Belk Ex Rel. Belk v. Belk , 175 N.C. 69 ( 1917 )

Walker, J.,

after stating tbe case: We are of opinion tbat tbe burden of proof, throughout the trial, was upon tbe plaintiff, and tbat tbe judge not only committed no error as against tbe plaintiff, but placed too great a burden upon tbe defendant in regard to tbe execution of tbe deed, and of tbis tbe plaintiff cannot complain, as it was an error committed in bis favor. It is true, as contended by tbe plaintiff’s counsel in their able.and forceful argument, tbat tbe introduction of a deed which has been duly probated and registered is sufficient proof of its .execution and genuineness, at least prima facie, but we do not agree tbat it raises such a presumption of law or of fact as to require tbe defendant to rebut it by a preponderance of tbe evidence.

Tbe registration of a deed is founded upon and authorized only by a probate of tbe same taken according to tbe statute, and ex parte proceeding, in which tbe execution of tbe particular deed in question is adjudged upon tbe acknowledgment of tbe grantor or tbe simple examination of a witness, without tbe presence of interested parties. As it is not an adversary proceeding, tbe law does not attach to it tbe force and effect of a judgment rendered after all parties concerned bave been beard, or could bave been beard if they desired to be, but only allows it to have the force of presumptive evidence as to the fact of the due execution in any contest as to the latter.

The force and effect of the registration of a deed has been said by this Court, in some cases, to be prima facie evidence of its due execution, and, in others, to be presumptive evidence of the fact. "We are of the opinion that, owing to the nature of a probate and registration, and having regard to the language of the statute with respect thereto, when a registered deed is introduced it raises such a presumption of its due execution, including in this term both signing and delivery, that, in the absence of any contest as to the execution of the deed, and where no evidence is introduced to assail it, the presumption thus raised as to its due execution will warrant the court in directing the jury to find in favor of the validity of the deed; but when its execution is denied and evidence is introduced which tends to show that it was not executed, the burden of proof is on the party claiming under the deed, but he is entitled to the full benefit of the presumption, as evidence in his favor, and whether the opposing evidence is sufficient to overcome this presumption and to call for more evidence from the plaintiff, is a question for the jury, because they must pass upon the credibility of the evidence and its weight. The burden of proof, sometimes called the burden of the issue, is upon the plaintiff, who alleges the existence of the fact, but who, however, in such a case, has the advantage of a presumption in his “favor. Justice Ruffin, in Love v. Harbin, 87 N. C., 249, 255, citing Carrier v. Hampton, 33 N. C., 307, said: “It is not intended to say that the fact of registration is conclusive as to either the execution or probate of the deed, but only prima facie evidence, and as the factum of the instrument may be disputed after its registration, so may the fact that it was ever admitted to probate, or that it was proved by a competent witness, as was done in Carrier v. Hampton, supra." It is held in Kelly v. Jackson, 6 Peters (U. S.), 622 (8 L. Ed., 523), that prima facie evidence of a fact is such as, in judgment of law, is sufficient to establish the fact and, if not rebutted, remains sufficient for the purpose.

The presumption as to the due execution of a deed which arises from its registration, founded upon a probate, is itself but evidence which must be left to the jury with proper instructions as to its effect in law as proof; but, after all, it is for the jury to say what weight it will attach to it. when there is other evidence tending to contradict it and to show that the deed was not executed, and,upon all of the evidence it is for them to say, with the.burden resting upon the plaintiff and the benefit of the presumption allowed to him, whether the deed was executed.

