Opinion
(December Term, 1831.)
1. A deed of gift for slaves, which is not attested by a subscribing witness, is void.
2. An assignment of slaves, not under seal, is void, unless accompanied by a delivery of possession.
3. It seems that a fi. fa. not taken out of the office does not amount to a waiver of a previous levy.
4. An objection arising upon the statement of the ore tenus incidents at the trial, but not taken in the court below, will not be heard in this Court.
5. Cases stated upon an appeal to this Court are similar to reports upon motions for a new trial, in one respect, namely, that if upon the whole case it is apparent the verdict is correct, the judgment will not be reversed, although there may be error in the point complained of. In other respects they are similar to bills of exceptions.
The case of Palmer v. Faucett, 13 N.C. 240, approved.
THIS was an action for trespass, for taking from the possession of the plaintiff two negroes, David and Charlotte. Plea, not guilty, and a special justification under final process to the defendant, the sheriff of Pitt, against the property of one Peyton R. Tunstal. At the trial before Norwood, J., at PITT, on the last spring circuit, the plaintiff produced a deed of gift dated 18 April, 1822, whereby Tunstal, in consideration of the love and affection which he bore to his daughter Rebecca, the wife of the plaintiff, conveyed to the latter the slaves in dispute. This deed was signed and sealed by Tunstal, but was not attested by (172) a witness, and was registered upon proof of the donor's handwriting, and the plaintiff proved a possession of the slaves conveyed by it up to the year 1827. The defendant gave in evidence the record of a suit against Tunstal in Bertie County Court, in which judgment was entered up for the plaintiff at November Term, 1827, upon which a fi. fa. issued to the defendant, tested of that term, and a return made thereon of a levy upon the slaves in question. From August Term, 1828, a second fi. fa. issued, but it did not appear to have come to the hands of the defendant or to have been taken from the clerk's office. From November Term, 1828, a venditioni exponas issued, reciting the levy made upon the first fi. fa. under which the negroes were sold by the defendant, who returned that the sale amounting to more than the debt and costs, he had applied the residue to the satisfaction of another execution against Tunstal from Halifax County Court.
Gaston for plaintiff.
Hogg Badger for defendant.
The plaintiff then offered:
1. A deed from Tunstal to Mark H. Pettaway, dated 22 February, 1826, conveying among other things, "all his, the said Tunstal's, negro slaves, say one hundred and three in number, the names of said slaves being too lengthy to insert in this indenture, said Tunstal will give the name of each slave to said Pettaway when called for." To this deed was annexed a schedule stating that "the names of the negroes contained in the within deed is as follows, viz.," etc., giving the names of a large number, and among them two by the names of David and Charlotte.
2. An assignment and schedule, made and filed by Tunstal, upon taking the benefit of the act for the relief of insolvent debtors, whereby he conveyed all his property not before assigned to Pettaway, to the plaintiff. This was signed, but not sealed, by Tunstal. The defendant objected to this testimony, insisting that it did not affect him, and the objection was sustained by his Honor.
The judge instructed the jury that neither the deed from Tunstal to the plaintiff, nor the possession under it, gave the plaintiff title; that if the deed from Tunstal to Pettaway was valid, it would pass the title of the slaves in dispute to the latter, and the plaintiff (173) could in that event recover of the defendant for the injury done to his possession of the slaves, if the David and Charlotte mentioned in the schedule were the slaves in question. His Honor left this question to the jury, who returned a verdict for the defendant, and the plaintiff appealed.
The Superior Court does not seem to have erred upon any of the points made in that court.
The deed from Tunstal to the plaintiff is void. ( Palmer v. Faucett, 13 N.C. 240.)
The assignment by Tunstal, when he took the oath of insolvency, did not pass the slaves, for it was not by deed, and there was no delivery of possession nor price paid.
The jury have found that these slaves were not included in the schedule annexed to the deed to Pettaway of 22 February, 1826, which is signed by both Tunstal and Pettaway, proved and registered with the deed, and purports to set forth the "names of the negroes contained in the deed of trust."
