Hopper v. . Justice , 111 N.C. 418 ( 1892 )

The proposition of plaintiffs was to prove that there is a mistake in the copy from the registration book which they offered in evidence as a link in their chain of title, by which, instead of 170 poles, as it was in the original, it is written 70 poles in the registration. And, to prove this error, they offered to show by a witness that he saw the original deed, and that it was written 170 poles. And they stated that they then expected to prove that the original deed was lost.

Section 1266 of The Code provides for the correction of errors in the registration of deeds, a procedure by petition before the clerk, the grantor and all persons claiming title to or having lands adjoining those mentioned in the petition to have notice of said petition.

It is contended that this statutory proceeding is not exclusive, and that the plaintiffs are entitled to proceed to have the mistake corrected by the means afforded them before the passage of the act in 1790, and, therefore, that upon the trial of this action they may show the mistake in the registration of their deed. But the plaintiffs acted under a misapprehension of their rights in the premises, independent of the procedure provided them in section 1266.

It is held in Mobley v. Watts, 98 N.C. 284, following a line of precedents, that parol evidence is admissible to prove the contents of lost or destroyed records, and that the statutory method of restoring such records (The Code, sec. 55, et seq.) does not have the effect to exclude such proof. But this was upon the principle that the (421) best evidence shall always be offered. Before the destruction of the record, the best evidence was the original or a certified copy; but the record having once existed and been lost, secondary evidence is permitted to supply the loss. The record having been destroyed, the secondary becomes the best evidence; and, as the record itself would have been evidence if it were in existence, proof of it is evidence after it has been destroyed. The case before us is essentially different.

"Records may be identified by testimony, but their contents cannot be altered or meaning explained by parol." Wade v. Odeneal, 14 N.C. 423;Davis v. McAlpin, 26 N.C. 140; Kerr v. Brandon, 84 N.C. 128.

In this case the record is in existence, though the original deed is lost. It is proposed in this action for the recovery of land to alter the registration. This is not an action brought for that purpose; there are not proper parties here to such a proceeding. Section 1266 provides the appropriate means of obtaining relief in such cases. In regard to this action, it is said in Oldham v. Bank, 85 N.C. 240: "The statute provides a remedy for every person in the registration of whose deed a mistake may be made, and if, notwithstanding this, the plaintiffs submitted to loss and inconvenience without any effort to relieve themselves, the consequences of their failure cannot be thrown upon others."

Section 1251 of The Code is not applicable to this case, this is to the effect that a duly certified copy of a deed may be given in evidence, "unless upon a rule or order of the court suggesting some material variance from the original in such registry or other sufficient ground, such party shall have been previously required to produce the original." In which case the copy from the registry is not permitted to be offered in evidence. The reception of the copy as evidence is an exception (422) to the rule of the best evidence, and is only allowed in the absence of the suggestion provided for in section 1251.

His Honor properly informed plaintiffs that they might extend the line from 70 to 170 poles and change the course of the second call from east to west by establishing any corners or lines that would satisfy the jury, by a preponderance of evidence, that the proper location would be found by this extension of the line and changing of the course.

This would have been permissible even if there had been a mistake in the original deed, and arises from the only exception to the rule that the terms of a written instrument cannot be varied by parol evidence. In questions of boundary (no natural object called for) parol evidence, corroborated by natural evidence of trees marked at the time, although not called for, is allowed to correct or explain a mistake in the courses of a grant. Graybeal v. Powers, 76 N.C. 66.

NO ERROR. Affirmed.

Cited: Forbes v. Wiggins, 112 N.C. 125; Williams v. Kerr, 113 N.C. 310;Jones v. Ballou, 139 N.C. 527.