Summary
In Mayo v. Whitson, 47 N.C. 231, Nash, C.J., expressed the opinion of the Court in these words: "It is further urged that the Court will not allow an amendment of a record to the injury of third persons who have acquired an interest under it.
Summary of this case from Oliver v. Highway CommissionOpinion
June Term, 1855.
Upon a question, before a court of record, whether its own minutes, of a former term, shall be amended so as to set forth truly its own transactions, it is not bound by the ordinary rules of evidence, but may resort to any proof that is satisfactory to it.
An ex parte affidavit, in such a case, therefore, taken before a justice of the peace, is not improper.
In a question, whether a court shall enter, nunc pro tunc, an order made at a former term (but not then entered) the propriety of such former order cannot be enquired into in this Court.
THIS was an APPEAL from the Superior Court of Orange, from a judgment of his Honor Judge DICK, at the last term of that court, affirming an order of the County Court of Orange to amend a former order of that court.
Norwood, Graham and Bryan, for plaintiffs.
Winston, Senr., and Bailey, for defendants.
The applicants for this amendment are free persons of color. They had been the slaves of Major Absolom Tatom, but supposing they were duly emancipated by his will, and by the action of the court at Feb. term, 1803, of that county, they have, ever since that time, acted as free persons, and have been taken and accepted as such, in the community where these transactions occurred.
Not long before the date of this application, it was discovered that no order for the emancipation of the slaves, mentioned in the will, had been entered on the minutes, or on any other record of Orange County; and several of the descendants of these persons were seized as slaves by the assignees of the next of kin of Absolom Tatom.
Thereupon, the plaintiff filed his petition and gave notice to Pearce and Whitson, and the next of kin and legatees of Absolom Tatom, that he would apply at the May Term, 1854, of Orange County Court, for an amendment of the record, nunc pro tunc, so as that it should set forth, at February Term, 1803, the decree emancipating George, Cate, Sally and her child, young George, and Jack, slaves directed to be emancipated and set free, by the last will and testament of the said Absolom Tatom. Upon a motion in court to make the amendment of the minutes of February Term, 1803, the following affidavit of Duncan Cameron was offered in the case, and opposed by the defendants.
"Statement made by Duncan Cameron, of the city of Raleigh, this 26 of September, 1851.
"Affiant saith that he wrote the will of Major Tatom in the city of Raleigh, in the month of December, 1802, he said Tatom being, at that time, a member of the General Assembly, and having died at or about the close of the session.
"Affiant was aware, from frequent conversations with said Tatom in his life time, of his intention to emancipate his slaves by his will; and accordingly, by his will, as will be seen by reference thereto, he directed said slaves to be emancipated for meritorious services, rendered to him.
"The said will was admitted to probate at February Term, 1803, of Orange County Court; and the executors, therein named, qualified thereto: and at the same term, or at some subsequent term, soon thereafter, the executors united in an application to the county court to emancipate said slaves; the court sanctioned the application, and ordered the said slaves to be emancipated. This affiant drew up the decree emancipating said slaves, and handed it (to) John Taylor, then Clerk of the said court, and directed it to be entered on the minutes, as a record of said court.
"Affiant always supposed such entry was made, as it ought to have been. The said negroes were thereafter, and always have been, recognized as free persons, and have acted as such in the community ever since. Affiant, who was one of the executors, never regarded them as assets and was never called upon to account for them as such.
"Test — J.H. Bryan. DUN. CAMERON."
The following probate was affixed to the same:
"State of North Carolina,} Wake County. } On this, 10th day of October, 1851, Duncan Cameron came before the undersigned, a justice of the peace, in and for the county aforesaid, and made oath that the matter contained in the foregoing affidavit, is true, according to the best of his recollection (and) belief.
"Subscribed and sworn to before me, day and year above mentioned. C. B. ROOT, J. P."
To which is added the certificate of the clerk of Wake County Court, with the seal of office, that C. B. Root was a justice of the peace of that county.
The will of Absolom Tatom was also put into the case as evidence, of which, the following extract only is material to the question: "I give and bequeath to my friends, John Hogg, Catlett Campbell, David Ray, William Kirkland and Duncan Cameron, my negroes, George, Cate, Sally and her child, with their future increase, young George, and Jack, to them, their heirs, executors and administrators, in trust and in confidence, that they will use their best endeavors to procure them to be emancipated and set free, for meritorious services rendered me."
Samuel Goodwin, John Hogg, Catlett Campbell and Duncan Cameron were appointed executors. The will was duly proven at February sessions, 1803, of the county court.