But it is here contended that the judgment must be reversed because the fi. fa. from August Term, 1828, discharged the seizure made in the preceding January, and consequently that there was nothing upon which the venditioni exponas, under which the sale was made in January, 1829, could operate.
That fi. fa. does not appear ever to have been delivered to the sheriff or taken out of the office. The cases have not yet gone the length that the mere making out of a fi. fa. in the office, not acted upon, nor even issued, shall amount to a waiver or discharge of a previous lien. It would seem unreasonable that it should. But however that may be, we all think the point made does not arise in this case.
(174) The objection was not made in the court below, but for the first time here. It is not one arising out of the record itself, but out of the ore tenus incidents at the trial. I must repeat what was said on this subject in Hemphill v. Hemphill, 13 N.C. 391. Such points of this kind, as were raised below, and those only, can be heard here. This is admitted to be so upon a bill of exceptions. But it is said that our cases are the acts of the court and contain the whole case.
There are, I grant, certain differences between a bill of exceptions and a case stated. The method of correcting the error pointed at in the former, is by writ of error, while in virtue of our statute those specified in the latter are reviewed upon appeal. Each bill of exceptions is confined to a single point, whereas by our practice many and distinct questions may be stated together. And it may be that there is this further difference, that to a limited extent our cases may be regarded as reports on rules for a new trial. I suppose they are so thus far and no farther; that if the cause come here after a motion for a new trial has been overruled, and the case made out appear to contain the whole case made at the trial, and from that it is clear that at all events the verdict must have been the same way, notwithstanding some wrong ground taken by the court, it will not be disturbed. This Court is to give judgment as the court below ought to give; and if, upon the whole case, the appellant was not entitled to a verdict, nor to a new trial at the hands of the Superior Court, no more ought he get it here. If he could, it would involve the anomaly that the Superior Court was legally bound to give a judgment, which this Court is legally bound to reverse. An example of this rule is found in Grice v. Ricks, ante, 62. It was thought here that the instructions actually given by the judge were erroneous. But the case likewise stated that another point was made at the trial for the defendant, on which the judge gave no opinion, and the whole case was set out, including the facts relevant as well to the one point as to the other. The jury found for the defendant, and the plaintiff moved for a new trial and appealed. Had the cause rested on the opinion given, this Court must have reversed the judgment. But (175) it appeared from the facts stated that, whether the ground taken by the judge was right or wrong, the verdict was right upon the other point — not that the jury might have found for the defendant on that point, but that they were obliged so to find, because from a defect of proof the plaintiff had not made a case for a verdict under any circumstances, however the law might be upon the facts which he actually proved. If, indeed, wrong instructions be given, and it do not appear that they were necessarily harmless, a new trial must follow, because the revising court cannot know that the jury would or ought to have given the same verdict had the directions been different. Of the application of this principle, the case of Tate v. Southard, 1 Hawks, 45, is an instance, besides many others. But that is entirely opposed to a case where obviously the jury ought at any rate give the very verdict they have given, although different instructions had been delivered from the bench. It is a fair presumption that the jury gave a proper verdict upon proper grounds. But were that presumption erroneous, there is yet no reason for disturbing a proper verdict — which appears upon the whole case to be proper — because it was rendered upon a bad reason. This comes up to the observation of Lord Mansfield, in Symmers v. Regem (Cowper, 502). Indeed, I suppose that were this a writ of error upon a technical bill of exceptions, and it appeared in the exception itself, that the appellant had no right, the court would affirm the judgment, though some error might have been committed for which a reversal would have been awarded had nothing else appeared. Much more may, and will such be the rule in our appeals, in which the case is argued as upon a motion for a new trial in the court below. Thus far, I think, our cases may be considered as reports on rules for a new trial; that the appellee may insist that the verdict ought to stand, notwithstanding the error complained of, because upon the whole it was right, and does the appellant no injustice; and to that end the appellee may ask other points made by him, besides that on which the error is alleged by the appellant to be stated in the