Strain v. Fitzgerald

• Decision Date: 10 June 1902
• Citation: 130 N.C. 600,41 S.E. 872
• Court: North Carolina Supreme Court
• Parties: STRAIN v. FITZGERALD et al.

41 S.E. 872

130 N.C. 600

STRAIN

v.FITZGERALD et al.

Supreme Court of North Carolina.

June 10, 1902.

LOST DEED—ABSENCE OF SEAL—PAROL PROOF OF SEALING.

Where plaintiff asserted title under a sheriff's deed, averring the original lost, and offered the registration books containing a copy of the deed which was without a seal, but recited that it was given under the grantor's hand and seal, it was error not to admit parol testimony that the deed had a seal. Douglas, J., dissenting.

On rehearing. Petition allowed. For former opinion, see 38 S. E. 929.

CLARK, J. This is a petition to rehear this case, reported 128 N. C. 396, 38 S. E. 929, for that the court inadvertently failed to pass upon the exception that the court below excluded competent parol evidence which was offered to prove that there was in fact a seal to the sheriff's deed. If that had been shown, the most critical examination could not have distinguished this case from Heath v. Cotton Mills, 115 N. C. 202, 20 S. E. 369. In that case it was held that where the record represents on its face, as by recitals or otherwise, that the instrument was sealed, and in fact it was duly sealed, the record is valid and sufficient as notice, though it does not show a copy of the seal or any device representing it. Todd v. Institution, 118 N. Y. 347, 23 N. E. 299, is also "on all fours" with this case. There the original tax deed had been lost and the record showed no seal, but the court held that as one witness swore that there was a seal on the original, and the record of the deed recited, "Witness my hand and seal, " there was evidence to go to the jury upon the question. Somewhat to same purport are Carpenter v. Dexter, 75 U. S. 513, 19 L. Ed. 426; Starkweather v. Martin, 28 Mich. 471; Geary v. City of Kansas, 61 Mo. 379; Norfleet v. Russell, 64 Mo. 177; Long v. Smelting Co., 68 Mo. 422; Hammond v. Gordon, 93 Mo. 224, 6 S. W. 93; Flowery Min. Co. v. North Bonanza Min. Co., 16 Nev. 302; Jones v. Martin, 16 Cal. 165; Abb. Tr. Ev. 483. In Patterson v. Galliher, 122 N. C. 511, 29 S. E. 773, it appeared that there was in fact no seal. In-excluding the evidence here offered to show that in fact there was a seal, there was error.

Petition allowed and new trial.

DOUGLAS, J., dissenting.