Opinion
(Spring Riding, 1805.)
1. The register's certificate of instruments not required by law to be registered is of no validity.
2. The loss of a bill of sale may be proved by the party's own oath, and if there be no copy, parol evidence of its contents may be given.
3. If the subscribing witness to a bill of sale, which is lost, be dead, others may prove its contents.
4. If the vendee of a slave be sued, and give notice to the vendor of the suit, the record of the recovery against the vendee is conclusive evidence, as to the vendor, of the superior title of the recoverer.
THIS action was brought on a warranty contained in a bill of sale of a negro woman, made by Goodloe to Garland, and which had been recovered from Garland by Mrs. Prescot.
The bill of sale was given in 1783, and on the trial the following points were determined:
That the certificate of its probate and registration could not prove a copy, because the bill of sale did not require registration when it was made. The law of registration passed since, and the officer was not entrusted to certify in such case.
Secondly, the loss of the bill of sale may be proved by the plaintiff, and parol evidence of its contents may be given, there being no copy.
Thirdly, the subscribing witnesses were proven to be dead, and others were suffered to prove the contents.
Fourthly, it was proven that Goodloe had notice of the pendency of the suit by Mrs. Prescot, and the record of her recovery was therefore admitted against him as conclusive evidence of her superior title.
Verdict and judgment for plaintiff.
NOTE. — As to the first point, see Yarborough v. Beard, 1 N.C. On the second, see Smallwood v. Mitchell, ante, 145, and the cases referred to in the note to that case. On the third, see the cases referred to in the note to Tullock v. Nichols, 1 N.C. 27. And on the last point, see Wright v. Walker, ante, 16, and the cases there referred to in the note.