Legal Research AI

Greenleaf-Johnson Lumber Co. v. Leonard

Court: Supreme Court of North Carolina
Date filed: 1907-11-06
Citations: 59 S.E. 134, 145 N.C. 339
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13 Citing Cases
Lead Opinion
BbowN, J.

We think there should be a new trial of this case.

1. The plaintiff, in apt time, handed up the following prayer for instruction, viz.: “That although the feme defendant, M. E. Leonard, did, at the time she signed the contract to convey, believe and suppose that it was only a contract to convey the standing timber, yet, as she, after having ascertained that it was a contract to convey the land, subsequently acknowledged to the justice of the peace, separate and apart from her husband, that she signed the same freely and voluntarily, without fear or compulsion of her husband or any other person, and that she did still voluntarily assent thereto, such acknowledgment would relate back to the signing of the contract, and would be as effectual against her as if she had-known at the time of the signing that it was a contract to con•vey the land that she was signing; .and if the jury should so find, they will answer the first issue ‘No.’ ”

We think it was prejudicial error in the Court to refuse to give this instruction. It deprived the plaintiff of its strongest position before the jury. It is admitted that Mrs. Leonard signed the deed a week before the justice of the peace came to her house to take her privy examination. She testifies herself that when she signed the deed she believed it to be a conveyance of the timber only, but that she learned from 'her husband that it was a deed for the land on the evening of the same day on which she signed it. She admits she knew its true purport a week before the official called to take her examination.

Stokes, the justice of the peace, testifies as follows:

“Q. You are an acting justice of Franklin County, and were such acting justice on the 25th of September, 1905 ? A. Yes.
“Q. Examine that paper (exhibiting option) and see if it is your probate. A. Yes, sir.
*342“Q. When you took that probate, what did you ask Mrs. Leonard? A. I asked her if she signed 'this paper of her own free 'Will and accord, if she was forced by her husband or any other person, and — ’
“Q. How did she answer ? A. She said she did. I asked her if she was forced by her husband or any other person. She said: 'Nod I says: 'You still assent, then, freely and voluntarily, on your part ?’ She says: 'Yes.’ I asked her: 'Then you still say it is freely and voluntarily, of your own free will and accord ?’
“By the Court: Did you ask her if she still voluntarily assented ? A. I asked her them three questions.
“Q. Did she still voluntarily assent to it? A. She answered them 'Yes.’
“Q. You asked her that, and she answered 'Yes’ ? A. Yes, sir.
“Q. At that time did she say anything about having misunderstood the purport of the paper ? A. She said, while I was there — I don’t know whether to me or to Captain Phil— says: 'When I signed that contract I thought it was for timber only, instead of for the land and timber.’
“Q. Was that after you asked her those questions ? A. I think it was.”

That testimony is plainly susceptible of the construction placed upon it by plaintiff, viz., that, although Mrs. Leonard did not know the option contract covered the land at the time she signed it, yet she was informed of it the same day by her husband, and that she acquiesced, and when the justice came the following week she duly acknowledged and voluntarily assented to the paper, although she stated, after her • privy examination was taken, either to “Captain Phil” or the justice, that, had she known the true nature of the paper in the beginning, she would not have signed it. This is the jirstice’s account of the matter, and it is entitled to great weight. The prayer for instruction was intended to present that phase of *343tbe testimony to tbe jury, and it is supported by Stokes’ evidence. It seems to me erroneous to refuse it. Tbe plaintiff bad a right to bave that phase of tbe evidence presented to tbe WW-

2. Tbe following questions were asked witness Stokes, for tbe evident purpose of corroborating and strengthening bis testimony:

“Q. Would you bave probated that paper, as you bave, had" she said to you at tbe time that she signed it thinking it was a timber deed ?” Defendants objected to tbe question.
“Q. Would you bave probated tbe paper .at tbe time if you bad understood her to say at tbe time that she thought she was signing a timber deed ?”

These questions were excluded by tbe Court, and plaintiff excepted. We think this ruling was erroneous and prejudicial. Tbe evidence was competent, upon tbe ground that tbe judicial-.act of tbe officer was being inquired into, and tbe evidence tended strongly to support and corroborate his evidence and to affirm bis good faith and integrity. Tbe feme defendant having been permitted, over plaintiff’s objection, to state that she told tbe officer at tbe time be took her acknowledgment that she thought she was signing a timber contract instead of a land contract, it was competent in contradiction of this testimony to show that, if she bad made any such statement to him, tbe paper would not bave been probated by him. We cannot imagine any statement that could be more strongly corroborative of tbe accuracy of tbe justice’s recollection than tbe one which tbe excluded questions sought to bring out.

3. Tbe Court erred in charging tbe jury that “Tbe burden of proof is upon tbe defendant in respect of tbe contentions, and tbe finding of either one of tbe issues in her favor must be by tbe greater weight of tbe testimony.” Tbe certificate of tbe justice is in due form, and is also supported by abundant evidence. It can only be attacked by clear, strong, cogent and convincing proof. Benedict v. Jones, 129 N. C., *344472. The court should instruct the jury with the greatest care in cases of this character, and explain to them that the solemn act of a judicial officer is not to be lightly set aside, and certainly not upon a mere preponderance of evidence, but only upon very clear, strong and cogent proof, which should fully convince the minds of the jury. Unless in their opinion the proof comes fully up to this standard, we think the Judges of the Superior Court should not hesitate to exercise their discretion and set aside a verdict which destroys the legal effect of such an important judicial act, and one which is so essential to the security of titles.

4. Much may be said in favor of the contention that, “if the private examination of the wife shall have been certified in the manner prescribed by law,” by the purport of section 956 it is not open to attack at all, except upon the ground that “its execution was procured by fraud, duress of other undue influence,” to which the grantee must be shown to be.a party. In other yrords, it is contended that, if the officer certifies in due form the wife’s voluntary assent, when in fact she refused to give it, it is a fraud perpetrated against the wife and the purchaser both, but one to which the grantee or his agent must be proven to be a party, in order to invalidate the certificate. However that may be, we are of opinion that the certificate of the officer of privy examination of a married woman shuts off all inquiry as to fraud, duress or undue influence in the treaty, unless participated in by the grantee or his agent. It also precludes all inquiry into fraud or falsehood in the factum of the privy examination itself, unless the feme covert can make it appear, by clear, cogent and convincing proof, either that no such examination was had at all, or that on such examination she refused to give her voluntary assent to the execution of the instrument, and so expressed herself to the officer at the time he undertook to examine her. In the case at bar there is no such evidence offered in contradiction of the official certificate, the truthfulness of which has the additional *345support of the clear"and unequivocal testimony of tbe officer who made it. On the contrary, the evidence shows that her entire objections and statements, made when Stokes was at her residence, related, not to the privy examination at all, nor to what she understood at that time, but to her act and mental attitude in respect to the execution of the instrument at the time she signed it, several days before, when Stokes, the justice, was not present.

For the reasons given, we think that there should be a new trial.