Our statute concerning the registration of deeds reads as follows: '“All deeds, contracts, or leases, before registration, except those exe•cuted prior to 1 January, 1870, shall be acknowledged by the grantor, lessor, or the person executing the same, or their signatures proven by ■oath by one or more witnesses in the manner prescribed by law, and all ■deeds executed and registered according to law shall be valid and pass title and estate without livery of seizin, attornment, or other ceremony whatever.” It will be seen, therefore, that by the statute all deeds ■executed and registered according to law shall be valid, etc. This can mean nothing more or less than that the fact of execution is not con■cluded by the registration, but is left open to be found by the jury upon proof, and so we have determined in several cases. If, though, there is no proof except the registration, the court may instruct that the deed is valid and passes the title, and that the jury should find accordingly. This was the evident purpose and intent of the statute, and, in this respect, the ordinary rule as to the burden of proof when there is a -prima facie or presumptive case would not apply. But if there is a ■denial of execution and evidence tending to show that the deed was not executed, the burden continues with the plaintiff throughout the case to prove the fact of execution, but he has the benefit and strength ■of the presumption raised by the statute in his favor. That the burden is upon him results from the fact that if he offers no proof, being the .actor in the case, he cannot recover; but when he introduces his registered deed as evidence of his title, he still has the burden, but with the added advantage of the presumption that the deed was duly executed, ■which arises from the registration. If there is no more evidence than •the registered deed itself, it will entitle him to the recovery, if that •depends solely upon the deed, because of the words of the statute; but if there is a denial of the execution of the deed, and evidence to support it, the question as to the execution of the deed becomes an open one with ■the burden on the plaintiff but with the presumption of its due execution in his favor.

We need not attempt to reconcile the expressions we find in the books in regard to this matter, if there is any conflict between them, as we 'believe that the rule stated by us is the safest one, and the one to be fairly deduced from the words of the statute and the nature of the proof, for there is no good reason why, when the deed is probated and registered and is not assailed, it should not be considered as valid, nor why the burden should not rest upon the party claiming under the deed when ••the execution of it is denied and there is conflict in the evidence. The formal proof of the execution is taken before a judicial officer, and even 'though it be an ex parte proceeding, it must be that some more weight .should be allowed it than a mere prima facie case arising from oral evidence of facts, and that it should stand for satisfactory and sufficient j)roof of execution if there be no contradicting evidence. The use of the word “executed” in the statute shows that it was not intended to close the mouth of any one claiming against the deed, but that when there is an issue as to the due execution of the deed it should be incumbent' on the party claiming under it to take the laboring oar and satisfy the jury of its execution, but all through the issue he must have the benefit of the presumption growing out of the fact that it has been formally probated and registered. There is no independent defense set up in the answer, such as fraud' in the treaty, insanity, illegality of consideration, or other like matter, which would, of course, admit the formal execution of the deed, but, instead, a general denial that it was the deed of the alleged maker of it, or, in other words, a denial that it was either signed or delivered by him.

The learned judge who presided at the trial presented these views to the jury, and there was no real conflict in the charge as contended by the plaintiff. If there was any error, it was favorable- to the appellants, as the defendant was required to show by the preponderance of the evidence that the deed was not executed.

There was some questions of evidence, but it will not be necessary to consider them in detail. All of them, presented by many exceptions, can be reduced to a very few in number if we disregard repetition.

The objections to questions asked P. R. Belk were properly overruled, as it will be found upon an examination of the questions that they tended to impeach him or to show that he dealt with the property in question in a manner inconsistent with his present attitude toward this. suit. We do not think that the evidence was irrelevant, but if so, as to that which was not clearly competent it was harmless. There is some latitude allowed on cross-examination, especially when a witness is being attacked or impeached to show his bias or his interest in the event of the action, or his lack of credibility, and we do not always scan it too closely when it is not substantive evidence. If we could see that it is irrelevent and harmful, we would, of course, exclude 'it, but that is not the case here, as this evidence is both relevant and competent.

