McLeod v. . Bullard

84 N.C. 515

• Court: Supreme Court of North Carolina
• Decided: January 5, 1881
• Status: Published

Opinion

RuffiN J.

1st Exc. That the defendant, C. W. Bullard, was required to produce on the trial the deed of January 23rd, and was refused further time to answer the plaintiff’s affidavit; This affidavit states particularly the circumstances connected with the execution of the deed, and explains how its inspection is necessary to the plaintiff’s case, and seems fully to meet every requirement of the rule of the courts in this regard. Whatever doubts may have once existed as to the power of the court to coerce the production of private writings, they have been removed so far the courts of this state are concerned, by express statute. The Revised Code, chap. 31, § 82, provides that courts of law shall have power to require the production of papers and documents “in cases and under circumstances where the parties might be compelled to produce them by the rules of chancery; ” and the Code of Civil Procedure confers still more ample power upon the courts. § 331, Under these two statutes, the courts have been wont to require the production of every document containing evidence relating to the merits of an action, whenever the justice of the case seemed to require it. Branson v. Fentress, 13 Ired., 165; Justice v. Bank, 83 N. C., 8. The defendants had ample notice of the plaintiff’s motion, and, indeed, appear to have come prepared to respond to it, from the fact that they had the deed in court, ready to produce when required; thus proving that there was no necesity for further delay in the matter.

2nd Exc. That a transcript of the judgment of the Cumberland superior court, instead of the judgment-roll, was allowed to be used as evidence: The point in dispute between the parties was not the validity, regularity or consequences of that judgment, but its existence, as a mere matter of fact, and for a purpose altogether collateral. For such, purpose the certified transcript of the judgment alone was certainly sufficient, as was said in the case of Scott v. Bryan, 73 N. C., 582.

3rd Exc. That plaintiff was allowed to speak of the fact that the defendant, C. W. Bullard, kept a “bar-room” at Laurel Hill, when the deed was executed : Taken in connection with other facts deposed to by the witnesses, this was not an immaterial matter. Those other facts were, in substance, that the plaintiff was much addicted to intemperance ; that the defendant, knowing this and intending to take advantage of his weakness, sought to inveigle him into executing a deed for his land under the pretence that it was an agreement to arbitrate their differences ; that in furtherance of this scheme, he plied the plaintiff with liquor at home, and then persuaded him to go to Laurel Hill, where he had an attorney, ready to prepare the deed and present it for signature just at the moment when the plaintiff might get into a condition the most easily to be deceived. It thus became a circumstance full of significance, that the place selected for the transaction was one where the plaintiff ■would be exposed to temptation, and where the means for the gratification of his appetite could be given, or withheld, at the will of the defendant. As the jury had to pass upon the truth of those other facts, they were entitled to have the benefit of every circumstance that could possibly throw light upon them.

4th Exc. That the plaintiff was allowed to show that the deed was without consideration.

5tb Esc. That he was allowed to testify that he was not, at the time of its execution, indebted to the defendant,

11th Esc. That the witness, McNair, was permitted to speak of the value of the land, to show an inadequacy of consideration.

These three exceptions, relating to kindred matters, are considered together. The technical rule that the recital of the consideration set forth in a deed, cannot be contradicted by parol, does not apply to cases of fraud. Powell v. Heptinstall, 79 N. C., 206. The distinction is thus drawn in Starkie on Evidence, 671: “The objection to parol evidence does not apply when offered, not for the purpose of contradicting or varying the effect of a written instrument of admitted authority, but when, on the contrary, it is offered to disprove the legal existence, or rebut the operation of the instrument. To do this is not to substitute mere oral testimony for written evidence — the weaker for the stronger j but to show that the written ought to have no operation whatsoever — an object which must usually be accomplished by oral evidence.”1 If any authority is needed to support the proposition that a want of consideration and a gross inadequacy of price are each some evidence of fraud, and may, in connection with other circumstances of imposition or oppression, furnish ground sufficient for setting aside a contract, it will be found in any one of the following cases: Darden v. Skinner, 2 Car. L. R., 279; Futrill v. Futrill, 5 Jones Eq., 61; Hartley v. Estis, Phil. Eq., 167, and the numerous authorities cited therein.

