Deed in Trust — Declarations of Grantor — Evidence.
1. Where plaintiff claimed title to land under a deed bearing date 15 May, 1857, and the defendant, under a deed from same person, dated 20 April, 1862, and the defendant alleged that the proper date of the deed to plaintiff was 1856: Held, that in the absence of any charge or proof of fraud in the alleged change of date, testimony showing the good character of deceased subscribing witness who had proved the deed to plaintiff was immaterial, and an exception based upon instructions to the jury on such testimony cannot be sustained.
2. Where one had executed two deeds of trust at different times to different persons, his declaration, made subsequent to both of them, that he had not paid the debt set out in the first deed, is admissible against one claiming under the second deed, because such declarations were against his interest.
3. A purchaser under the second of such deeds of trust having testified that the trustor had said at the sale that nothing was due under the first deed, and that the trustee under the first deed was present and did not contradict the statement: It was held, that evidence might be offered to contradict such purchaser, showing that subsequently he had said that the debt secured in the first deed had never been paid.
PEARSON, C. J.
The finding of the jury disposes of the case upon the merits, except so far as it may be affected by the many exceptions taken to the ruling of his Honor.
Counsel of the defendant, with commendable candor on the argument before us, relied upon only three of the exceptions:
1. The charge as to Rick's evidence touching the execution of the deed to Elizabeth Anderson and the admission of testimony of the good character of Ricks. In the absence of any allegation or proof of fraud in the erasure and change of the date of the deed, this ruling and testimony was immaterial and did not in the slightest degree affect the merits of the case. Whether the deed, when executed, was dated 15 May, 1857, or had some prior date which was written over and erased by the words "15th May, 1857," in the absence of fraud, which is negatived by the jury, in either case it had precedence of the deed to Bullock, 20 April, 1863, under which the defendant claims, and the matter is fully explained by the supposition that the deed had been drafter and dated at some time before its execution, and the true day, 15 May, 1857, was written over so as to erase the other date.
2. The declarations of Melton, made a short time before his death, to the effect that he was indebted to Elizabeth Anderson for the debt set out in the mortgage, was admissible because it was against his interest at that time to admit the debt. True, he had made a deed of trust to her, and he had also made a deed of trust to Bullock, but it was against his interest to admit a debt that would necessarily affect his resulting trust. This may have been of slight importance, still it was for the jury to estimate its weight and say whether (519) he was in an earnest manner telling a lie to his daughter against his own interest for the sake of helping Elizabeth Anderson to set up a false debt against him.
3. His Honor did not err in permitting the plaintiff to give evidence which tended to contradict Worsley, who had sworn that at the sale by Bullock Mrs. Anderson did not contradict Melton when he stated in her presence that he did not owe her anything. This was not a collateral fact, but was the very point on which the case turned.
PER CURIAM. No error.
Cited: Shields v. Whitaker, 82 N.C. 518; Croom v. Sugg, 110 N.C. 261; Shaffer v. Gaynor, 117 N.C. 24; Smith v. Moore, 142 N.C. 290; Byrd v. Spruce Co., 170 N.C. 435.