Opinion
(June Term, 1846.)
1. In the case of the return of the levy of a justice's execution on land to the county court, though a notice is directed by law to be given to the defendant, no evidence is required of that notice but the record of the county court ordering the venditioni exponas.
2. The description in the return of a constable of a levy on land need not literally comply with the act of Assembly in such cases, its requirements being substantially that the land should be sufficiently distinguished and identified.
3. When the original records are offered in evidence in the court to which they belong they should be received, because the court is presumed in law to know its own proceedings; but in another court the proper evidence is a copy of the record, authenticated by the seal of the court.
4. In the case of a return by a justice of a levy on land, with the corresponding papers, it is not necessary that it should appear by a distinct certificate of the clerk that these papers have been enrolled in bound books, as required by the act of Assembly. The ordinary copy of the record, certified by the clerk under the seal of the court, is sufficient evidence of the enrollment.
5. The declarations of a person who has executed a deed, at a period subsequent to such execution, are not evidence against the grantee. But the declarations of a grantor between the time when the deed falsely bears date and the time when it was actually executed are evidence as to the fraudulent intent of the parties.
APPEAL from DAVIDSON Spring Term, 1846; Settle, J.
Mendenhall for plaintiff. (385)
No counsel for defendant.
Ejectment for a tract of land which both parties claimed under Isham Doby: the lessor of the plaintiff under a deed from Doby to him bearing date 23 April, 1840, and the defendant under a purchase at a sale under execution against Doby and a sheriff's deed dated 2 November, 1841, as hereafter mentioned.
The defendant alleged that the conveyance to the lessor of the plaintiff (who was the brother-in-law of Doby, and did not appear to have paid anything for the land was antedated, and was fraudulent as against Doby's creditors, and void. The defendant then gave in evidence (383) the records of four cases in the county court of Davidson, some at the instance of the defendant and others at the instance of other persons, against Doby, from which it appeared that in February and April, 1841, four warrants had been commenced against him, on which judgments were rendered and executions issued on 4 June thereafter, on each of which the constable returned, "No goods or chattels to be found; levied on the lands and tenements of Isham Doby, adjoining the land of Allen Newsom, Claiborne Newsom, and others, containing 190 acres." Upon that return, judgments were rendered and orders for sale made in the several cases at August Term, 1841; and thereupon writs of venditioni exponas were issued, under which the sale was made to the defendant. The plaintiff's counsel objected to receiving the records in evidence because it did not appear that the proceedings had been recorded in a well-bound book kept for that purpose. The plaintiff then produced the original warrants, judgments, justices' executions, and constable's return, with the indorsements thereon, "Recorded in minute docket, February, 1843," in the handwriting of the clerk of the county court. The counsel for the plaintiff still objected to the evidence, and insisted that it ought to appear by the minutes of the county court that the papers had been recorded therein. But the court received the evidence. The defendant then proved by one Smith, who is one of the subscribing witnesses to the deed from Doby to Ward, that it was not executed on 23 April, 1840, as it purports on its face to have been, and that, although the witness could not recollect precisely when it was executed, it was certainly not before September, 1840, as the witness knew from the fact that he attested the deed after he came to reside in Davidson County, which was not until September, 1840; and the defendant proved by other witnesses that the deed from Doby to (384) the lessor of the plaintiff was not made until April, 1841; and thereupon the defendant offered to prove declarations made by Doby between April, 1840, and April, 1841, that he was at the time of making such declarations the owner of the premises in dispute, but that he intended to convey them to the lessor of the plaintiff in order to defeat the defendant and his other creditors aforesaid of their debts, and in trust for himself. To the evidence thus offered the counsel for the plaintiff objected for the reason that it would tend to invalidate the deed made by Dobby himself, which purported to be made on 23 April, 1840, and, therefore, ought not to be affected by his declarations made after that day. But the court received the evidence.
The counsel for the plaintiff then objected that the return of the levy by the constable was defective because it did not follow the words of the act of Assembly upon that subject. Thereupon the defendant gave evidence that there was not a water-course within the land in dispute, and that it would easily be identified and known by persons residing near it, from the description in the return. The court instructed the jury thereon that it was not necessary the levy should be in the words of the act, and that if the evidence satisfied them that the description in the return identified the land as effectually, for the information of bidders and others, as if all the terms of the act had been used, it was sufficient.
The counsel for the plaintiff further objected that the orders of sale were void because the defendant had not proved that notice had been given to Doby of the several levies and the intention to move for judgments thereon. But the court held that the judgments and orders of sale in the county court were sufficient, without further proof of such notices.
The jury found for the defendant, and judgment was rendered thereon, and the plaintiff appealed.
That no further evidence of the service of notice as required by the statute, Rev. Stat., ch. 45, sec. 19, is requisite, besides that contained in the record itself, was decided in Burke v. Elliott, 26 N.C. 355, which disposes of the last exception.
