Mabe v. . Mabe

This is an action of ejectment, and the record presents only two questions necessary to be discussed — one of these is a question of evidence and the other is as to the burden of proof.

The first exception is as to the ruling of the court upon the deposition of one Woolwine, taken in a suit between the same parties in the State of Virginia. This deposition was offered by the defendant, (553) and upon objection on the part of the plaintiff the court allowed a part of it to be read and excluded the other part. The deponent Woolwine had been examined as a witness in the trial of this case, and the court allowed that part of the deposition to be read which, in the opinion of the court, corroborated the testimony of Woolwine as given in this case, and excluded what the court thought did not corroborate Woolwine.

In our opinion there was error in this ruling. It appeared that there was an action pending between the plaintiff and the defendant at the time said deposition was taken; that it was taken on notice and cross-examination; was properly certified to the court where the action was pending, in which it was taken, and was competent evidence in that case. It seems to have been taken in an action for the collection of a note given as the price of the land in dispute in this action. And though the land now in controversy was not directly in issue in the action in which the deposition was taken, yet the matters in that suit and in this are so connected that it makes the deposition competent evidence in this action. Stewart v.Register, 108 N.C. 588. It may be, and it is probable, that the part of the deposition the court allowed to be read was competent upon the ground the court allowed it to be read — as corroborative of Woolwine. But if a part of it was competent for that purpose, why was not all competent, as it is a matter for the jury to determine whether it did corroborate Woolwine's testimony or not; and if so, to what extent.

But as we understand, the rule admitting depositions taken between the same parties in another action is not as to whether it is in corroboration of what the same witness has testified to in the (554) action then being tried, but upon the grounds above stated. If it is only allowable as corroborative evidence, then it could only be competent where the witness had been examined and for the purpose of strengthening what he then said. This is not so. When it comes within the rule, it is admissible as substantive evidence, and may be introduced whether the deponent has been examined in the case being tried or not. It seems only just to the other side that the whole deposition should be read (subject, of course, to proper exceptions noted in the deposition), as there may be something in the deposition that would tend to contradict as well as to corroborate.

The other question is as to the burden of proof. The defendant claimed title under a deed from the plaintiff, and for the purpose of making good this defense introduced a registered deed, in terms conveying the land in controversy from the plaintiff to the defendant. This deed purported to be signed by the plaintiff and attested by Woolwine, the witness heretofore mentioned, and to have been proved by him for registration.

Woolwine testified that he did not see the plaintiff sign the deed; that it had been signed some time before he saw it, and appeared to be witnessed by two persons who did not write their names but made their marks; that he was called upon by the plaintiff and the defendant to take probate of the deed, and the plaintiff acknowledged the execution of the same before him, and he then wrote thereon these words: "Acknowledged by Jesse Mabe, 6 November, 1878. R. J. Woolwine."

While the plaintiff denied this testimony of Woolwine, he contended that if true it will not in law amount to an execution and (555) attestation of the deed, and cited Latham v. Bowen, 52 N.C. 337. But Latham v. Bowen does not sustain the plaintiff's contention. That case is put upon the ground that Mrs. Wynn was a married woman at the time of the acknowledgment; that she was incompetent to make the conveyance at that time, and as she was incompetent to make the conveyance she could not be bound by her acknowledgment of a deed made when she was sole.

It is the most common thing for persons to sign deeds and other instruments and afterwards to acknowledge their signatures before some one whom they ask to sign as a witness. We see nothing wrong in this, and no reason why Woolwine should not have proved its execution for registration.

On the trial the court among other issues submitted the following: "Did the plaintiff Mabe execute to the defendant Smith (who is a party defendant) a deed conveying the land described in the complaint?" Upon this issue the court charged the jury that the registration of the deed, offered in evidence by the defendant, was prima facie evidence of its due execution, and upon this evidence alone their verdict should be "Yes." There was no error in this instruction. Love v. Harbin, 87 N.C. 249. The court further instructed the jury that this presumption might be rebutted, and as the plaintiff had introduced evidence tending to show that he did not sign and execute the deed, it was for them to say how it was. There was no error in this instruction.

But the court further instructed the jury that the burden was still on the defendant. In this there was error. The probate and registration of the deed created a presumption in favor of its execution, and this imposed the burden on the plaintiff to rebut the presumption. S. v. Rogers, 79 N.C. 609. If this was not so, the defendant would (556) have to offer evidence to sustain a presumption already in his favor. There is error.

New trial.

Cited: Freeman v. Brown, 151 N.C. 114.