Tuttle v. Rainey

• Decision Date: 05 December 1887
• Citation: 4 S.E. 475,98 N.C. 513
• Parties: TUTTLE et al. v. RAINEY et al.
• Court: North Carolina Supreme Court

4 S.E. 475

98 N.C. 513

TUTTLE et al. v. RAINEY et al.

Supreme Court of North Carolina

December 5, 1887

Appeal from superior court, Forsyth county; BOYKIN, Judge.

E. H Rainey et al. sued, in the Forsyth superior court, Thomas Rainey et al., claiming that one J. P. Rainey, deceased, was the owner of certain land mentioned in the pleadings, and that he held the same under a deed from the defendant Thomas Rainey, and that the deed was lost or in the possession of Virgil Rainey, one of the defendants, the administrator of James P. Rainey, and by him suppressed, and asked for its production or re-establishment in order to perfect the title. The defendants denied the execution of the deed, and alleged that Thomas Rainey was the owner. The verdict was in favor of plaintiffs. A new trial was refused, and defendants appealed.

In an action to re-establish an unrecorded deed, alleged to have been lost, the court charged that, if the jury believed that the grantee had the deed in his possession, the law, under all the circumstances, presumed a delivery, from that possession, but plaintiffs must establish this by clear proof. Held, that the instruction required the presumption to be inferred from proof of possession, and did not declare delivery as a presumption of law from the possession.

Watson & Buxton and Glenn & Glenn, for plaintiffs.

J. T Morehead, for defendants.

SMITH C.J.

James P. Rainey died intestate in November, 1884, in possession of a tract of land in Forsyth county, without issue, and the parties to this action are his heirs at law. The complaint states that the land belonged to one Thomas Rainey, a brother of the intestate, and that he conveyed it to the latter by a deed in form to pass an estate in fee, which has not been registered, and is lost or destroyed, if not suppressed, by the defendant Virgil Rainey, into whose hands as administrator the effects of the deceased passed. The object of the action is to procure its production, if in existence or, if not, to re-establish the deed in order to perfect the title derived under it. There was a single issue presented to the jury: "Did the defendant, Thomas Rainey, prior to the death of James P. Rainey, execute and deliver to him a deed in fee-simple to the lands in controversy?" To this inquiry the jury respond in the affirmative. On the trial the plaintiff E. A. Rainey testified that in April, 1884, he saw a deed for the land from his uncle Thomas Rainey to the intestate, and read it. It was a conveyance in fee-simple recited a consideration of $6,400, and bore the signature of said Thomas Rainey; that he knew the handwriting of his uncle, though he had never seen him write; that he lived in New York, and witness had seen many letters from him to the father of witness, about family matters and family business, concerning which no one else was familiar; that almost every day came newspapers to his father directed in the same hand, and for years a photograph of his uncle was hanging on the wall of of the sitting-room with an under-written message of presentation, concluding with the words, "From your affectionate brother Thomas Rainey." Objection was made to the witness speaking of the handwriting, on the ground that his acquaintance with it had not been sufficiently shown, but it was overruled, and the testimony received and exception to the ruling noted. The witness further...