.The same may be substantially said as to the examination of A. H. A. Belk. The testimony of this witness and that of W. A. Eubanks concerning the charge of A. H. A. Belk against his brother P. R. Belk that he had forged the deed was also relevant to the controversy. It was defendant’s contention that the deed was not executed by Calvin Laney, but that his name subscribed to the deed was forged by P. R. Belk. That was the dispute between them. When P. R. Belk called his brother, A. H. A. Belk, a liar, and the latter sharply retorted “I never forged a deed!” it was the same as a direct charge that P. R. Belk had forged the deed, though made by implication. P. R. Belk could not well have misunderstood it as an accusation of the forgery, and he was silent. When A. H. A. Belk said, “I never forged a deed,” he meant that P. R. Belk had done so, and could have meant nothing else by his insinuation or intimation, but if the language was equivocal, it was for the jury to decide what was intended.

The fact that Parmelia Belk was impecunious and had no money to pay for a deed reciting a consideration paid by her, was circumstance proper for the consideration of the jury upon the question of its execution — not of great weight, it may be, but of some.

The tax lists also were some evidence that the parties did not own the land. It may be slight, but still not to such an extent as to be none at all. Austin v. King, 97 N. C., 342; Ruffin v. Overby, 105 N. C., 78; Bernhardt v. Brown, 122 N. C., 590. It was competent to be weighed with other evidence.

It is competent to show previous consistent statements, of a witness to strengthen his credibility. Johnson v. Patterson, 9 N. C., 183; Jones v. Jones, 80 N. C., 246; Cuthbertson v. Austin, 152 N. C., 338; March v. Harrell, 46 N. C., 329; Bennett v. R. R., 120 N. C., 517. The court gave those of the requested instructions to which the defendant was entitled and the charge fully covered the case.

Whether the second issue should have been submitted makes no difference now, as the jury have found for the plaintiff upon the. first issue. If there was no deed, it is immaterial whether the defendant purchased the land for value and without notice. If the plaintiff acquired no title, it follows that the defendant did, as he had a deed for the land which has not been assailed.

In discussing the burden of proof we may not have sufficiently directed attention to the form of the issue, which is, Whether Calvin Laney had executed and delivered the deed, as alleged in the complaint. The burden of such an issue is clearly upon the plaintiff.

The cases of Benedict v. Jones, 129 N. C., 470; Smithwich v. Moore, 145 N. C., 110, are cited as deciding that the burden of proof as to the nonexecution of the deed rests upon the defendant. The last case cited, Smithwich v. Moore, is a direct authority in support of what we have, said in this opinion. It was there held that the registration, of the deed raised a presumption of its execution, and that there was no evidence in the ease that rebutted or impaired it. The question there was whether the plaintiff, who attacked the deed, had offered any evidence that it was not executed. There is nothing in that case which conflicts with our decision. The other case, Benedict v. Jones, supra, related to the privy examination of the wife, as from the following language of the Court will appear: “In order to rebut that presumption she must show 4o tbe jury by clear, strong, and convincing proof that sbe was not privately examined separate and apart from her husband touching her •execution of the deed of trust according to law.” The decision was based upon Laws of 1889, eh. 389 (Revisal, sec. 956). The deed of trust considered in-that case purported to have been duly executed by the wife with her privy examination and was dated 4 August, 1891. ’The court simply held that if the probate of the deed, including the privy examination, was validly taken, it could not be invalidated for fraud, etc., unless the grantor or person to whom the deed was made participated in or had notice of this defect. But it is said that Lyerly v. Wheeler, 34 N. C., 290; Meadows v. Cozart, 76 N. C., 450; Kendrick v. Dellinger, 117 N. C., 492, cited and approved in Fortune v. Hunt, 149 N. C., 358, 362, support plaintiff’s contention. It will be found that in those cases the only question related to the date of a deed. This appears from the following language used by Judge Peason in Lyerly v Wheeler, supra, at p. 291: “The defendant contended that the date of the deed was no evidence that it was executed on that day; and the plaintiff could not recover without proving that it was executed on the day it bore date. The court charged that the date of the deed was prima facie evidence of the time of its execution. To this the defendant excepts, which is the only point made in the case. There is no error. The date of the deed, or other writing, is prima facie evidence of the time of its execution, upon the general principle that the acts of every person in transacting business are presumed to be consistent with truth, in the absence of any motive for falsehood.” Similar language is used by Justice Bynum in Meadows v. Cozart, supra, with reference to the date of a deed, and Lyerly v. Wheeler, supra, is cited in approval of the principle. The same is substantially said by Justice Ruffin in Love v. Harbin, supra, both as to the execution of a deed and as to its probate and registration.

