Westfeldt v. Adams

• Court: North Carolina Supreme Court
• Writing for the Court: MONTGOMERY, J.
• Citation: Westfeldt v. Adams, 42 S. E. 823, 131 N.C. 379 (N.C. 1902)
• Decision Date: 25 November 1902
• Parties: WESTFELDT et al. v. ADAMS.

42 S.E. 823

131 N.C. 379

WESTFELDT et al. v. ADAMS.

Supreme Court of North Carolina

November 25, 1902

Appeal from superior court, Swain county; Geo. A. Jones, Judge.

Action by G. R. Westfeldt and others against W. S. Adams to recover possession of land. From a judgment in favor of plaintiffs defendant appeals. Reversed.

Where a deceased person declared to a witness that a certain tree marked the beginning corner of a tract of land, and at the time of the declaration the parties were not at or near such boundary, but other witnesses thereafter found the corner and identified the tree, the witness was entitled to testify to the declaration by such deceased person, on an issue as to the proper boundaries of the land.

Merrimon & Merrimon, Shepherd & Shepherd, and Joseph J. Hooker, for appellant.

F. A Sondley and Julius C. Martin, for appellees.

MONTGOMERY J.

Four questions of importance are involved in the case on appeal First, the propriety of an action to recover possession of land where the title is an equitable one, the equity not being stated in the complaint; second, the legal effect of a conveyance for land, not being under seal, when introduced as a link in the chain of title; third, the rule concerning hearsay evidence, as applicable to boundary; and, fourth, the rule in reference to general reputation as to boundary.

It seems to be settled by the decisions of our court that a plaintiff may recover in ejectment upon an equitable title. Taylor v. Eatman, 92 N.C. 601; Condry v. Cheshire, 88 N.C. 375; Geer v. Geer, 109 N.C. 679, 14 S.E. 297. In cases, however, where it is necessary to establish equitable ownership by extrinsic testimony, then the facts and circumstances should be particularly set out in the complaint. Under the former system, in cases where it became necessary to resort to the court of equity to recover possession of land, all the facts necessary to establish the equity and to warrant equitable interference were required to be set out in the bill. And under the present practice, in conformity to the old practice, they must be particularly set forth in the complaint. But where the naked legal title is outstanding in another, or where, upon the face of 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 pleadings. Geer v. Geer, supra. And that view is not inconsistent with Patterson v. Galliher, 122 N.C. 511, 29 S.E. 773, and the cases there cited. Of course, the same rule would apply in cases where the defendant was defending his possession.

In respect to the second question,--the legal effect of deeds not under seal,--of course, the general rule is that they convey nothing, and are void. Land can only be conveyed by deed, and a deed is an instrument of writing, signed, sealed, and delivered But there is an exception to the rule, or at least one instance in which the lack of a seal may be dispensed with, under a decision of this court,--a decision which meets our hearty approval. Geer v. Geer, supra. There the deed was without seal. On the trial the plaintiff introduced evidence in the nature of a record of the superior court concerning a sale of land for partition. The clerk of the court, who was appointed to sell the land and convey the same to the purchaser, omitted to put a seal at the end of his name; and the court held that "where upon the face of the record evidence, like that before us, the court would in a direct proceeding, as a matter of course, order the correction of a mere formal defect in the execution of its decree, it is unnecessary, though perhaps the better practice, to set forth the facts in the proceeding." In the case before us there appeared no seal to the deed which formed a main link in the chain of the plaintiff's title, and in his complaint there were no equities set out. The plaintiff, however, introduced in evidence the full record of the bankruptcy proceedings on the petition of E. H. Cunningham, filed on the 26th day of May, 1868. That record showed the appointment by the proper authority of F. S. H. Reynolds, of Buncombe county, as assignee of the bankrupt; and the deed in question, in which was conveyed the land in dispute, was executed by Reynolds, the assignee, to George Westfeldt, the plaintiff. We are of the opinion that the same rule ought to be applied here that was applied in Geer v. Geer, supra. Certainly the United States district court, through which the administration of the bankrupt law of 1867 was conducted, would upon the inspection of the records introduced in this case as evidence, upon motion, order a commissioner appointed by the court to execute a deed with a seal; the defect in the original being merely technical and formal. Under the circumstances of the case, we think there was no error in the ruling of his honor that the deed was sufficient to pass title.

Probate of the deed was had in Buncombe county, and the land was situated at that time in the county of Macon, and afterwards embraced in the territory of the new county of Swain, formed in 1871. Pub. Laws 1870-71, c. 94. The officer who took the probate in Buncombe county did not attach his seal to the certificate, and, when the registry of Swain county was introduced by the plaintiff, the defendant objected because the certificate of the probate officer of Buncombe county was not made under that officer's seal. The probate was dated May 1, 1869, and was registered in Swain county on September 16, 1881. At neither date did the laws require the certificate to be accompanied by the seal of the probate officer. Acts 1868-69, c. 64; Battle's Revisal, c. 35,§ 5; Holmes v. Marshall, 72 N.C. 37.

The third and fourth questions for consideration can be discussed together: The beginning corner of the tract of land claimed by the plaintiff was the chief matter in...