Upon the other objection, as to the sufficiency of the return of the levy, Smith v. Low, 24 N.C. 457, and Blanchard v. Blanchard, 25 N.C. 105, are in point to sustain the opinion given by his Honor. It was held in those cases that the construction of the act did not imperatively require that it should be literally followed, provided it appeared upon evidence that the description given was equivalent to that prescribed as the means of distinguishing and identifying the parcels.
It is a very common practice for gentlemen of the bar, for the convenience of themselves and their clients, to use as evidence the original documents and minutes, instead of the record as finally made up or supposed to be made up from them, or a copy from it as enrolled. When the evidence is offered from the same court in which the proceedings were had, no difficulty can occur, because the court knows its own proceedings and records and can instanter order the enrollment, and give the parties the benefit of it, in its complete state. When the proceedings are in one court, and they are offered as evidence in another, regularly the original documents or minutes, which may need evidence to identify them, are not evidence, but only the record made up or a copy from it, authenticated by the seal of the court. This we had supposed to be so perfectly understood that no one would think of objecting that it did not appear from the originals and minutes (when admitted by consent) that they were not enrolled or recorded, as it is called, or would absurdly require that it should be shown by the enrollment that they had (386) been enrolled, when, in truth, those documents by consent are received instead of the regular roll itself. In this case the objection is that it did not appear in evidence that the proceedings had before the justice had been recorded by the clerk in a well bound book, as directed by the act of 1794, Rev. Stat., ch. 62, sec. 16, which it seems to have been supposed could only appear by the minutes of the county court. But whether the proceedings were recorded or enrolled could, in this case, as in every other, appear from the enrollment, or a copy duly certified under seal, and could not appear from the minutes.
The direction to record these proceedings in a well-bound book is nothing peculiar, but is only providing that they, although originating before a justice out of court, shall, when returned to court and made the foundation of an adjudication there, be enrolled for their preservation, as the process, pleadings, and other proceedings are in other cases. Therefore, when a copy of the record of the county court, or what purports to be such record, is produced, it establishes that everything therein appearing is enrolled; for that is in truth the copy of the enrollment in legal parlance. Hence, after reading in evidence the transcript from the county court in this case, it was superfluous to produce the originals with the clerk's memoranda on them, to let it be seen therefrom that they had been recorded, for they were not evidence at all of any such thing, whereas the other was the thing itself or a copy of it. But if only the originals and minutes were read, as they were not objected to on the grounds of their being such originals and not the record technically, it must be understood that they were received, by consent, as evidence of everything that would appear in the roll, when regularly made up from them; and the objection, as being incompatible with such consent, would then be properly overruled. In every point of view, therefore, the decision of his Honor was right.
It is a well settled rule of evidence that the declarations of a (387) person after he has made a deed cannot be received to impeach it, because they were made when he had no interest in the subject, and it would be unsafe and unreasonable that the interests of another person should be attacked by them. It is also true as there is, prima facie, to be a presumption of truth and fairness in all transactions, that the date of a deed is to be taken as the time of its creation until there be evidence to the contrary. But in the present case it is stated as a fact that the date of the deed was not that of its execution, but about one year prior to it, and it was contended that the declarations of Doby of a fraudulent purpose to execute to Ward a deed in trust for himself and give it a false date could not be received, because, though made before the deed was actually executed, they were made after the time the deed falsely purports to have been executed. Such a position is perfectly preposterous, as it would make fraud a complete protection in itself, and enable admitted falsehood to exclude the truth. If the deed had been dated truly, it would have afforded no pretense for excluded the declarations of Doby, during 1840, of the purpose to make a voluntary conveyance to his brother-in-law, because he was then the owner and possessor of the land. Then it is impossible that those declarations, thus made, while he was the owner and possessor, should lose their competency and effect by the subsequent execution of a deed in April, 1841, and giving it the false date of April, 1840. After the evidence as to the time of making the deed, the court properly received the declarations for the purpose of directing the jury to inquire of the true time of the execution of the deed, and, further, to disregard such declarations as were made after the day on which they should find the deed was executed, but to take into their consideration those made before the execution of the deed as evidence, to be weighed by them, of the bona or mala fides of the transaction.
PER CURIAM. No error.
Cited: Pendleton v. Trueblood, 48 N.C. 98; Hodges v. Spicer, 79 N.C. 229; Hilliard v. Phillips, 81 N.C. 106; Farmer v. Batts, 83 N.C. 389; Lash v. Thomas, 86 N.C. 315; S. v. Voight, 90 N.C. 745; S. v. Hunter, 94 N.C. 834; Blow v. Vaughan, 105 N.C. 210; Perry v. Scott, 109 N.C. 384; Webb v. Atkinson, 124 N.C. 454; Bank v. Levy, 138 N.C. 278.
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