Opinion
(December Term, 1840.)
1. This Court will presume the judgment of the court below to have been right, unless error be shown; and it is the duty of the appellant to furnish the Court with the means of ascertaining such error.
2. Surprise on the trial furnishes no ground for the interference of this Court. That is a matter for the consideration of the court below on a motion for a new trial.
3. The refusal of a new trial cannot be assigned for error.
4. A lease of land for a term of years need not be registered.
EJECTMENT, tried at Fall Term, 1839, of ANSON, before Toomer, J., when a verdict was rendered for the plaintiff. A motion on the part of the defendant for a new trial was overruled, and judgment pronounced by the court for the plaintiff, from which the defendant appealed. The case is stated by the Court in delivering their opinion.
Winston and Strange for plaintiff.
Mendenhall for defendant.
The case made out for this Court, which is to be regarded in the nature of the appellant's bill of exceptions, states that the defendant gave in evidence a deed of bargain and sale of the land in dispute, executed to him by Sarah Martin, who had a life estate therein, on 26 April, 1828, "a copy whereof is attached and made a part of the case," and also a deed containing a contract of lease, written on the same sheet of paper and bearing the same date, executed by him to the said Sarah, "a copy of which is also attached and made a part of the case." But no copy of either of the deeds is attached, nor is there any other description of either of them, or any statement of their contents. In the hope of obtaining a more complete transcript, we issued a certiorari; but the return in no manner supplies these defects. As, therefore, we are to presume the judgment below right, until error is shown, and as it is the duty of the appellant to furnish us with the means of ascertaining whether error does or does not exist, we feel ourselves (277) bound to understand the deeds referred to as warranting the operation and construction which the court below gave to them, unless such operation and construction could not legally be attributed to deeds of that character.
The case, then, as it appears on the trial, was that Sarah Martin, the tenant for life, duly conveyed her estate to the defendant, who immediately thereafter leased the premises to the said Sarah; that the said Sarah's interest in the land was duly levied upon and sold under execution, and conveyed to the lessor of the plaintiff. There was a controversy between the parties, whether the conveyance to the defendant by Sarah Martin was not fraudulent and void against the plaintiff, claiming under one of her creditors; but the plaintiff insisted, however that might be, he was entitled to recover, because, if that conveyance was valid, the lessor of the plaintiff had acquired Sarah's interest under the lease from the defendant. And his Honor so instructed the jury. If the lease were a valid one, and the term thereby granted had not expired, clearly this instruction was just. We see nothing to show that the term had expired. The case does not set forth that such an objection was raised. Nor do we see any objection raised to the validity of the lease on the trial. It was indeed contended, on the motion for a new trial, that the lease was invalid because it did not appear to have been proved and registered, as is required by law for the conveyance of lands. The refusal of a new trial cannot be assigned for error. That motion was addressed to the sound discretion of the judge, and it was for him to say whether he would listen to an objection which had not been raised on the trial and which was made to the validity of an instrument by the party who had himself introduced it. Besides, if the lease were for a term of years, registration is not necessary to its validity.
The alleged surprise on the plaintiff as to the legal effect of the lease is a matter of which we can take no notice, Lindsay v. Lee, 12 N.C. 464, and the question respecting the admissibility in evidence of the report of the commissioners to the county court of Anson upon the state of Sarah Martin's accounts, as the administratrix of her (278) deceased husband, become wholly immaterial, unless the defendant can show that the judge erred in instructing the jury to find for the plaintiff, although Sarah Martin's conveyance to the defendant were bona fide.
PER CURIAM. No error.
Cited: Stewart v. Garland, post, 472; Glenn v. Peters, 44 N.C. 458; S. v. Mills, 91 N.C. 593.