Thomas v. Kelly

• Decision Date: 31 January 1876
• Citation: 74 N.C. 416
• Parties: M. C. THOMAS v. ABNER KELLY.
• Court: North Carolina Supreme Court

74 N.C. 416

M. C. THOMAS

v.ABNER KELLY.

Supreme Court of North Carolina.

January Term, 1876.

It is competent for a plaintiff, as witness for himself, to testify to a conversation had with a certain person deceased, whose representative is not a party to the suit.

CIVIL ACTION to recover the amount due on a bond, tried before Buxton J. at Spring Term, 1874, of MOORE Superior Court.

The bond, (or note under seal,) was executed by the defendant and others, was payable jointly and severally to H. B. Judd or order, on the 25th December, 1861, in the sum of three hundred dollars. There were several credits entered on the note, and it was not endorsed by the payer.

The defense relied on was that the plaintiff was not the owner of the note.

The plaintiff, for himself testified, that the note was his property; and explained his possession of the same on his cross-examination, thus: That his uncle, Henderson Judd, now dead, was the owner of the note. In 1871, the year he died, he handed the note to the plaintiff and told him to take the note to pay a debt out of it, for which he was liable as surety for Dr. Judd, to a daughter of the defendant, in the sum of sixty dollars, and the note should be mine. He took the note and saw the defendant in order to effect the arrangement through him. This was done by the defendant's executing his individual note to his daughter for sixty dollars and receiving from her the note upon which his uncle was liable as surety. The defendant surrendered the same to him and he gave him credit for the amount upon the note now in suit. This credit is endorsed $60.00, 4th February, 1871. Plaintiff further stated, that he was not to have the credit put on, and then to return the note; it was to be his.

For the defendant Col. A. A. F. Seawell was called, who stated that Henderson Judd died in July, 1871; that he was unmarried, but there were some colored people about him, whom he recognized as his children. On the 29th of March, 1871, at his request, the witness wrote for him a deed of trust, which he executed, and in which he appointed the witness and another person, trustees of the property therein conveyed, for the benefit of these colored children. The property conveyed in trust is thus described after naming and including his lands: “Also all the stock of horses and mules, cattle and hogs, and all the personal property of every description, which I, the said Henderson Judd, now own or may hereafter become the owner of, up to the day and time of my death.”

This witness further stated, that while he was engaged in writing the deed, Judd told him, that he wanted him, the witness, to get from Thomas, the plaintiff, this note and collect it, and if he was living to pay it over to himself, and if he was not living, to these colored children of his. Witness told Judd, that he thought that he, Judd had better get the note from Thomas. Judd said he would. Witness did not apply for the note until after the death of Judd.

The plaintiff being re-called by his counsel, was asked if he still persisted in his assertion notwithstanding the evidence offered by the defendant that the note belonged to him. He replied that he did, and that the note was his property.

Upon his cross-examination, the plaintiff stated that he had never given a cent for the note; and upon being asked whether he had any other reason to give for claiming the note, besides what he had stated on his first examination, said that he had: and was proceeding to state another conversation, which he had with his uncle in the month of April, 1871, and which was after the deed of trust was executed. To this conversation as evideace, the defendant objected, for the reason, because it was between the plaintiff himself and a person deceased.

His Honor, upon consideration, admitted the evidence, partly because he was of opinion, that the case did not strictly come within the prohibition of sec. 343, C. C. P., as the representative of the dead man was not a party to this suit; and it was...