Thompson v. John L. Roper Lumber Co.

84 S.E. 289, 168 N.C. 226, 1915 N.C. LEXIS 14

• Court: Supreme Court of North Carolina
• Decided: February 17, 1915
• Status: Published

Opinion

Allen, J.

The deed from Taylor, administrator, and the judicial proceedings authorizing its execution are necessary links in the chain of title of the plaintiffs, and unless established by competent evidence the judgment of nonsuit must be affirmed.

The deed was introduced in evidence, but the judicial proceedings were not produced, the plaintiff relying on the recitals in the deed to prove their existence and contents.

It is well established that the recitals in a deed executed pursuant to a judicial decree, or by a sheriff upon an execution sale, are evidence of the facts recited, but they are only secondary evidence, and before being admitted for that purpose the loss or destruction of the original record must be clearly proven. Isley v. Boon, 109 N. C., 555; Person v. Roberts, 159 N. C., 168.

The law has also fixed the standard by which the loss or destruction of the original recoid must be established.

In Byrd v. Collins, 159 N. C., 641, the Court quoted from Avery v. Stewart, 134 N. C., 291, and applied the rule that “If the instrument is lost, the party is required to .give some evidence that such a paper once existed, though slight evidence is sufficient for this purpose, and that a bona fide and diligent search has been unsuccessfully made for it in the place where it was most likely to be found, if the nature of the case admits such proof. What degree of diligence in the search is necessary it is not easy to define, as each case depends much on its peculiar circumstances ; and the question whether the loss of the instrument is sufficiently proved to admit secondary evidence of its contents is to be determined by the court and not by the jury. But it seems that in general the party is expected to show that he has in good faith exhausted, in a reasonable degree, all the sources of information and means of discovery which the nature of the ease would naturally suggest and which are accessible to him.”

Applying tbis rule, it is manifest that tbe plaintiff bas not met its requirements. Tbe clerk wbo searched, for tbe original papers does not say bow mucb time be spent in tbe search nor that no papers can be found, but that be satisfied himself they could not be found “easily” and that be is “unable to tell whether they can be found or not.”

Tbe docket entry, standing alone, is also too meager to furnish evidence of tbe proceedings and tbe record.

It doe's not show whose administrator Taylor was, nor whose heirs were defendants, nor is there any reference to tbe land sold.

Tbe deed to Prichard, which was objected to, is void, as contended by tbe defendant, because tbe grantee named was dead at tbe time of its execution (Neal v. Nelson, 117 N. C., 406), but upon proof of payment of tbe purchase price bid at tbe sale an equitable estate would be vested in tbe heirs of tbe purchaser, and it is well settled in tbis State that an action may be maintained on an equitable title (Condry v. Cheshire, 88 N. C., 375; Brown v. Hutchinson, 155 N. C., 207); and in our opinion there was circumstantial evidence of payment.

If tbe controversy should again be litigated it would be well to have separate findings upon tbe question of payment in fact and payment by presumption from lapse of time.

Affirmed.