Opinion
(Filed 18 March, 1925.)
Evidence — Declarations — Mortgages — Claim and Delivery — Res Gestae — Hearsay.
Where, in claim and delivery for two mules by the mortgagor under an unregistered mortgage, the defendant claims as a purchaser from the deceased mortgagor, evidence by the plaintiff as to what the deceased mortgagor had subsequently said tending to establish the plaintiff's claim is not part of the res gestae, and is incompetent as hearsay.
APPEAL by defendant from Horton, J., at August Term, 1924, of FRANKLIN.
Wm. H. and Thos. W. Ruffin for plaintiffs.
W. M. Person for defendant.
Civil action in claim and delivery, tried upon the following issues:
"1. Are the plaintiffs, Chandler and Ragland, the owners and entitled to the possession of the two mules in controversy? Answer: `Yes.'
"2. What was the value of said mules at the time of the seizure in claim and delivery? Answer: `$75.00.'"
Judgment on the verdict for plaintiffs, from which the defendant appeals, assigning errors.
This is an action in claim and delivery, instituted by plaintiffs to recover, as mortgagees or by virtue of an unregistered retained-title contract, the possession of a pair of mules, sold by plaintiffs to one George Burnett, now deceased. On the trial, defendant contended that he had purchased the mules from George Burnett, for value and without notice of the plaintiffs' lien, and gave evidence to this effect.
Over objection, the plaintiffs were allowed to offer the testimony of two witnesses, tending to show what George Burnett had said to them on different occasions, and subsequent to the transaction, in regard to the alleged sale of the mules to the defendant. D. P. McKinne, a witness for the plaintiffs, testified to a conversation with the deceased in which he was informed that the mules had only been rented or hired to the defendant and that no sale of them had been made. A like conversation was detailed by the widow of the deceased. This evidence was incompetent as hearsay and should have been excluded. Barker v. Ins. Co., 163 N.C. 175; McCurry v. Purgason, 170 N.C. p. 466.
Speaking to a similar question in the case of Matthis v. Johnson, 180 N.C. p. 133, Walker, J., said: "The testimony of K. A. Robinson was properly excluded, because he proposed to speak solely of a statement, not only of a third person, but of a person who had since died, which was made to him. This was hearsay and incompetent, it having none of those safeguards required by the law for the maintenance of truth."
And in Printing Co. v. Herbert, 137 N.C. 317, the holding of the Court is quite accurately stated in the second head-note, as follows: "In an action to recover possession of a printing press sold by plaintiff by conditional sale, which passed into the hands of a publishing company as an alleged innocent purchaser, declarations of the deceased buyer are inadmissible to show that he received value from the publishing company."
There was error in the admission of this evidence as above indicated. It was no more than statements, given by the witnesses, of what they profess to have heard the deceased say. This is not the kind of evidence to be sanctioned by our courts of justice, for the determination of the rights of litigants. Satterwhite v. Hicks, 44 N.C. 105; 22 C. J., 199. It could not be competent as a part of the res gestae; the conversations were had long after the alleged transaction. A new trial must be awarded; and it is so ordered.
New trial.