6th Exc. That the court refused to admit in evidence the letter from “McKethan & Son” : We can discover no principle under which the letter could have been received in evidence, offered, as it was, solely for the purpose of contradicting the statements made by the witness, McKethan, at the trial. There was literally nothing to show that he had authorized it to be written, or that he knew of its contents, or, indeed, of its existence, up to the very moment of its pro duction on the trial. It is true, it appeared to be in the handwriting o.f his partner and son, but it related to other than partnership matters; and the father swore that the son had neither a general nor special power to speak for him in this particular instance, and there was no evidence to contradict him.

7th Exc. That the witness, Long,‘was permitted to testify to the remark made in the company of persons present at the sale, about the defendant’s bidding for the plaintiff: If. the evidence had left it doubtful whether the remark, though made in defendant’s presence, was in fact heard by him, it would have been proper in His Honor, as was said in the case of the State v. Bowman, 80 N. C., 432, after admitting it to be spoken of by the witness, to have instructed the jury to give it consideration or not, as they might find the fact to be that he heard, or did not hear it. But it is clear, from, the statement of the case, that the doubt, which the witness intended to express as existing in his mind, was not whether the defendant heard the remark, but whether he was not, himself, the author of it; and as it was equally competent, whether made by himself or another in his hearing, no such caution was needed at the hands of the judge. Beside this, that such a remark was made at all at the time (there being only eight or ten persons in attendance on the sale), goes to show that all the persons present participated in the.belief that the defendant was bidding as the friend of the plaintiff. If so, and thereby the defendant was enabled to purchase the plaintiff’s land at an undervalue, it is against good conscience in him to retain an advantage so unduly obtained, even though he had no active agency in-creating that belief. It was so held in the leading case of Neely v. Torian, 1 Dev. & Bat. Eq., 410.

The same reasoning applies to the defendants’ eighth exception.

9th Exc. That plaintiff was allowed to give in evidence his statements, made shortly after the transaction, in corroboration of his testimony on the trial: The right to corroborate an impeached witness by proving that, soou after the matter occurred, he had made similar statements in regard to it, is too well established to need the citation ■of authority in its support. In the case of Bullinger v. Marshall, 70 N. C., 620, it was decided that the same right exists in favor of a party examined as a witness in his own behalf.. <l Why should not this follow?” asks the late Chief Justice-PeaesoN in that case. “ It is in conformity to the avowed policy of the statute by which rejection of testimony, on the-ground of incompetency, is ignored, and the testimony is to. be admitted and weighed by the jury in the scale of credi,--bility.”

10th Exc. That the plaintiff was allowed to show by an .expert that the signature to the deed differed from his natural and ordinary signature, affixed to an affidavit filed in the cause : The comparison between the signatures t.o. the two instruments was not instituted for the purpose of assailing or supporting the genuineness of either, for both, were admitted to have been the work of the plaintiff;, and therefore the ruling of Plis Honor, in permitting it to be made, did not impinge upon the rule of those cases which, forbids the comparison of handwritings for such purposes. But it was made solety to ascertain whether there was any discrepancy in the manner of their execution and, if so, whether that discrepancy could be accounted for by the alleged drunken condition of the plaintiff at the time lie signed the deed, and in this way furnish some corroboration to the positive proof which had been offered on that point. Considered in this light, the case seems to come fairly within the line of those cases in which experts have been called to say whether two documents were written with the same-pen and ink, and at the same time (34 Penn. St., 365); or whether the different parts of the saíne instrument were-written with the same care and facility (Demerritt v. Randall, 116 Mass., 331) ¿ oí whether two documents, supposed to have been written’ in a disguised band, were i» fact written-hy the same person. Reult v. Braham, 4 Tenn. Rep., 497. la all these instances., a comparison of one document with another, or of one part of the same document with other parts, was sanctioned by the courts} and being matters of skill and) experience, requiring a practised eye and ©lose , observation to1 determine them correctly,, experts were rased! .for the purpose. And so,- we think, in the present case it p;^uired'something' more than- the observation and experi-..qiiq® ordinarily possessed- by the jurors of the country to be „ab]e(to pefeeive the difference between the two signatures ..exhibited in evidence, and to1 trace its probable cause,

