this one fact loses any force it might be supposed to have. The error was originally committed by the legislature, and then by the sheriff, in following the form prescribed by the legislature. But defendants want the court to presume that the sheriff of Durham county knew more than the legislature. This we think may be called a violent presumption, in the sense that it violates the rule of presumptions and of common sense. To adopt the reasoning of the defendants would lead us into the adoption of a logic that cannot be...