Springs v. Schenck

Avery, J.

after stating the facts: The finding of the Court below that the papers in a case tried by a Justice of the Peace had been lost by him, and could not, after diligent search, be found, is not, in its bearing upon the admissibility of secondary evidence to prove their contents, reviewable in this Court. Bond v. Smith (decided at thislerm); Greenleaf on Evidence, sections 84, 509 and 558; ibid., Vol. 2, §17.

A Justice’s Court is not a Court of record, and, as was said in Reeves v. Davis, 80 N. C., 209, “the rule has been for many years to admit the judgments of Justices’ Courts in evidence, on proof of their hand-writing, of their being in office at the time, and of the rendition of the same within their counties. When properly proven and admitted, such judgments, until reversed, are conclusive as to all the facts found and questions of law determined between the parties and privies thereto, not only in later litigation in the same action, or for the same cause of action, but in any subsequent suit between the same parties involving a different part of the same transaction that was the subject of the first controversy. Brundhild v. Freeman, 80 N. C., 212.

In the case before us for review, after the Judge, upon satisfactory evidence, had found that the original papers had been lost, the Justice of the Peace identified the entries upon his docket, kept at the time of the previous litigation, and was then allowed to state the substance of the lost papers. The officer who was the custodian of the book and the author of the writing in it, was qualified to tell what contemporaneous entries were made by him, according to the express requirement of The Code, and such fragmentary summaries were admissible in evidence. Jones v. Henry, 84 N. C., 320; 1 Greenleaf Ev., §513; 1 Wharton on Ev., §§ 134 and 135:

In his charge his Plonor told the jury, in effect, that if the testimony of the officer was true, the estoppel, growing out of the alleged tenancy, would only exist as to the year 1883, for which the Justice had adjudged that the defendants were the tenants of the plaintiffs, as to the land in controversy, and liable for rents out of the crops raised thereon. We think that the testimony was competent, and the charge in relation to it correct. Williams v. Clouse, 91 N. C., 322; Temple v. Williams, 91 N. C., 82. This conclusion disposes of the first and second exceptions, and that last taken to the instruction given by the Court.

It was not competent, when the Register of .Deeds, who was the custodian of the tax-books, was put upon the stand and identified said book, to hand it to the jury for the purpose of allowing them to compare the entry of the return of the defendant Gray Toole with that of the tax-payer whose name immediately preceded his own on the book, and who had returned one city lot for taxation, and determine whether certain marks opposite to the name of said defendant were not “ ditto marks,” indicating that said defendant had made the same return. The Judge refused to allow the jury to inspect the book, but the witness was permitted to tell them what the return of the defendant was, as appeared from the book in his keeping as an officer. The custodian of a book or document, or one who is in charge of any writing recorded, filed or lodged by law in his keeping, is the proper person to certify a copj' of any such written-instrument to be read as evidence in the Courts (The Code, § 1342), and he is, therefore, authorized to tell the jury, ore terms, when the originals are offered, what is the true entry, if the writing cannot be easily read, or, by the custom of the office, some sign be used to supply the place of an omitted word.

The general rule is that written documents are not allowed to be given to the jury for comparison or inspection. It is not necessary that we should discuss that rule, or point out the exceptions to it. It is sufficient to say that this case comes within the rule.

Counsel very properly declined to discuss and insist upon any other exceptions, save that growing out of the statement by the Court in first part of the charge, of the abstract proposition that title, being proven or admitted to be out of the State, a plaintiff can show title — “first, by a paper title; second, by adverse possession for seven years, under known and visible boundaries, and under colorable title by plaintiff, and those under whom he claims; and third, by estoppel.”

If we concede (which we must not be understood as doing) that it would have been error to leave the jury without further explanation to reach the possible conclusion from this instruction that plaintiff could not recover under the law as laid down, unless he had shown an actual posses-sio pedis of the land claimed, up to the boundaries of his paper title, and also had located the lines of his deed, we think that the lucid'explanation which was given in applying the law subsequently to the specific facts of this case, cured the error complained of, certainly if it was not more favorable to the plaintiff than the evidence justified the Court in making it. The jury were told that if the deed of Phelps to Rothchilds covered the land in dispute, including the “ Mary White cabin lot,” and the agents rented and gave that lot in for taxes for seven years before the suit was brought, the possession of the “Mary White cabin lot” would, by law, be extended to the boundaries of the deed, and the plaintiff, and those under whom he claims, would, by construction of law, be in possession of the whole, and if they found this to be the case, the plaintiff would be entitled to recover, and they would respond to the first and second issues Yes, and assess plaintiff’s damage.

The whole case depended upon the bar of the action by estoppel growing out of the alleged tenancy. So far as it affected the interests of the plaintiff, that question was fairly and clearly submitted to the jury.

We see no sufficient ground for sustaining any of the plaintiff’s exceptions, and the judgment must be affirmed.

Judgment affirmed.