Allen v. . Allen , 114 N.C. 121 ( 1894 )

It is the duty of the trial judge to submit to the jury such issues, arising upon the pleadings, as will present the whole matter in controversy between the parties and will allow the introduction of all material evidence, the responses to which will enable the court to pronounce judgment upon the merits. See cases cited in Clark's Code, 2 Ed., secs. 395 and 396. It appears by the pleadings that the simple questions of ownership and possession are not the only matters necessary to be passed upon by the jury. The defendants set up equities upon which they demand substantial relief. In his reply the plaintiff distinctly admits the contract of sale between himself and D. S. Allen, the bond for $2,944.62 executed to plaintiff by D. S. Allen, and the bond for title given by plaintiff in consideration thereof, and he avers the nonpayment of the purchase-money by Allen, and the plaintiff's readiness to make title according to his bond upon said payment. The (138) defendants deny the execution of the bonds and aver that if they were executed they have long since been fully paid. There was no dispute as to the location or description of the land. The heirs of J. J. Hayes were not made parties.

The issues presented by the plaintiff had no reference to the equities set up and admitted the right of the defendants to the possession and a title if the purchase-money had been paid; therefore it was proper for his Honor to refuse to submit them. To dispose of the question of issues now: His Honor went to the true controversy between the parties. There being no evidence on the part of defendants to contradict that offered by the plaintiff as to the execution of the bond for title and the bond for the purchase-money, without objection by defendants, who were the ones to complain if there had been any cause, his Honor eliminated all else and directed the attention of the jury to the question whether the purchase-money had been paid in full or in part, for upon these questions alone depended the judgment of the court as to the right of possession of the land. The legal title had been ascertained to be in the plaintiff and the relief was not to be judgment for possession and damages, but as to the equitable rights of the parties.

The second exception relied upon is as to the incompetency of the testimony of Mrs. Cooke and other witnesses concerning the contract between Hayes and the plaintiff and Allen, upon the ground that the relation of vendor and vendee between the plaintiff and Allen being established, any evidence as to prior transactions between them was irrelevant, in the absence of allegations of fraud. The case was complicated by the complaint and answer referring largely to these prior transactions, and it turned out that the admissions in the reply simplified the controversy, but in the limited time allowed for trial of (139) cases at nisi prius it is not always an easy task to elicit the true issues from the pleadings until they are made clear by the testimony and admissions on each side. If testimony is admitted which is in its nature prejudicial to the one side or the other, and is not withdrawn from the jury with all necessary cautions, a new trial will follow the error. But where no injury could have resulted from its introduction it does not follow that a new trial will be granted.

His Honor promptly announced to the jury, when he presented the true issue to them, "that it did not matter what was the original interest of the two Allens in the land, or what relations they respectively bore to it, or how much either had paid on it," that if they believed the evidence they should respond to the first issue, Yes. He could not more effectually have withdrawn the objectionable testimony from them and we must assume that they were at least men of ordinary intelligence.

The third exception is to the introduction of the note for $1,544.68, and the testimony of D. H. Gill and J. N. Gill in relation thereto. If the only evidence in regard to this note or bond had been that it was found among the papers of D. S. Allen after his death, it could not have been received in evidence against the plaintiff, for there was nothing which connected it with the plaintiff, no entry upon it in his handwriting, and it would have been (as was contended by the counsel for plaintiff) a declaration in his own favor by D. S. Allen in the absence of the plaintiff, and in this view it would have been entirely inadmissible. But defendants contended that this note was given in some way in part payment of the note for $2,944.62, and they offered evidence of its presentment to the plaintiff and his explanations and his declarations that the land had been fully paid for, they relied upon the dates of the two notes to show that the $1,544.68 had been given subsequently to the $2,944.62 note, and the evidence offered to show that the plaintiff admitted that the $280 credit upon the lesser note (140) was a payment by D. S. Allen on the land. The dates of the credits upon these notes were also relied upon as circumstances to strengthen the defendant's contention. These, and other testimony offered to connect the two notes, constituted some evidence competent to go to the jury to establish the defendant's contention. It was not now an effort to establish a parol trust in plaintiff, which might have required a higher degree of proof, but it was simply to make good the plea of payment of the $2,944.62 note given for the purchase-money of the land.

Another objection to the admission of the $1,544.68 sealed note or bond in evidence was that there was no sufficient description of the land in it, and therefore that it was void as a bond for title. But it was not signed by the plaintiff, and if this clause in the bond had been omitted, still the bond would have been admissible in connection with the other testimony above referred to offered for the purpose of connecting it with the larger bond. The bond for title relied upon by the defendants was that made by the plaintiff on 15 March, 1874, and admitted by him. It was in evidence that there was but one land transaction between the plaintiff and D. S. Allen, and the offer of the note for $1,544.68 was not made to establish the contract of sale, but to set up a credit upon the larger note. In this view we hold that the defective description did not affect the competency of the note as evidence for the purpose for which it was offered.

The fourth exception is as to the admissibility of the deed or contract by which D. S. Allen sold to the plaintiff his interest in their father's estate for $280, which plaintiff contends was irrelevant. As we understand it this was offered in connection with testimony as to admissions of the plaintiff that this sum had been appropriated (141) by him in part payment of D. S. Allen's indebtedness to him upon the land, and in this view it was competent.

The fifth and last exception relied upon by the plaintiff is the refusal to give the instructions prayed for by him, as set out in the statement of the case. In other words, that there is no evidence that the $1,544.68 note was intended to go as a credit upon the $2,944.62 note which was found to have been given for the land. We have already adverted to the testimony relied upon by the defendants to connect the former with the latter note or bond, and have indicated our opinion that there was some evidence proper to be submitted to the jury upon this contention, and for the same reason we concur in the view taken by his Honor in refusing the prayer for instructions. There is

No error.

Cited: Simmons v. Allison, 118 N.C. 778; Tucker v. Satterthwaite,120 N.C. 122; Kerr v. Hicks, 131 N.C. 94.