At the May Term, 1854, aforesaid, upon proof of the facts recited in the same, the following Order was made and entered on the minutes of the county court of Orange, viz:
"In the matter of George, Cate, Sally and her child, young George, and Jack, claiming to be free negroes, formerly the slaves of Absolom Tatom, deceased — on motion, and on the affidavit of Duncan Cameron, deceased, herewith filed, and upon the admission that the aforesaid negroes and their descendants have always been reputed free negroes, and have always acted as such, since the decree of emancipation mentioned in said affidavit, until the capture of James Mayo, in 1853, one of the descendants of the said slaves, who instituted suit therefor, which is now pending in the Superior Court of Orange, and that the estate of said Tatom was settled by suit in Equity, commencing in 1816, and ending in 1825, without any claim on account of said slaves, and it appearing that Catlett Campbell, Duncan Cameron and Samuel Goodwin, qualified at February Term, 1803, and that John Hogg, remaining executor, qualified at May Term, 1803: It is ordered and adjudged by the Court, that the records of this Court, at May Term, 1803, be amended by the entry, nunc pro tunc, of the decree for the liberation of said slaves, which will appear on reference to the record of that term."
Paul Cameron, the surviving executor of Absolom Tatom, appeared in court and assented to this amendment.
From this order of the county court of Orange, an appeal was taken to the superior court of that county, and the case heard de novo, when the foregoing will of Major Tatom, with the certificate of probate, and of qualification of the executors, was adduced in evidence. The foregoing affidavit was also produced, authenticated as before stated, and moreover, in the superior court, proven by J.H. Bryan, the subscribing witness thereto: this affidavit was objected to by the defendants counsel, but admitted by the court; for which the defendants excepted. The plaintiffs also showed that the negroes in question, ever since the year 1803, were taken and accepted as free persons in the county of Orange, where they resided. The record of the suit for the settlement of Major Tatom's estate, the material portion of which is recited in the order of the county court, appealed from, was also put in as evidence.
No demand was ever made of the executors for these negroes, nor in any way were they treated as assets of the estate.
The defendants showed that they had assignments of their rights in these negroes from the next of kin of Absolom Tatom.
Upon consideration of the case, his Honor was of opinion that the record of the county court ought to be amended, as ordered and directed by the said county court, and that a writ of procedendo issue to that court.
Appeal, by defendants, to the Supreme Court.
In the case of Pillipse and others v. Higdon, Busb. 380, the doctrine of amendment of records, was fully examined by this Court. It is an important subject of practice; questions of the kind occurring upon almost every circuit of the superior courts. With a view to settle, as well as they can be, the questions arising in practice upon the subject, and to furnish the profession, with what was considered by this Court, the true principles upon which amendments of records are to be regulated, the doctrine was carefully considered. The opinion filed, divided the subject into three classes. The second announces the power of a court to amend its records after a suit determined, and is in the following words: "Every court of record has ample power, after a suit is determined, to amend its own records, that is, the journal or memorial of its own proceedings, kept by the court or its clerk, by inserting what is omitted, or striking out what may have been erroneously inserted; for every court of record is entrusted with the very responsible duty of keeping it faithfully and making it speak the truth, as it imports absolute verity, and cannot be collaterally called in question; and the record, so amended, stands as if it never had been defective." Under this class, the present application ranges itself.
The petition alleges, that the late Major Tatom, of Orange county, by his last will, directed his slaves to be emancipated by his executors, of whom the late Duncan Cameron was one: That at the May term, 1803, of Orange county court, the executors brought into court the will of the testator, which was then duly admitted to probate, and made application to the court to liberate said slaves, which was granted, and the executor, Mr. Cameron, then drew up the decree of emancipation and handed it to the then clerk, John Taylor, and directed it to be entered on the minutes of said court, as a record thereof. It then states that upon an examination of the records of that term, it is discovered that the clerk neglected, or omitted to make any entry upon his minutes, of the proceedings; and the object of his petition is to have the records of the Februruary [February] term, 1803, of Orange county court, amended, so that the proceeding of that court, on the application for the emancipation, may be entered on it, nunc pro tunc.
To show the fact of the order or decree for emancipation, the examination or affidavit of the late Duncan Cameron, taken before a justice of the peace, was offered in evidence on the part of the plaintiff. Its reception was objected to. The objection was overruled, and the affidavit was heard.
