Braddy v. . Pfaff

186 S.E. 340, 210 N.C. 248, 1936 N.C. LEXIS 70

• Court: Supreme Court of North Carolina
• Decided: June 15, 1936
• Status: Published

Opinion

Devin, J.

The correctness of the judgment is assailed on two principal grounds: (1) That the evidence of payment by defendant Herbert E. Pfaff of his indebtedness to the estate was incompetent; and (2) there were errors in the court’s instructions to the jury.

1. By the provisions of the will of O. Y. Pfaff, the original source of title, the payment of “what amount he may be owing me, to my estate,” was made a condition precedent to the vesting of title to the described land in the defendant Herbert E. Pfaff. To show that this condition had been complied with, the plaintiff offered in evidence the report of the executrix, filed and recorded in the office of the clerk of the Superior Court, to the effect that the balance due on said land had been paid in full by said Herbert Pfaff.

"Was this competent?

It is a well settled rule that where record books are required or authorized to be kept because the entries therein are of public interest and notoriety, the production of the books by the lawful custodian renders their contents competent if material and pertinent to the issue. 1 Greenleaf Evidence, secs. 483-485. Wherever there is a duty to. record official doings, the record thus kept is admissible. Wigmore Evidence, sec. 1639; C. S., 1779; In re Thorp, 150 N. C., 487; Allen v. Royster, 107 N. C., 278. Here the will had been duly probated and recorded wherein appeared the provision requiring payment by defendant Herbert E. Pfaff as a condition precedent to the vesting of title to devised land; the inventory of the executrix had been duly filed and recorded, and this showed the debt of Herbert as an asset of the estate. And later, when a duly verified report of tbe executrix showing receipt of the balance due on this debt was filed, it was a document authorized and required to be recorded, and when so recorded on the official record book, it purported verity and was competent to be received in evidence. C. S., 938; C. S., 952; C. S., 105.

The authorities cited by the defendants are in support of the principle that the declarations of one not a party are violative of the hearsay rule. But in the instant case, the question was not as to a mere declaration of Minerva Pfaff. It was the competency from a record book in the office of the clerk of the Superior Court of the contents of a paper authorized to be filed and recorded there. This report, so recorded, was prima facie only, and was subject to be rebutted, corrected, or modified by other competent evidence. The defendants’ evidence sharply challenged the correctness of this report and denied the facts therein stated, but that left it a matter for the jury to determine, under appropriate instructions from the court. Heilig v. Foard, 64 N. C., 710; Allen v. Royster, supra; Bean v. Bean, 135 N. C., 92; In re Hege, 205 N. C., 625; Turner v. Turner, 104 N. C., 566.

2. It was urged for error that in charging the jury the learned judge stated the evidence and contentions of the parties in a manner not in accord with C. S., 564, and prejudicial to the defendants. Standing alone, some expressions might be capable of an interpretation in support of defendants’ contentions, but when taken as a whole and the entire context considered, we find no reversible error.

Unless it appears with ordinary certainty that his manner of arraying and presenting the evidence was likely to be prejudicial, it will not be treated as error. S. v. Jones, 67 N. C., 285; S. v. Browning, 78 N. C., 555.

“Slight inaccuracies in the statement of the evidence by the court in its charges to the jury, not called to its attention at the time, cannot be held as prejudicial error.” S. v. Sterling, 200 N. C., 18; S. v. Sinodis, 189 N. C., 565.

The case seems to have been fairly presented and the issues of fact determined by the verdict of the jury. Upon the record, we find no sufficient ground to disturb the result.

No error.