Yates v. Yates

• Decision Date: 31 January 1877
• Citation: 76 N.C. 142
• Court: North Carolina Supreme Court
• Parties: JESSE YATES v. ROBERT YATES and wife.

76 N.C. 142

JESSE YATES

v.ROBERT YATES and wife.

Supreme Court of North Carolina.

January Term, 1877.

CIVIL ACTION, to recover possession of real estate, commenced in Wilkes County and removed on affidavit of defendants to Alexander County, thence by consent to WATAUGA County and tried at Fall Term, 1876, of the Superior Court of said County before Buxton, J.

Both parties claimed under their father John Yates, who had been in possession of the land in controversy about fifty years before his death which occurred on the 6th day of February, 1875.

The plaintiff read in evidence a deed from John Yates and wife Elizabeth to himself, dated June 5, 1848, with David Yates and John Eller as subscribing witnesses. This deed was admitted to probate, Feb. 22, 1875, upon proof of handwriting of both of said witnesses and also of John Yates, but that of his wife Elizabeth was not proved, the signing by her appearing to have been done by making a cross-mark.

The Probate Judge recited in his certificate, that both the grantors and witness David were dead and that witness Eller was a non-resident. There was no privy examination of the feme grantor.

The plaintiff also read in evidence the deposition of said Eller, taken during the progress of the cause and signed by him, in which he stated that he witnessed the execution of said deed at the instance of the grantors. Eller died before the trial of the cause.

The defence was, that the deed under which the plaintiff claimed was fraudulent, that John Yates died in possession of the land and by last will and testament devised the same to his wife by a second marriage, Fannie M. Yates, for life, remainder to her two daughters in fee, and that defendants obtained possession from the devisees under a contract of purchase which was completed since the institution of this action, by their executing to the feme defendant a deed in fee simple, and that she, feme defendant, is now the rightful owner of said land.

Exceptions:

1. The defendants read in evidence an authenticated copy of the last will and testament of John Yates, dated August 1st, 1853, and of the codicil annexed, dated July 23, 1860, devising said land to Fannie M. Yates for life, remainder to his two daughters, Angelina and Elizabeth. Plaintiff excepted.

2. The deed from the said devisees to defendant was read in evidence. This was objected to by the plaintiff for the reason (among others) that the deed had not been properly proved. Objection overruled.

3. There was evidence tending to show that the plaintiff and John Yates had had a conversation about the title to the land, which was objected to on the part of the defendants on the ground that the testimony involved a declaration of the plaintiff on a different occasion and that he was not entitled to the benefit of it. Overruled.

4. Fannie Yates, a witness for defendants, was asked on cross-examination, “Did you tell Rufus Eller that you had made your husband swear, six months before his death, that he had never made a deed to Jesse Yates?” Ans. “I cannot recollect making any such remark.” And on re-direct examination, the following was allowed by His Honor: “Did you make your husband swear that he never made a deed to Jesse Yates?” Ans. “I did not.” Plaintiff excepted.

5. The defendants read in evidence a deed from John Yates to David Yates, dated December 24, 1855, conveying fifteen acres of land. The plaintiff objected because the date was subsequent to that of the deed under which plaintiff claimed and that therefore his right could not be affected by it; but the defendants insisted that the evidence tended to show that the deed of June 5th, 1848, was not genuine: “1. Because John Yates, the maker of the deed to David Yates, was in possession at the date thereof claiming ownership, which was inconsistent with the idea that he had disposed of the land. 2. Because David Yates, the grantee, is one of the subscribing witnesses to the deed of 1848, which was inconsistent with the idea that he really witnessed a previous conveyance of the land by John Yates.”

6. J. E. Pearce was introduced by defendants and testified that he did not think the signature of David Yates as one of the subscribing witnesses to said deed, was genuine. Defendants' counsel then handed to witness a bond from said Yates to witness, who testified that he saw said Yates sign the bond, the defendants insisting that this was done to corroborate the statement of witness that he had seen David Yates write his name, and not for the purpose of comparing handwritings. Plaintiff excepted.

7. J. P. Matthewson was then introduced by defendant, as an expert in the matter of handwriting. The witness stated that he had been in business as a clerk and store keeper for a considerable time; that he had been Clerk of the Court and Sheriff of the County, and had been frequently called on to examine signatures of persons, and from his means of observation could form an opinion satisfactory to himself, as to whether two pieces of writing were by the same person. Plaintiff excepted.

8. After examining the signature of John Eller to a deposition admitted to be genuine, and his signature as witness to deed of 1848, the witness stated that in his opinion the latter signature was not genuine. Plaintiff excepted.

9. Thomas Welch a Justice of the Peace testified for defendant, to the effect that John Yates made a statement to him which he reduced to writing. Yates swore to it and signed it on October 9th, 1871. The substance of the affidavit was, that he understood his son Jesse claimed to have a deed for the land, and he wanted to swear it was not so, or if he had a deed it was a forgery. The plaintiff objected to the reading of the affidavit on the ground, that it was an ex parte statement made by John Yates in the absence of the plaintiff. Objection overruled.

Under the instructions of the Court, the jury rendered a verdict for the defendants. Rule for new trial. Rule discharged. Judgment. Appeal by plaintiff.

Messrs. R. F. Armfield, G. N. Folk and Scott & Caldwell, for plaintiff .

Messrs. T. J. Wilson and H. Bingham, for defendants .

RODMAN, J.

It is unnecessary to repeat here the facts on which the several exceptions of the plaintiff are founded, as they will be found by reference to the case sent up from the Superior Court.

We proceed to consider the exceptions in their order:

First exception: Because of the admission in evidence of the will of John Yates, disposing of the land in controversy.

It is admitted that no act or declaration of John Yates, could divest or disparage any estate previously conveyed by him to the plaintiff. But the will, and the other acts and declarations of John Yates hereafter spoken of, were not allowed as evidence for such purpose.

The plaintiff claimed title under an alleged deed from John Yates dated on 5 June, 1848, and proved on 22 February, 1875, after his death which took place on 6 February, 1875. As both parties claimed under John Yates, the plaintiff as his grantee, and the defendants under his devisees, there was no controversy as to his title.

It was in evidence that before and at the date of the alleged deed to the plaintiff, John Yates was in possession of the land in controversy and so continued (with the exception of a piece which he sold to his son David) up to his death, a period of over twenty-five years, without having ever surrendered the possession to the plaintiff.

It is a presumption that a person in possession of land holds for himself as tenant in fee. 1 Greenl. Ev. § 109. This presumption however is one of fact only, and may be rebutted by proof of declarations of the tenant in disparagement of his right; as for example, that he holds under some other person.

The purpose for which the will of John Yates and other acts and declarations by him, while in possession and after the alleged deed to the plaintiff, were allowed in evidence, and that to which they were restricted by the Judge, was to corroborate this presumption and to exclude any supposition that he held...