Westfeldt v. Adams
| Decision Date | 27 May 1904 |
| Citation | 47 S.E. 816,135 N.C. 591 |
| Parties | WESTFELDT et al. v. ADAMS et al. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Haywood County; Hoke, Judge.
Action by G. R. Westfeldt and others against W. S. Adams and others. From a judgment for plaintiffs, defendants appeal. Reversed.
Amended Sup.Ct.Rule 27 (46 S.E. iii), providing that when testimony is admitted, not as substantive evidence, but in corroboration or contradiction, and that fact is stated by the court when it is admitted, it will not be ground for exception that the judge fails in his charge to again instruct the jury specially on the nature of such evidence unless his attention is called to the matter by a prayer for instruction, has no application to a case where the judge afterwards in his charge marshals evidence along with substantive evidence in the case without again calling the attention of the jury to its nature.
Shepherd & Shepherd, Jos. J. Hooker, Moore & Rollins, and Merrimon & Merrimon, for appellants.
F. A Sondley and Julius C. Martin, for appellees.
This case was before this court at its August term, 1902, and is reported in 131 N.C. 379, 42 S.E. 823. It is an action in the nature of ejectment. Several of the most important questions raised by the defendants' appeal on the former hearing and decided against them are before us again on the present appeal of the defendants. The plaintiffs, to make good their allegation of title to the land described in the complaint introduced in evidence a grant from the state to E. H Cunningham, dated April 28, 1860, and numbered 2,325; a duly certified copy of a proceeding in voluntary bankruptcy of Cunningham, and a deed from F. S. H. Reynolds, assignee of the estate of Cunningham, bankrupt, to George Westfeldt, dated April 24, 1869, registered in Swain county September 16, 1881, for the land covered by the grant numbered 2,325. That deed was without a seal. In their answer the defendants denied that the plaintiffs were owners of the land, and in further defense they averred that, if the grant from the state to Cunningham embraced the land described therein, yet that the defendants were the owners of two tracts of land of 100 acres each, situated within the boundaries of the land described in the grant of the state to Cunningham. That claim of the defendants rested, as they averred, upon two state grants, No. 1,545 and No. 1,546, of prior date to that of the grant to Cunningham, to William R. and John McDowell, respectively. The defendants in their first appeal struck at the deed from Reynolds, the assignee in bankruptcy, to Westfeldt, contending that it was void because neither the official nor private seal of Reynolds was attached to his signature, and the same question is raised on the present appeal.
The court, in its former decision, recognized the rule of law that a plaintiff might recover in an action of ejectment upon an equitable title, and also recognized the rule of practice that, where it was necessary to establish equitable ownership by extrinsic testimony, the facts and circumstances should be particularly set out in the complaint. But the court there held that in cases where the naked legal title was outstanding in another, or where, upon the face of the record evidence introduced on the trial, a court of competent jurisdiction would, in an ex parte proceeding, and as a matter of course, order the correction of a mere formal defect in a deed, for instance, it is not necessary to set forth the particular facts constituting the equity in the proceedings; and the court cited Geer v. Geer, 109 N.C. 679, 14 S.E. 297, on that point. The defendants did not except to that proposition of law or to that rule of practice, but contended then, and contend now, that the deed from Reynolds, the assignee in bankruptcy, to Westfeldt, does not fall within the principle decided in Geer v. Geer. In the case as first reported we decided that it did, and we refer to the reasons for our decision to those given in the case as formerly reported. In addition, we will say that the proceedings in bankruptcy under the act of 1867 were conducted through the several United States District Courts. The assignee, by virtue of his election or appointment, was vested with the title and right of possession of the property, real or personal, of a bankrupt. The assignee was also authorized by the law to make sale of the property of a bankrupt, the proceeds to be distributed among his creditors. Reynolds, the assignee, sold the land to Westfeldt, received the purchase money, and the same was distributed as by law required. In executing the deed to the purchaser the assignee omitted to affix his seal. Can there be a doubt that a judge presiding over the court under whose jurisdiction proceedings in bankruptcy were conducted would hesitate for a moment to order a commissioner to execute a deed to the purchaser in cases where the assignee was dead or had discharged his duties and closed his trust? We think not. In the former appeal, the defendant contended that the probate of the deed from Reynolds, assignee, to Westfeldt, was fatally defective, in that it was had before the judge of probate of Buncombe county, the land being situated in the county of Macon, afterwards in the new county of Swain (formed in 1871--Pub. Laws 1870-71, p. 155, c. 94), and the signature of the probate judge not being attested by the seal of his office or by his private seal. The court there held neither at the time of the probate of the deed--May, 1869--nor when it was registered in Swain county on September 16, 1881, did the law require the certificate of the probate judge to be attested by the seal of the probate officer, and the Acts of 1868-69, p. 134, c. 64, and Battle's Revisal, c. 35, § 5, were referred to. But the defendants now insist that the court made a mistake in the former opinion in its citation of chapter 64, p. 134, of the Acts of 1868-69, and refer us to chapter 277, p. 653, of the same session, ratified a month later than chapter 64. The defendants contend that the last-mentioned act, in full effect when the probate of the deed was had before the judge of probate of Buncombe county, required the official seal of that officer to be affixed to the probate. We knew at the time of the former decision in this case, as we know now, that chapter 277, p. 653, of the Acts of 1868-69, brought forward in Battle's Revisal, c. 35, § 14, referred to the probate of deeds only where the right, title, and interests of married women were concerned and attempted to be conveyed. Those acts did not affect the deeds of unmarried men.
The defendants, in undertaking to locate the grants 1,545 and 1,546, under which they claimed, introduced many witnesses whose evidence tended to prove that the lands embraced in those grants were situated on Little Fork ridge, and there was a contention between the plaintiffs and the defendants as to where Little Fork ridge was; the defendants contending and introducing much evidence to show that it lay in the Smoky Mountains, between Sugar Fork creek and Haw Gap creek, and that it occupied all the space between those two streams running down to the water's edge on both sides, and extending back in a northerly direction to and connecting with what is known as "Jenkins' Trail Ridge." The defendants introduced evidence to show that a mountain oak, the beginning corner of one of their grants, stood upon this Little Fork ridge, as claimed by them. The plaintiffs introduced evidence tending to show that Little Fork ridge was located two or three miles northwest of the ridge as it is located and claimed by the defendants, and...
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