Hughes v. . Pritchard , 153 N.C. 23 ( 1910 )

This is a proceeding which was instituted for the purpose of establishing the dividing line between a tract of land, alleged by the plaintiff to be the homestead of the defendant, and an adjoining tract, which was purchased by the plaintiff at a sale under an execution issued against the defendant. In his deed the sheriff conveyed to the plaintiff the tract of land upon which he had levied under the execution, but excepted therefrom the homestead of the defendant.

It appeared that the report of the appraisers, who set apart the homestead to the defendant, could not, after diligent search, be found in the clerk's office. There was evidence tending to show that an allotment of the homestead had been made by three appraisers, at the request of the sheriff, and that their report was prepared and signed by them. This report was seen in the clerk's office among the papers in the judgment roll of the case in which the execution had been issued. A copy of the report was made and, after proving the loss of the original report, the plaintiff proposed to prove, by oral evidence and by the copy, the contents of the original report, for the purpose of showing the boundaries of the homestead and the proper location of the disputed line. This testimony was objected to (25) by the defendant, but admitted by the court. It was clearly competent. The defendant's objection was based upon the ground that oral evidence can not be received to prove the contents of a judicial record, unless in a proceeding brought to establish the lost or destroyed record, under Revisal, ch. 11, and that the record thus restored by proof and the judgment of the court, is the only evidence admissible to show the contents of the lost record. This is a misapprehension of the meaning and scope of that enactment. It is an enabling act and it was not intended to exclude oral evidence, which was admissible at common law to prove the contents of a lost instrument, whether a deed or the record of a court. This has been well settled by the decisions of this Court. Mobley v. Watts, 98 N.C. 284, and cases cited in the annotated edition; Cox v. Lumber Co., 124 N.C. 80;Aiken v. Lyon, 127 N.C. 175; Jones v. Ballou, 139 N.C. 526; Wells v. Harrell, 152 N.C. 218. In this case the plaintiff did not depend altogether upon the memory of a witness, as to the contents of the report, but introduced an examined copy, or one which had been compared with the original and found to be correct. This is the principal exception of the defendant, and in passing upon it, we must sustain the ruling of the court below.

The failure of the appraisers to sign the report in the presence of the sheriff did not render it void, so that the defendant could impeach it in this collateral proceeding. It was, at most, an irregularity, and if compliance with the statute in this respect is so essential to the sufficiency of the report and the allotment of the homestead, as to constitute the omission to sign the report in the presence of the sheriff a valid objection to it, the remedy of the defendant was by a motion to set aside the report, after it had been filed in the office of the clerk of the Superior Court. Oates v. Munday, 127 N.C. 439; Formeyduval v. Rockwell,117 N.C. 320; Burton v. Spiers, 87 N.C. 91. The other exceptions of the defendant are without merit, if they are not sufficiently considered and disposed of by what we have already said.

No error.

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