Nash, J. In the trial of this cause below, the only error committed, that I can perceive, was in receiving evidence of the handwriting of Staly, the subscribing witness, to prove the execution of the papers offered in evidence by the defendant. The testimony, however, was not objected to by the plaintiff, and, of course, it was l’eceived by con *4 sent. The error, therefore, was not in the action of the Court; and neither party can now object to it. The general rule of evidence is, that when a deed, or other paper writing is attested, it must be proved by the attesting witness, if he is capable of being examined.
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OVERMANv. COBLE,35 N.C. 1(1851)
WILLIAM OVERMAN, ADMINISTRATOR, ETC., v. DANIEL COBLE AND HENRY STALY.
Supreme Court of North Carolina
1. Where a witness to a contract, subsequently to his attestation, acquires an interest in the contract through or under one of the contracting parties, he is an incompetent witness for the party so creating the interest, unless the circumstances entirely negative any idea of fraud, as where the interest was thrown upon him by the act of the law, or where, after attestation of an instrument the witness has married the party seeking to establish the instrument.
2. Where a plaintiff gives evidence of the declaration of a defendant, the defendant has a right to call for all the defendant said at the time, provided it be pertinent to the issues or to the declarations proved by the plaintiff, but not otherwise.
3. A party claiming a new trial because of evidence improperly rejected must set forth in his bill of exceptions what was the evidence rendered, in order to enable the Court to decide upon its relevancy.
APPEAL fromEllis, J., at the Fall Term, 1851, of RANDOLPH.
TROVER for a bed, and a variety of articles of household furniture, brought by the plaintiff, as administrator of Rachel Bunting, against the defendants, Coble and Staly.
It appeared in evidence that the intestate, Rachel Bunting, who had lived in the house of defendant Coble for fifteen years, died on 27 September, 1846. Defendant Coble, after her death, sold the property in question to defendant Staly, who removed it to his own house. Defendants relied for title on a bill of sale for the property, purporting to have been made by the said Rachel to defendant Coble, and to be witnessed by defendant Staly. This bill of sale was offered in evidence, upon proof of the handwriting of the said Staly. A bond by Coble to Staly was also offered in evidence, purporting to have been made atPage 18the same time with the bill of sale, conditioned for the support of the said Rachel by Coble, during her lifetime. This was in like manner attested and proved.
Plaintiff insisted that these papers were forgeries, after the death of the said Rachel, and offered evidence tending to show that they were not in existence during her lifetime, but were made subsequently. To rebut this evidence, defendants proved that a few days before the death of Rachel, the defendant Staly came home from her house with two papers, which he filed among his deeds. Defendants then (3) proposed to prove that at that time, Staly said that he had been at the house of Coble, and had written a bond for the support of the said Rachel by the said Coble, and a bill of sale from Rachel to Coble for the property in controversy, and that the papers which he then had with him were the bond and bill of sale, the first having been executed by Coble and the latter by Rachel, on that day. This evidence was objected to on the ground that it consisted of the declaration of the defendant only, and the objection was sustained by the court, and the evidence rejected.
A witness testified that after the alleged sale to Staly, in 1847, he purchased from defendant Coble a flaxwheel, as the property of the said Rachel, and the witness went on to say that at the time of the sale the defendant spoke of it as the property of the said Rachel. Upon cross-examination defendant's counsel proposed to give in evidence all the declarations of Coble at that time, which, upon objection, the court refused to permit.
A verdict was returned for the plaintiff, a rule for a new trial was moved for and refused, and judgment rendered on the verdict. Appeal, on the ground of error in the judge in rejecting competent evidence.
No counsel for plaintiff.Gilmer and Miller for defendants.
NASH, J.