When the object of the petition is considered, it will at once be seen, that the testimony was competent. It is the duty of the court to see that their records speak the truth, and their general power to do so is not questioned. The court, in discharging its duty in this particular, may hear any testimony which is calculated to satisfy its judgment. It is not deciding a question of property between litigating parties, but one touching the correctness of its officer, in the performance of his clerical duties. It was inquiring whether its records speak the truth? Whether its order has been obeyed? It is entitled to draw evidence from any pure source. Mr. Cameron was dead, and of all men, living or dead, he was the most likely to know the truth. He was one of the executors of Major Tatom, and the counsel who conducted the business in court, and if the facts had been engraved in adamant, they would not have been in a firmer grasp than in his memory. Where could the court have looked to find testimony more satisfactory? It would have been at liberty to receive his declaration or statement of what had been done. Most fortunate for the ends of justice was it, that his valuable life was spared until this controversy arose. His affidavit was properly received.
But it is further objected, that at the time it is alleged that this order of the county court of Orange was made, slaves could be emancipated only for meritorious services, rendered to the owner, and there is nothing to show the county court that such services had been rendered.
The first answer to this suggestion is, that we are not now sitting in judgment upon the action of that court in making the order of emancipation, but whether they did make it? If they did, the parties interested have a right to have the order spread upon the records of the term when it was made. If we are to look, however, behind the order itself, we think there was testimony, in the will of Major Tatom, to authorize the declaration that the slaves had performed meritorious services to him. Of this fact, cases might occur, in which the master alone could testify; as in passing a solitary wood, the servant may have saved his master's life, either from an assassin, or from drowning, and no one else present. Many such instances might be supposed. But I see no reason, in law, why the court should not hear the master, when asking to confer a favor upon a favorite slave, when he was thereby stripping himself of valuable interests.
It has been further argued, that every amendment supposes something to be amended, and something to amend by; that the petition is, in substance, not to amend, but to make a record. This idea is founded in mistake. The petition is not to amend the record of the order to emancipate, but to amend the records of the Feb. term, 1803, of Orange county court, by now causing to be put upon it, that which was, at that time, ordered by the court, but omitted by the clerk. It is true, the court must now have something to amend by, and they have it in the statement of Mr. Cameron, and the length of time, during which, the community, in whose midst the slaves of Major Tatom have lived, has received and counted them as free. The court has it in the additional fact, that fourteen years after the death of Major Tatom, a bill was filed by his next of kin, against the executors, for a settlement of the estate, and in no part of the proceedings were the negroes claimed as a part of the estate, nor was any account asked for as to them or their hires. All this is strong evidence that the order of emancipation was made at the time alleged.
It is further urged that the court will not allow an amendment of a record to the injury of third persons, who have acquired an interest under it. The principle is misapplied here. The court is not called on to amend any process whatever, but to amend its own records, so as to make them show the truth. The record so amended can work no greater injury to any one than would arise if the order had been committed to the records at the time it was made, for it must speak as of that time.
The question we are now considering is one of great importance to every man. Every citizen is interested in the principle, that the records of these courts of justice should import absolute verity. The security of property, and much of the peace of society depend upon it. As it is but the evidence of what has been transacted by the court, it should show the truth upon its face. To do this, the court must see that nothing is put upon it not ordered by it, and nothing omitted, which they have ordered.
An old act of the General Assembly directed that upon the opening of court each morning, the record or minutes of the preceding day's transactions, should be read by the clerk in open court. If this practice had been observed on this occasion, much trouble and expense would have been spared.
Finally, it is said that too long a time has elapsed, since the neglect occurred, to remedy it now; the petitioner ought to have applied sooner. I know of no rule which the court lays down in such a case as this, as to any lapse of time. It is to be recollected, that to have the records amended, so as to set forth the truth, is a matter of right in him who is interested in having it done, and a matter of duty in the court, when sufficient evidence is laid before it; and the lapse of time is in no way important, further than it increases the difficulty of procuring adequate testimony.
Neither can any laches attach to the delay in the filing of this petition. Mr. Cameron states that he was not apprised of the omission of the clerk to make the necessary entries, until the setting up of the claim by these defendants.
No case can be presented, more emphatically exhibiting the necessity of the rule of law we are examining, than the one now before us. An aged man without children, or any descendants of such, is about to descend to the grave. Between him and his slaves exists a tie which is unknown to the master and the hireling: on the one hand, the proud consciousness of power and protection, and on the other, the consciousness of humble submission and gratitude for kindness, which, in sickness and in health, has known no wavering. This tie is about to be sundered; no creditor claims them; the aged man looking around him, asks himself, "then, whose shall these be?" He does what he can to confer upon them the boon they hold most dear! Half a century passes away; for that time, the slaves and their descendants have enjoyed their freedom; at length it is discovered that the records are silent on the subject; immediately, the birds of prey are upon the wing, and they are seized as slaves, and the demand is made upon them to prove their freedom. It would indeed be a reproach to the law, if there was no way in which it could correct the evil, growing, in a measure, out of its negligence.
PER CURIAM. The judgment of the Superior Court is affirmed.