Harper v. . Burrow , 28 N.C. 30 ( 1845 )

Ejectment. The plaintiff claimed title under a deed of trust made by the defendant to Jesse Harper, the lessor in one of the demises contained in the declaration. To support his title, the deed, which had been duly registered, was offered in evidence, and its reception was opposed on the ground that, before it could be read in evidence, it ought to be proved by the subscribing witnesses. The objection was overruled by the court, and the deed was read to the jury. The defendant objected to the plaintiff's recovery, for the alleged reason that the defendant at the time he executed the deed of trust was non compos mentis, and the deed, therefore, void. To sustain his objection it was alleged that, several years before, the defendant had been tried in Superior Court of Rowan upon a charge of murder, and that General Gray, on the trial, was introduced as a witness and proved his insanity; and he offered to prove, by witnesses who were present and heard General Gray examined, what he swore to. The testimony was rejected by the court, and the jury, under the charge of the presiding judge, returned a verdict for the plaintiff.

The defendant moved for a new trial, first, because the deed of trust was improperly admitted in evidence; and, secondly, because of the rejection of the evidence to show General Gray's testimony in the former trial.

The new trial was refused, and judgment being rendered against the defendant, he appealed. The Court concurs with the presiding judge on both points. The deed of trust, so far as this case is concerned, is a conveyance of land, and, under the provisions of the act of Assembly, Rev. Stat., ch. 37, sec. 2, can be read in evidence on its registration without (32) producing the subscribing witnesses. Such has been the uniform construction given to the act by our courts, and such their uniform practice. With respect to slaves the law is different. Section 21 provides that on all trials at law for a slave, when a written transfer is offered in evidence its due and fair execution shall be proved by a subscribing witness.Andrews v. Shaw, 15 N.C. 71. In this case the deed was duly proved, and has been duly registered, and is properly certified by the proper officer. We think the testimony offered to show what had been testified to by General Gray upon the trial of the indictment against the defendant was properly rejected. It is a general rule of evidence that the best which the nature of the case admits of, and which is in the power of the party, shall be produced; and the jury trying a cause cannot, without the consent of parties, listen to any evidence except it be given on oath. These two rules exclude all hearsay evidence but in a few excepted cases. Among these are general reputation and pedigree. So, also, what a witness has sworn on a former trial between the same parties, on the same subject-matter, may, in case of his death, be proved in chief by any person present and who heard his testimony; so, what a party to the record has said concerning the matter in controversy is always evidence against him, but not against a third party when uttered in his absence; nor does this come within any of the excepted cases. But a full and complete answer to the proposition of the defendant is that General Gray is alive and could have been called by the defendant to the fact he wished to prove, and neither of the parties claim under him. We say he is alive because the case does not state that he is dead. In looking into the deed of trust, we find that a debt due to him from the defendant is secured in it, and he is a party to the deed. He could not, then, perhaps, have been called by the plaintiff to sustain the (33) deed, because he would have been securing a fund to which with others he was entitled; but he was unquestionably a competent witness to attack the deed, because he would be swearing against his interest. In England, up to 46 George III., ch. 37, it was a vexed question whether a witness was bound to answer a question when the answer might expose him to civil liabilities. Contradictory decisions were made. To remove the doubt and declare the law, that act was passed. 1 Stark. on Ev., 141. In Jones v. Lanier, 13 N.C. 481, this Court declare such was the law before the passage of that statute, and so decide. General Gray, then, if called as a witness, could not have protected himself from answering the defendant's questions on the ground that the answer might subject him to pecuniary loss. Nor is the principle of its being hearsay evidence weakened by the fact that what was said by General Gray was on oath on the trial of the defendant. If General Gray had been dead, the testimony offered would not have been competent, because the real plaintiffs in this case were not parties to that suit; it was res inter alios acta. The testimony of a witness given in a case after his death can be proved in chief only between the same parties when the same matter is in litigation, for the reason that it would otherwise be made to affect others who had no opportunity of cross-examining the witnesses, which is one of the ordinary tests provided by law for the ascertainment of truth in courts of justice. 1 Stark. Ev., 34.

PER CURIAM. No error.

Cited: Wilder v. Mann, 58 N.C. 67; Bryan v. Malloy, 90 N.C. 510.

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