case, accompanied by (176) the facts on which they were raised. But in no case, as I conceive, ought points to be heard here, at the instance of either party, which were not by him made below. For it is not true that our cases are intended, or have been considered as generally setting out the whole case. They are not like a special verdict or a case agreed, in the former of which all the facts are found and in the latter all admitted. Under the former organization of this Court, only particular points of law came here. They might be stated as abstract questions. The duty, as now enjoined, of giving judgment upon the whole record does not impose the necessity of reversing every judgment to which is not appended a case proving it to be right. The case is in the pleadings and the verdict prima facie. The sufficiency of the facts to support the verdict is presumed until the contrary appear. And so of the law: proper instructions and right opinions must be taken as having been given, unless the party specially object to some one given, or the judge refuse to give some one prayed, which must be set down, whether by the counsel or the judge is immaterial, provided it be verified by insertion in the record, accompanied by a statement of such facts as raised the point to which the exception relates. Those facts, and those alone, ought to be inserted at the instance of the party appealing, who must be confined here to his exceptions. Were it otherwise, no party could ever hope to have a judgment affirmed, unless all the proof given in the cause and the whole charge of the court be spread on the record, a task the labor and difficulty of which would be intolerable to the judge and bar and an obstruction to the progress of business, amounting almost to a denial of justice. No facts are necessary, but those which are material to a question made in the course of the trial, or upon the judge's charge. If facts irrelevant to those points be inserted, they cannot be attended to here. They cannot be used for any purpose but that for which they were stated, namely, the point appearing to have been made. (177) This Court cannot tell what other facts might have been proved which would repel their force as applicable to a point made here for the first time. As regards the appellant, at least, the whole case is not opened anew upon the appeal to this Court, but in general our cases for appeals must be regarded as of the nature of bills of exceptions for specified errors.
This reasoning will of course be correctly confined to the ore tenus proceedings of the trial. All those arising upon the pleadings, verdict and judgment — upon the record rightly speaking — may be taken anew here, for but one language and one meaning can be found in them by all courts.
In the case now before us the question on the discharge or the continuing of the lien, created by the seizure in January, 1828, was not made in the Superior Court. None of the facts stated can therefore be taken as stated in reference to that question. When they are pressed here, for the first time, must we not ask ourselves whether we can be sure that those were all the facts which appeared touching the point now made? It may have been proved that the fieri facias from August, 1828, was made out by the clerk without the authority of the creditor, and that he never took it out of the office, or that having at first ordered it, he countermanded it, and never delivered it to the sheriff nor sued it out, or the execution to Halifax mentioned in the return to the venditioni exponas (to which a part of the money raised by the sale was applied) may have been given in evidence and been a sufficient authority to the sheriff. The questions made were not upon the authority of the sheriff to sell Tunstal's property. The whole dispute was, whether the slaves were Tunstal's at all, so as to be liable to any execution that could issue on the judgment in Bertie. The plaintiff cannot here, upon the facts stated to raise that question, allege that the judgment is erroneous, because those facts do not prove the judgment right upon the other point also, or indeed upon any other possible objection that might be ingeniously started. If any particular matter be not excepted to, it must be taken either that it was waived by the appellant, or that it was in the court below otherwise well and sufficiently answered (178) or avoided. Any other rule would convert this Court from one of revision to one of reversal ex necessitate. I am persuaded it was created for a very different purpose. Our duty is to set aside verdicts, when they have been or may have been the consequences of errors actually committed by the judge. But it is equally our duty to suppose that verdicts do right between the parties (which presumption is much fortified when they are satisfactory to the judge who tried the cause and who refused a new trial), and to give judgment in accordance with them, unless they appear to be founded in error in law — which it lies on him who impeaches them to show.
PER CURIAM. Judgment affirmed.
Cited: Norwood v. Marrow, 20 N.C. 578; Honeycutt v. Angel, ibid., 452; Hollowell v. Skinner, 26 N.C. 173; S. v. Gallimore, 29 N.C. 149.