Wylie v. Smitherman

• Decision Date: 30 June 1848
• Court: North Carolina Supreme Court
• Parties: OLIVER WYLIE, CHAIRMAN, &G. v. JESSE SMITHERMAN, ADM'R. .

8 Ired. 236

30 N.C. 236

OLIVER WYLIE, CHAIRMAN, &G.

v.JESSE SMITHERMAN, ADM'R. .

Supreme Court of North Carolina.

June Term, 1848.

The presumption is that a person, who is entitled to a deed, has it in his possession, until the contrary be shown; and the contrary may be shewn by the affidavit of the person so entitled.

In actions of trespass for the destruction of property, the proper measure of damages is the value of the property destroyed, unless the trespass is committed wantonly or maliciously, when the jury may, if they think proper, give vindiotive damages, but that is a matter for them to decide and not for the Court.

The case of Harper v. Hancock, 6 Ire. 124, cited and approved.

Appeal from the Superior Court of Law of Richmond County, at the Spring term, 1848, his Honor Judge BAILEY presiding.

This was an action of trespass vi et armis quare clausum fregit, brought by the plaintiff, as the Chairman of the County Court of Montgomery, to recover damages for the burning of the Court House of that County by the defendant's intestate. Pleas, the general issue, liberum tenementum, and licence.

Upon the trial, it was proved that the Court House of Montgomery County was burnt on the 31st day of March, 1843, between the hours of 9 and 12 o'clock at night, and testimony was then given tending to show that the act was done, or was procured to be done, by the defendant's intestate. The plaintiff then introduced a properly certified copy of a private act of the General Assembly, passed in the year 1815, for the purpose of removing the Court House and other public buildings from the town of Henderson to some more suitable place. To that end certain persons were appointed Commissioners with authority to them, or a majority of them, to purchase fifty acres of land at the place, which they might select, and they were then directed to lay off the land, so purchased, into town lots and make sale of them at public auction, retaining two acres for the use of the County, upon which it was made their duty to have a Court House and other necessary public buildings erected: and they, or a majority of them, were further directed to make title in fee simple to the purchasers of the lots: and to execute a conveyance to the Chairman of the County Court and his successors forever for the two acres reserved for the use of the public. Mr. Deberry was then called as a witness for the plaintiff and testified, that he was one of the commissioners appointed in the act aforesaid, that the duties therein enjoined were performed, among which was that of causing to be erected the Court House for the burning of which this action was brought, and that the commissioners then executed a deed for the land, upon which it was built, to Joseph Parsons, who was then the acting Chairman of the County Court. He testified further, that this deed was duly proved and registered, and then delivered to John B. Martin, the then Clerk of the County Court, to be filed among the records of his office, but whether Joseph Parsons knew of the deed or not, the witness could not tell. He stated that it was proved in the year 1817, but at what term of the Court in that year he could not recollect. Another witness testified, that he succeeded Mr. Martin as Clerk of the County Court, and that in the year 1839 or 1840, he saw a paper in the office endorsed “A deed from Davidson and others, commissioners, to Joseph...