It is said in Kendrick v. Dellinger, supra, in the first sentence of the opinion, that “A deed is presumed to have been delivered at the time it bears date, unless the contrary is satisfactorily shown,” and for this .statement Lyerly v. Wheeler, supra, and Meadows v. Cozart, supra, are cited. As we have shown, they are not authorities for the statement, as they only decide that “the date of a deed or other writing is prima facie evidence of the time of its execution,” per Bynum, J., in Meadows v. Cozart, supra.

In recent years this Court has not given to a prima facie or presumptive case the force and effect it formerly had, and has more properly .and correctly treated it as furnishing evidence of the fact to be proved. "Where there is really no controversy as to the execution of the deed in question, or no evidence to support a denial of it, we go quite far enough when we allow tbe probate and registration of it to be sufficient proof,, under tbe statute, of its validity; and wben there is controversy and evidence to sustain a denial of its execution, we place tbe burden upon tbe party claiming under it of proving its due execution, but give bim tbe benefit of tbe presumption arising from its registration. Tbe other rule which is contended for would reverse our decisions as to tbe burden of proof wben there is a prima facie case, and, besides, would make it easy for fraud to be committed by registration and very difficult and perhaps impossible to overcome tbe presumption raised by tbe registration of a deed, tbe result being that titles to land in tbe State would be seriously threatened if not destroyed. "We do not deny that a presumption of regularity attaches to tbe proceedings of courts of record acting within their jurisdiction, but tbe presumption that public officers-have done their duty does not always supply proof of a substantive fact. U. S. v. Ross, 92 U. S., 281, citing Best on Evidence, sec. 300.

Tbe Legislature, by using the words “all deeds executed and registered according to law shall be valid and pass title and estates,” etc.,. Revisal, sec. 979, evidently intended that tbe burden as to due execution should be imposed upon tbe party claiming under tbe deed, wben there is an issue joined in regard to it calling for proof. Tbe case of Lumber Co. v. Leonard, 145 N. C., 341, is like Benedict v. Jones, supra, and in it tbe privy examination of tbe wife was assailed, under tbe statute, for fraud. Besides, tbe wife alleged that she thought tbe instrument was a contract to convey timber and not land, which would call for a reformation of it. Odom v. Clark, 146 N. C., 550, did not involve tbe same question as tbe Leonard case, but was cited collaterally and incidentally. The Court expressly, says in tbe Odom case that it is not like Lumber Co. v. Leonard, supra, and Harding v. Long, 103 N. C., 1, and only a preponderance of tbe evidence was required. There is no attack on tbe probate of tbe deed in this case. It involves merely tbe construction of tbe statute, which clearly leaves tbe execution of tbe deed open to proof, nor is there any attempt to reform an instrument as in Harding v. Long, supra. If clear, strong, and convincing proof is required, then tbe case of Love v. Harbin, supra, which has been approved in many cases, was not correctly decided, as there it was held that probate and registration are only prima facie evidence of tbe execution of a deed. Glenn v. Glenn, 169 N. C., 729, was a suit for tbe reformation of a deed, tbe execution of which was admitted, and has no application whatever in this case, as this is not an action to reform or to set aside a deed, or a probate or registration, but tbe question is what is the legal effect, as proof, of tbe probate and registration upon an issue as to tbe execution of tbe deed — and that is all. Tbe authorities cited and just reviewed are not relevant.

We have carefully examined the record, and no error has been found.

No error.