In the trial of this cause below, the only error committed, that I can perceive, was in receiving evidence of the handwriting of Staly, the subscribing witness, to prove the execution of the papers offered in evidence by the defendant. The testimony, however, was (4) not objected to by the plaintiff, and, of course, it was received by consent. The error, therefore, was not in the action of the court; and neither party can now object to it. The general rule of evidence is that when a deed or other paper-writing is attested, it must be proved by the attesting witness, if he is capable of being examined. If not so capable, proof of his handwriting will be sufficient. 1 Phillips Evidence, 473. Among the causes enumerated by Mr. Phillips for admittingPage 19proof is that of an interest acquired by the witness since his attestation. InGodfrey v. Morris, 1 Strange, 36, the attesting witness had, subsequently to his witnessing the bond upon which the action was brought, become the administrator of the obligee, and he was, therefore, plaintiff in the action. His handwriting was proved, because the interest had been created by the act of the law; it was thrown upon him by law, and was assumed for the benefit of others. And the rule has been extended to cases where the witness, after attestation, married the plaintiff, who sought to establish the instrument.Bulkley v. Smith, 2 Esp., 697. But in no case that I have been able to find does the rule operate where the party seeking to prove the instrument has created the disqualification, or been the means of doing so, under circumstances justly subjected to suspicion of fraud. In other words, the circumstances must be free from all suspicion of fraud. This principle was adopted in our State at an early period. InHamilton v. Williams,2 N.C. 139, in an action on a bond, the attesting witness had become an assignee, and plaintiff offered to prove his handwriting, but the evidence was finally rejected by the court. The same question presented itself inS. v. Bynum,3 N.C. 328. Defendant had executed the bond on which the action was brought, to James Short, and it was attested by John Short, who was the assignee of James, and who assigned it to the plaintiff. The question was whether the execution (5) of the bond could be proved by proving the handwriting of the subscribing witness and that of the obligee. The Court decided it could not. HALL, J., in delivering the opinion of the Court, said that the case was not at all like those where the subscribing witness was dead, etc., "for such disqualification was not brought about by the agency of the obligee." He then assigns the reason: "If such proof were competent, a forged bond may easily be established against any one without swearing to a falsity." InJohnston v. Knight,5 N.C. 292, the principle is again affirmed, the Court, in its opinion, observing, "The subscribing witness is selected by the parties to bear testimony to their contract, in case a dispute should arise; that his production has been dispensed with only in cases of necessity, as where he is dead, etc., or become interested by operation of law. But the necessity, in this case, arises entirely from the act of the person (or, at least, with his concurrence) who offers the lesser evidence, which certainly cannot, and should not, form an exception to the general rule." The same principle is recognized in our sister state of Alabama,Bennet v. Robinson, 3 Stev. Porter, 227.Best, J., inFloville v. Stephenson, 5 Bing., 493, observes: "But in the present case the witness has only obtained an interest in the contract which he was to prove, andthat interest he derivedimmediately from the plaintiff, who proposed to call him.Page 20Plaintiff cannot complaint that his witness is disqualified, when he himself has been the cause of the disqualification." See Phillips Ev., 466, and the note by Cowen Hill, 881, pp. 1265-66, where the above cases are collected and commented on. They fully prove the position that where a witness to a contract, subsequently to his (6) attestation, acquires an interest in the contract, through or under one of the contracting parties, he is an incompetent witness for the party so creating the interest, unless the circumstances entirely negative the idea of any fraud, as inBulkley v. Smith, 2 Esp., 697; nor can his handwriting be proved by such party. The facts in this case bring it completely within the rule established in those referred to, and show the extreme danger of admitting the evidence offered. Coble claimed the property in question by a purchase from the intestate, and Staly was a witness to the alleged conveyance, and to him Coble sold it. Plaintiff produced evidence to prove that the paper purporting to be such conveyance was a forgery, made after her death. To sustain that conveyance, it was proposed to give in evidence the declarations of Staly. Could a case be described more emphatically calling for their exclusion? The interest of Staly was acquired from Coble, and after his attestation. To admit such evidence would be to open a very wide door to fraud, as it is a rule of law that where proof of the handwriting of an attesting witness is admissible, it is evidence of the execution of the instrument, and the sealing and delivery of it will be presumed. 1 Phil. Ev., 574. Staly was not a competent witness for defendant Coble, nor was the latter entitled to prove his handwriting. It follows, as a necessary consequence, that his declarations concerning the execution of the papers was not evidence for his codefendant nor himself, he being a party to the record. His Honor committed no error in rejecting the testimony offered.
The proposition of the defendant as to the declarations of Coble was too broad. All that he said at that time upon the subject to which his declarations, as proved by the plaintiff, related, would have been competent. But defendant did not so qualify his proposition. As (7) stated by him in his bill of exceptions, he wished to prove all that he said at that time. It might have embraced declarations irrelevant to the issues, or, if relevant, not connected with the declarations proved by the plaintiff, and forming no part of them. A party wishing for avenire de novo, because of testimony improperly rejected, must in his bill of exceptions set forth what the evidence was that he tendered, and not its effects, to enable the Court to see its relevancy. This evidence was properly rejected.
PER CURIAM. Affirmed.Page 21Cited: S. v. Purdie,67 N.C. 328;Roberts v. Roberts,85 N.C. 11;S.v. Pierce,91 N.C. 609;Whitmire v. Heath,155 N.C. 306;In re Smith,163 N.C. 466.