Ward v. Saunders

• Decision Date: 30 June 1846
• Citation: Ward v. Saunders, 6 Ired. 382, 28 N.C. 382 (N.C. 1846)
• Court: North Carolina Supreme Court
• Parties: DEN ON DEMISE OF HIRAM WARD v. JOHN SAUNDERS.

6 Ired. 382

28 N.C. 382

DEN ON DEMISE OF HIRAM WARD

v.JOHN SAUNDERS.

Supreme Court of North Carolina.

June Term, 1846.

In the case of the return of the levy of a justice's execution on land to the County Court, though notice is directed by law to be given to the defendant, no evidence is required of that notice, but the record of the County Court, ordering the venditioni exponas.

The description in the return of a constable of a levy on land, need not literally comply with the act of Assembly in such cases, its requirements being substantially, that the land should be sufficiently distinguished and identified.

When the original records are offered in evidence in the Court to which they belong, they should be received, because the Court is presumed in law to know its own proceedings; but in another Court, the proper evidence is a copy of the record, authenticated by the seal of the Court.

In the case of a return, by a justice, of a levy on land, with the corresponding papers, it is not necessary that it should appear, by a distinct certificate of the Clerk, that these papers have been enrolled in bound books, as required by the act of Assembly. The ordinary copy of the record, certified by the Clerk under the seal of the Court, is sufficient evldence of the enrolment.

The declarations of a person, who has executed a deed, at a period subsequent to such execution, are not evidence against the grantee. But the declarations of a grantor, between the time when the deed falsely bears date, and the time when it was actually executed, are evidence as to the fraudulent intent of the parties.

The cases of Burke v. Elliott, 4 Ired. 355, Smith v. Low, 2 Ired. 457, and Blanchard v. Blanchard, 3 Ired. 105, cited and approved.

Appeal from the Superior Court of Law of Davidson County, at the Spring Term, 1846, his Honor Judge SETTLE presiding.

This was an action of ejectment for a tract of land, which both parties claimed under Isham Doby; the lessor of the plaintiff under a deed from Doby to him, bearing date the 23d of April 1840; and the defendant, under a purchase at a sale under execution against Doby, and a sheriff's deed the 2d of November 1841, as hereafter mentioned.

The defendant alleged, that the conveyance to the lessor of the plaintiff, (who was the brother-in-law of Doby and did not appear to have paid anything for the land,) was ante-dated, and was fraudulent as against Doby's creditors, and void. The defendant then gave in evidence the records in four cases in the County Court of Davidson, some at the instance of the defendant, and others at the instance of other persons, against Doby; from which it appeared, that, in February and April 1841, four warrants had been commenced against him, on which judgments were rendered and executions issued on the 4th of June thereafter, on each of which the constable returned--“No goods or chattels to be found: levied on the lands and tenements of Isham Doby, adjoining the land of Allen Newsom, Claiborne Newsom and others, and containing 190 acres.” Upon that return, judgments were rendered and orders for sale made in the several cases at August term 1841; and thereupon, writs of venditioni exponas were issued, under which the sale was made to the defendant. The plaintiff's counsel objected to receiving the records in evidence, because it did not appear that the proceedings had been recorded in a well-bound book, kept for that purpose. The plaintiff then produced the original warrants, judgments, justices' executions, and constables' return, with the endorsements thereon, “Recorded in minute docket, February 1843,” in the hand-writing of the Clerk of the County Court. The counsel for the plaintiff still objected to the evidence, and insisted that it ought to appear, by the minutes of the County Court, that the papers had been recorded therein. But the Court received the evidence. The defendant then proved by one Smith, who is one of the subscribing witnesses to the deed from Doby to Ward, that it was not executed on the 23d of April 1840, as it purports on its face to have been; and that, although the witness could not recollect precisely when it was executed, it was certainly not before September in the year 1840, as the witness knew from the fact, that he attested the deed after he came to reside in Davidson County, which was not until September 1840; and the defendant proved by other witnesses, that the deed from Doby to the lessor of the plaintiff was not made until April 1841. And thereupon the defendant offered to prove declarations made by Doby between April 1840 and April 1841, that he was, at the time of making such declarations, the owner of the premises in dispute, but that he intended to convey them to the lessor of the plaintiff, in order to defeat the defendant and his other creditors aforesaid of their debts, and in trust for himself. To the evidence thus offered, the counsel for the plaintiff objected, for the reason, that it would tend to invalidate the deed made by Doby himself, which purported to be made on the 23d April 1840, and therefore ought not to be affected by his declarations, made after that day. But the Court received the evidence.

The counsel for the plaintiff then objected, that the return of the levy by the constable was defective, because it did not follow the words of the act of Assembly upon that subject. Thereupon, the defendant gave evidence that there was not a water-course within the land in dispute,...