Cleveland County NcArchives Court.....David Justice, L. M. Hopper & Wife V. 1892 ************************************************ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm http://www.usgwarchives.net/nc/ncfiles.htm ************************************************ File contributed for use in USGenWeb Archives by: Connie Ardrey n/a December 22, 2011, 6:50 pm Source: N C Reports Written: 1892 L. M. Hopper & Wife v. David Justice Correction of Deeds - Code - Lost Records - Parol Evidence 1. It is not proper to correct by parol testimony a certified copy of a deed as recorded by showing that the original, with was lost, had a different description. 2. The Code, #1266, provides for the correction of errors in registration by petition, and proceedings wherein interested persons and adjoining land holders are made parties, and in such cases the statutory proceeding is exclusive. 3. The statutory method of restoring lost records does not exclude parol proof of their contents, which is then the best evidence the nature of the case affords. 4. Section 1251 of The Code, providing that the original and not a duly certified copy of a deed is the proper evidence when there is a rule of Court suggesting material variance between the original and the registration, is not applicable to this case. 5. Without being allowed to correct, in the way proposed, the certified copy or the registration, the plaintiffs were entitled to establish and identify lines and boundaries which would correspond with the proposed correction. This was an Action to try title to land, tried before Bynum, J., and a jury, at the Spring Term, 1892, of the Superior Court of Cleveland County. The pleadings show the contention of the parties. The plaintiffs, as part of their claim of title, introduced a certified copy of a deed from Richard Covington to Thomas Wilson, made October 29, 1842, the fourth call of which said copy of said deed was as follows: "Thence S. 10 degrees W. 170 poles to a stake"; and the fifth call of said copy of said deed read as follows: "Thence south 66 E. 26 poles to a post oak." Plaintiff then introduced, as part of their chain of title, a certified copy from the Register of Deeds office of Cleveland County of a deed from Thomas Wilson to C. O. Wilson, said deed dated May 20, 1861, and the fourteenth (14th) call of said certified copy is as follows: "Thence S. 10 degrees W. 70 poles to a stake;" and the fifteenth call as follows: "Thence South 66 East 26 poles to a post oak." The plaintiffs then proposed to prove by one Hoyle, a surveyor, that in surveying the calls of this deed he did not have the copy introduced in evidence, but that he had the original deed executed by Thomas Wilson to C. O. Wilson, and that the call in the original deed from Thomas Wilson to C. O. Wilson was South 10 degrees W. 170 poles to a stake, and not South 10 degrees W. 70 poles to a stake as set out in the certified copy. Plaintiffs stated that they expected to show, for the purpose of making this parol evidence competent, that the original deed from Thomas Wilson to C. O. Wilson had been lost by their attorneys since the bringing of this suit; that they expected further to show by witness, that by running said call 170 poles, a proper connection is made with the beginning, and that it covers the land in controversy, and that by stopping at 70 poles no proper connection was made with the beginning, and that it would not cover the land in controversy; and further, that this would show that there was an error in the registration of the deed by the Register. Defendant objected to the introduction of the parol evidence to contradict the certified copy introduced. The objection was sustained, and the plaintiffs excepted. Plaintiffs also proposed to prove by the witness that the fifteenth call in the original deed from Thomas Wilson to C. O. Wilson was not "S. 66 E. 26 poles to a post oak, as set out in the certified copy, but that the registration was incorrect, and that the original was 'S. 66 W. 26 poles to a post oak.'" Defendant objected; sustained; the Court remarking to plaintiff's counsel, that while he excluded the testimony, the plaintiffs might, and it was proper for them to extend the line from 70 to 170 poles, and to change the course of the second call above set forth from East to West by establishing any corner lines, that would satisfy the jury, by a preponderance of testimony, that the proper location is found by extending the line to 170 poles, or by changing the course from east to west. Upon the exclusion of the testimony of the said Hoyle, the plaintiffs took a nonsuit and appealed. E. C. Smith for plaintiffs M. H. Justice for defendant NC Supreme Court Justice MacRae, J. - The proposition of plaintiffs was to prove that there is a mistake in the copy from the registration book which they offered in evidence as a link in their chain of title, by which, instead of 170 poles, as it was in the original, it is written 70 poles in the registration. And, to prove this error, they offered to show by a witness that he saw the original deed, and that it was written 170 poles. And they stated that they then expected to prove that the original deed was lost. (see court case for judge's full findings) No Error Affirmed Additional Comments: In the NC Supreme Court September Term 1892 File at: http://files.usgwarchives.net/nc/cleveland/court/davidjus2162gwl.txt This file has been created by a form at http://www.genrecords.org/ncfiles/ File size: 5.6 Kb