Sallenger v. . Perry , 130 N.C. 134 ( 1902 )

FURCHES, C. J., and DOUGLAS, J., dissenting. This action was brought by the plaintiffs, K. Sallenger and W. H. Sallenger, administrators of Bettie Sallenger, against the defendants, J. W. Perry and George Henneberry, to prevent the sale of the land and to have an account taken as to the amount which might be due upon the $1,000 note executed by Mrs. Sallenger and the plaintiff K. Sallenger to J. W. Perry Co., with a view of declaring whatever balance may be found to be due, and for the return to the plaintiff W. H. Sallenger, administrator of Mrs. Bettie Sallenger, of the Willoughby notes for the purposes of administration.

The contention of the plaintiffs, of course, is that the Willoughby notes, though made payable to K. Sallenger, were nevertheless the property of Mrs. Sallenger; that they were deposited with the defendant J. W. Perry, trading as J. W. Perry Co., as collateral security to the $1,000 note of Mrs. Sallenger, which was secured by deed of trust on her own land, and, therefore, that after the payment of the balance due on the $1,000 note, the Willoughby notes should be returned to her administrator in order that her debts might be paid and that her encumbered real estate might be relieved and descend to her children; and that the Willoughby notes could not be applied to the indebtedness of K. Sallenger to the J. W. Perry Company. It became the chief question in the case to find out who was real owner of the Willoughby notes. If Mrs. Sallenger (137) was the owner, then, she not having been a party to the attachment proceedings in Virginia, the plaintiff W. H. Sallenger, her administrator, is still the owner of the notes; or, if they can not be had, is entitled to their value against the defendant J. W. Perry for their misapplication. If the notes were in fact the property of K. Sallenger, then, the attachment proceedings being apparently regular, their proceeds have been properly applied to his debt to the J. W. Perry Company.

Upon this question an issue was submitted to the jury (the fifth in a series), "To whom did the Willoughby notes belong at the time they were assigned to J. W. Perry Co.?" His Honor charged the jury upon that issue, "That the burden was upon the plaintiff to establish the affirmative of the issue, No. 5, by a preponderance of the evidence; that if the plaintiffs had satisfied the jury by a preponderance of the evidence that the Willoughby notes were by mistake made payable to K. Sallenger, instead of to B. Sallenger, then they should answer the fifth issue, `B. Sallenger.'"

We think there was error in the instruction. Usually, in civil cases the issues are determined by a preponderance of the evidence, but there are exceptions to the rule, and it seems to us that this case falls within the exceptions. In the case of a deed, the meaning of the parties is to be found within its terms, and the law refuses to allow parol evidence to alter, add to or vary that meaning, as a general rule. A deed is, between the parties, their agreement and understanding reduced to writing, and itself constitutes evidence of that meaning next to conclusive; and it ought not to be changed, except upon the clearest evidence of fraud or mistake.

Under the former practice the courts of law were not open for the correction of deeds for fraud or mutual mistake, but the complaining party had to seek relief in equity, and in that case, before the chancellor would correct the instrument, the evidence was (138) required to be satisfactory, that is, "clear, strong and convincing," as was said in Ely v. Early, 94 N.C. 1, and in Cobb v. Edwards,117 N.C. 244. In the present practice the Court will, in cases where an issue of mistake in a deed is submitted, instruct the jury, "That from the evidence they should be thoroughly satisfied of the mistake alleged before they would be warranted in finding the affirmative." Elyv. Early, supra. Why should not the same rule of evidence apply in a case where a bond or note is sought to be corrected for fraud or mistake? Jurisdiction in equity, or rather, with us now, equitable principles would have to be invoked to have the correction made. In England, Henkle v.Royal Exchange Co., 1 Ves., 317, a mistake in an insurance policy was the subject of equitable jurisdiction, and the same rule of evidence was enforced as would apply to the correction of a mistake in a deed. In the case before us the notes upon their face contained express promises to pay the amounts named to K. Sallenger. K. Sallenger used them as his own without disclosing or suggesting any mistake as to the payee until they were seized by process of law by his creditors in attachment proceedings, when he undertakes for the first time to show that they are not his property. Certainly it seems to us that the rule as to the preponderance of the evidence ought not to apply here, but rather the rule which applies to the correction of deeds — that the evidence should be clear, strong and convincing. As analogous, it will be found in our reports that in cases where lost bonds have been set up, whether in the law or equity courts, the proof was required to be of the "strictest and clearest" kind. Fisher v. Carroll, 41 N.C. 485. It (the evidence) must be satisfactory. Deans v. Dortch, 40 N.C. 331. It is not necessary to discuss the other exceptions of the defendant.

Error.