McMichael v. . Pegram

35 S.E.2d 174, 225 N.C. 400, 1945 N.C. LEXIS 323

• Court: Supreme Court of North Carolina
• Decided: September 19, 1945
• Status: Published

Opinion

Barnhill, J.

Plaintiffs offered to testify that the deceased went into possession of the premises shortly after the default in the payment of the indebtedness to the building and loan association for the purpose of collecting the rent and applying it to the payment of their indebtedness. They also offered to testify that, after the deceased purchased the property at the foreclosure sale, they executed and delivered to him certain notes secured by trust deed on the premises to secure the purchase price, and that the deceased then had in his possession a deed to the premises. Presumably they were the grantees in the deed to which reference was made, but it does not affirmatively so appear. This evidence was excluded.

The excluded testimony of plaintiffs, witnesses in their own behalf, clearly relates to personal transactions and communications between them and defendant’s intestate, concerning the subject matter of the litigation. It comes squarely within the prohibition of G. S., 8-51. The court below committed no error in excluding it. Turlington v. Neighbors, 222 N. C., 694, 24 S. E. (2d), 648; Wilder v. Medlin, 215 N. C., 542, 2 S. E. (2d), 549; Wingler v. Miller, 223 N. C., 15, 25 S. E. (2d), 160; Walston v. Coppersmith, 197 N. C., 407, 149 S. E., 381; Boyd v. Williams, 207 N. C., 30, 175 S. E., 832; Bunn v. Todd, 107 N. C., 266. Por other authorities see annotations under G. S., 8-51.

There is no sufficient evidence in the record to sustain the contention of plaintiffs that defendant’s intestate, while acting as attorney and agent for them respecting this particular transaction, purchased the property at the foreclosure sale and took title to himself. Hence no trust ex maleficio resulted. Indeed it is not so alleged.

The feme plaintiff offered to testify that she “saw a deed for the land in controversy” in the office of deceased at the time she and her husband executed certain notes. It does not appear that this was a deed to plaintiffs or that it had been executed by the deceased. If he exhibited it to plaintiffs, as their testimony would seem to indicate, it involved a personal transaction. But granting that evidence of the mere fact a deed was seen in the possession of the deceased might be competent, Ins. Co. v. Jones, 191 N. C., 176, 131 S. E., 587; Carroll v. Smith, 163 N. C., 204, 79 S. E., 497; Cornelius v. Brawley, 109 N. C., 542, it is alleged and both plaintiffs testified deceased never delivered it to them.

It is axiomatic that delivery is essential to vest title in the grantee named in a deed. Delivery is the final act of execution. Turlington v. Neighbors, supra, and cases cited. The excluded evidence did not avail the plaintiffs. Even if competent, its exclusion was not prejudicial.

The prohibitory provisions of G. S., 8-51, render plaintiffs incompetent to testify concerning personal transactions with the deceased. They fail to offer through other witnesses evidence tending to support their alleged cause of action. Hence the judgment below must be

Affirmed.