12th (Exe,. The refusal of the' judge to submit an issue •whether ,the .alleged agreement of the defendant, Bul-lard, to purchase the land fot the' plaintiff,- was in ■writing: Only those issues should be submitted to the jury which are raised in the pleadings aííd are necessary to a certain legal determination of the matters' in controversy. .In the pleadings .prepared by the parties in this case, there -was no question made .as to the nature of the promise', and no suggestion of the statute .of frauds, and if there had been the.latter it would still have been improper to have allowed ■the,issue asked for to be-submitted to the jury, for the rea..son that, howeyer they might £n-d it to be, it did not even ‘.tend towards a disposition o,f the rights of the parties to the .action. Whether the promise be by writing or by word .only, if made, it was equally binding -on the defendant-. Mulholland v. York, 82 N. C., 510, and ithe many cases there ¡reviewed in the opinion of the present -Chief Justice.

13th Exc. Tothechargeof theju-dge,inthat he instructed the jury that if, while the relation of mortgagor and mort.gagee subsisted between the parties, .the defendant (the mort gagee) purchased the equity of redemption of his mortgagor, the law presumed it to have been fraudulently done, unless the defendant could show, by a preponderance of testimony, the ben® fides of the transaction-: It is not to be denied ’that this charge of His Honor is in conflict with the decision of this court as rendered in the case of Chapman v. Mull, 7 Ired. Eq., 292. In delivering the opinion of the court in that case, the late Chief Justice PjsaRSON expressly declares that the principles, in relation to dealings between trustee ■and ■cestui qu;e trust, as adopted by courts of equity, do not apply to the case of mortgagor and mortgagee; but that such parties, there being no dependence or duty of protection involved in their relation, were at liberty to deal with each ■other, subject only to the ordinary principles. We understand, however, this decisión to have been virtually departed from in the case of Lea v. Pearce, 68 N. C., 76; and in •express terms, in the case of Whitehead v. Hellen, 76 N. C., 99 ; in both of which cases the opinions were delivered by the same learned judge. In the last named case, he uses the following emphatic words-: “Courts of equity look with jealousy upon all dealings between trustees and cestuis que trust,- and if the mortgagor had, by deed, released his equity of redemption to his mortgagee, we should have required the purchaser to ■take the burden «/ proof, and satisfy us that the man whom he had in his power, manacled and fettered, had without undue influence and for a fair consideration released his right to redeem.” In this uncertainty of authority, proceeding from the same high source, we have to look for light from other sources. Bigelow, in his work on Fraud, page 166, says, there are certain relations, termed relations pf confidence, from the existence of which the law raises a presumption of fraud, in any dealings that may take place between the parties, because of the undue advantage which the situation itself gives to one over the other. Of thes8 “ relations of confidence,” he enumerates eight in number, and in the following order : Attorney and client; principal and agent; partners; -trustees and cestuis que trust; guardian and ward; executors and administrators; mortgagor and mortgagee; parent and child. Thus, he places the-relation of mortgagor and mortgagee with the other well defined and universally acknowledged fiduciary relations, Upon principle, this should be so. It is due to good faith and common honesty that such a presumption should arise in every ease where confidence is reposed, and the property and interests ■of one person are committed to another. To every such person his trust should be a sacred charge — -not to be regarded with a covetous eye.

The several exceptions of the defendants are therefore overruled, and the judgment of the court below is affirmed.

No error. Affirmed,