Tredwell v. Graham

• Decision Date: 28 February 1883
• Citation: 88 N.C. 208
• Court: North Carolina Supreme Court
• Parties: TREDWELL, Mallory & King v. A. W. GRAHAM and others.

88 N.C. 208

TREDWELL, Mallory & King

v.A. W. GRAHAM and others.

Supreme Court of North Carolina.

February Term, 1883.

CIVIL ACTION tried at Spring Term, 1883, of DURHAM Superior Court, before Gilmer, J.

Verdict and judgment for defendants; appeal by plaintiffs.

Mr. W. W. Fuller, for plaintiffs .

Mr. J. W. Graham, for defendants .

RUFFIN, J.

This action is brought for the recovery of the possession of land.

The plaintiffs, Tredwell, Mallory & King, are partners, and claim title under two deeds--the one from Rufus Bobbitt to his son William A., dated October 14th, 1879, and the other from the said William A. to themselves, dated July 31st, 1880.

The defendant, Graham, claims by virtue of a purchase at execution sale made in March, 1880, under judgments obtained against the said Rufus Bobbitt in Granville county, and docketed in Orange county on the 8th day of November, 1879.

The execution of the several deeds introduced was not denied, but the case was made to turn upon the bona fides of the deed from Rufus Bobbitt to his said son, there being evidence offered going to show his insolvency at the time of its execution.

The only issues submitted were: 1. Was the deed of Rufus Bobbitt to W. A. Bobbitt fraudulent? which was responded to by the jury in the affirmative. 2. Did the plaintiffs have notice of such fraud before taking their deed from W. A. Bobbitt? which was answered in the negative.

The case is brought to this court upon the following exceptions taken for the plaintiffs:

1. The deposition of W. S. Mallory, who is a member of the firm, and a plaintiff in the action, had been taken at the instance of the plaintiffs, and in response to a question propounded by them, the defendants not being present either in person or by an attorney, he had stated that his firm had a considerable claim upon Rufus Bobbitt and his son William A., and learning that they were largely involved, he was sent, in the summer of 1880, to see them in regard to it; that he found the father at home, who informed him of his inability to pay this and his other debts, but expressed a wish, growing out of the kindness hitherto shown him by the plaintiffs, to secure them in any way that he could; that his property, meaning that in dispute, stood in the name of his son William A., who was then in Virginia, but that he would give the witness a letter to take to him, instructing him to give the plaintiffs a deed for the land; that thereupon, at the request of the said Rufus, the witness wrote a deed purporting to convey the land from the son William A. to the plaintiffs, using as a form the deed which the said Rufus then had in his possession, dated the 14th October, 1879, and by which the land was attempted to be conveyed to his said son; that the witness then took the deed so prepared, together with a letter from the father, to Virginia, where the same was executed by the son. Other matters were referred to in the deposition, and in reading it to the jury the plaintiffs read only such portions as related to the same, and omitted that part which had reference to the interview between the witness and the elder Bobbitt. The defendant then offered to read that part of the deposition, and was permitted to do so, though objection was made by the plaintiffs and though it was shown that Rufus Bobbitt had died before it had been taken, and to this the plaintiffs excepted.

The court can perceive no ground upon which this exception can be sustained. Conceding that it was proper for the plaintiffs to omit reading this portion of the deposition, and regarding only the question as to the competency of the testimony as offered by the defendant, it does not seem possible to doubt the correctness of His Honor's ruling with regard to it. A party's own declarations and admissions, if pertinent, are always evidence against him, without regard to their subject matter, and if made in the presence and at the instance of others having a like interest with himself, they are likewise evidence against them; and the fact that they were put in the form of sworn answers to interrogatories can neither lessen their weight nor affect the question of their admissibility. Nor does the case come under section 343 of the Code, so as to be excluded as being a transaction with a deceased person. As is said in Weinstein v. Patrick, 75 N. C., 344, notwithstanding that statute, a party may be called to testify touching such a transaction by the opposite party and when against his own interest, and if this be so, then his declarations under similar circumstances may be used against him. Why should it not be so? since in such a case it is impossible that the mischief can occur, which it is the policy of the statute to avoid. The plaintiffs, speaking through their partner (Mallory), may well be trusted to testify as to a transaction with their deceased assignor, as they stand in his shoes; and their interests, derived from him, the law deems, independently of any statutory restraints,...