Sutton v. . Westcott

Supreme Court of North Carolina

Sutton v. . Westcott

48 N.C. 283

DecidedJune 5, 1856

StatusPublished

This text of 48 N.C. 283 (Sutton v. . Westcott) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Sutton v. . Westcott, 48 N.C. 283 (N.C. 1856).

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Opinion

Nash, C. J.

The sole question upon which the case is before us, is upon the correctness of his Honor in ruling out the paper purporting to be the last will of Stephen "Westcott, under which the defendant claimed title to the locus in quo.

The paper offered in evidence purports to be a copy of the last will of Stephen Westcott. There was no evidence that the original paper had ever been proved before any Court. The copy is taken from the will’s book of the proper County, but by what authority it was put there, does not appear. The registration of the original was of no more effect than would be the registration of a deed, which had not been duly .proved.

It was contended that the paper writing was, at any rate, good as color of title. It could have no such effect. If the original, executed according to the statute, had been produced, and been duly proved on the trial, or if never proved and registered, its absence had been properly accounted for, and the paper offered been properly proved to be a true copy, it (the copy) might have been received as color of title. A copy of a deed can never be considered as color of title until it is shown that a deed did exist of which it is a true copy; so, neither can a copy of an alleged will. See Commissioners of Beaufort v. Duncan, 1 Jones’ Rep. 239 ; Callender v. Shermam, 5 Ire. Rep. 711; Drake v. Merrill, 2 Jones’ Rep. 374. There is no error.

Per Curiam.

Judgment affirmed.

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Nash, C. J.

The sole question upon which the case is before us, is upon the correctness of his Honor in ruling out the paper purporting to be the last will of Stephen "Westcott, under which the defendant claimed title to the locus in quo.

The paper offered in evidence purports to be a copy of the last will of Stephen Westcott. There was no evidence that the original paper had ever been proved before any Court. The copy is taken from the will’s book of the proper County, but by what authority it was put there, does not appear. The registration of the original was of no more effect than would be the registration of a deed, which had not been duly .proved.

It was contended that the paper writing was, at any rate, good as color of title. It could have no such effect. If the original, executed according to the statute, had been produced, and been duly proved on the trial, or if never proved and registered, its absence had been properly accounted for, and the paper offered been properly proved to be a true copy, it (the copy) might have been received as color of title. A copy of a deed can never be considered as color of title until it is shown that a deed did exist of which it is a true copy; so, neither can a copy of an alleged will. See Commissioners of Beaufort v. Duncan, 1 Jones’ Rep. 239 ; Callender v. Shermam, 5 Ire. Rep. 711; Drake v. Merrill, 2 Jones’ Rep. 374. There is no error.

Per Curiam.

Judgment affirmed.

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Bluebook (online)

48 N.C. 283, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sutton-v-westcott-nc-1856.