Opinion
September Term, 1890.
Action to Recover Land — Judgment — Witness — The Code, sec. 590.
1. In an action to recover land bought by the plaintiff at an execution sale, under a judgment obtained by himself, he is not a competent witness to prove the date of the debt on which such judgment was rendered, when the judgment debtor is since deceased and defendant claims under him. Sumner v. Candler, 86 N.C. 71, approved.
2. In such action, if it appear that no homestead was laid off, advantage can be taken of it, though not specially pleaded by defendant. Mobley v. Griffin, 104 N.C. 112, approved.
3. The date of a judgment will be taken as the date of the debt upon which it was rendered, unless the contrary appear of record. Mebane v. Layton, 89 N.C. 396, approved.
ACTION to recover land, tried before Brown, J., and a jury, at May Term, 1890, of CUMBERLAND.
Neill W. Ray for plaintiff.
R. P. Buxton (by brief) for defendants.
The defendants appealed.
The facts sufficiently appear in the opinion.
The plaintiff seeks to recover the land in controversy as purchaser at a sale under an execution issued on a judgment in which he was plaintiff. It appears from the evidence offered by the plaintiff that no homestead was laid off, and that this land was all that the judgment debtor owned. The judgment, obtained before a magistrate and docketed in the Superior Court, was dated 1 April, 1873, and bore interest from that date. It did not show the date of the indebtedness on which it had been rendered. The original papers before the justice, and the note on which judgment had been granted, had been lost. The debt was presumably of the date of the judgment. Hill v. Oxendine, 79 N.C. 331; Mebane v. Layton, 89 N.C. 396. It therefore (182) became material to show the date of the note. Mobley v. Griffin, 104 N.C. 112; McCracken v. Adler, 98 N.C. 400. The judgment debtor was deceased at the time of this trial, and his widow is the principal defendant, having intermarried with the other defendant. The case states: "The plaintiff then proposed to prove by himself the date of the said note and contents thereof, to show when said debt was contracted, in addition to what may be contained in the judgment roll of the Superior Court. This was objected to by the defendant. Objection overruled, and exception by defendant. Plaintiff then testified that the note referred to was dated in 1861, but could not give exact date." It was error to admit this testimony. In Hussey v. Kirkman, 95 N.C. 63, it is held that while a plaintiff in an action may be competent to testify to the handwriting of a deceased person to a paper-writing by which it is sought to charge his estate, he is incompetent to testify to the contents of such paper. In the present case the answer, "The note was dated in 1861," means, clearly, that the paper was executed in 1861, for it is stated that the question was asked "to show when the debt was contracted." This, necessarily, was testimony as to a personal transaction between the plaintiff and the deceased, and incompetent, under The Code, sec. 590. Sumner v. Candler, 86 N.C. 71.
The date of the indebtedness is not stated in the justice's judgment, nor has such judgment been since amended to show it. There was a motion for leave to issue execution, which was allowed, and in stating case on appeal in that case ( Buie v. Simmons, 90 N.C. 9), from the order allowing it, the judge does state, incidentally, as a fact found, that the indebtedness was contracted prior to 1868. Such finding is not in the record proper, but in the statement of case on appeal, and was not as to a matter in issue on the motion. It is therefore not an estoppel. Williams v. Clouse, 91 N.C. 322. The plaintiff evidently (183) thought this, and endeavored to show the date by his own testimony, as above.
Error.
Cited: S. c., 112 N.C. 377; Fulton v. Roberts, 113 N.C. 428; Bright v. Marcom, 121 N.C. 87; McEwan v. Brown, 176 N.C. 252.