Guilford County NcArchives Court.....Rachel Paschal, Thomas Pardon V. 1906
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Connie Ardrey n/a December 4, 2011, 6:33 pm

Source: N C Reports
Written: 1906

Pardon v. Paschal

(Filed November 7, 1906)

Ejectment - Abandonment - Deed by Wife Alone - Exception as to No Evidence

1. In an action of ejectment, where the plaintiff claimed title under the will 
of his wife, and the defendant claimed under a deed executed by the wife 
alone, a charge that "if the plaintiff had permanently abandoned his wife 
prior to and at the time of the execution of the deed to the defendant, it was 
a valid conveyance under Revisal, sec. 2117, and the plaintiff would not be 
entitled to recover," is correct.

2. Where it does not appear in the record that the appellant requested the 
Court to charge the jury that there was no sufficient evidence of abandonment, 
or that he handed up any prayer for instructions, he cannot be heard to raise 
that question by motion to set aside the verdict.

Action by ejectment, by Thomas Pardon against Rachel Paschal, heard by Judge 
G. S. Ferguson and a jury, at the June Term, 1906, of the Superior Court of 
Guilford. From a judgment for the defendant, the plaintiff appealed.

Scott & McLean for the plaintiff.
G. S. Bradshaw for the defendant.

NC Supreme Court Justice Clark, C. J. - The plaintiff claims title to the land 
in controversy under the will of his wife, Sarah Yates Pardon. The defendant 
claims under a deed executed by the wife alone, 4 January, 1904. The Court 
charged the jury that if the plaintiff had permanently abandoned his wife 
prior to and at the time of the execution of the deed to the defendant, it was 
a valid conveyance under Revisal, sec. 2117, and the plaintiff would not be 
entitled to recover. The charge of the Court is clear and free from error upon 
this, the only question at issue on the trial, and presents fully the 
contentions of both parties.

The only exception presented in the brief of the appellant is that there is no 
sufficient evidence of abandonment, and that the Judge should have so 
instructed the jury. It nowhere appears in the record that the plaintiff 
requested the Court so to charge, or that the plaintiff handed up any prayer 
for instructions to the jury. He cannot be heard, therefore, to raise the 
question by motion to set aside the verdict. "If he is silent when he should 
speak, he ought not to be heard when he should be silent." If it is any 
satisfaction to the plaintiff to know it, we will state that an examination of 
the record discloses ample evidence to justify the Court in submitting the 
matter to the jury.

No Error.

Additional Comments:
In the NC Supreme Court Fall Term 1906

File at: http://files.usgwarchives.net/nc/guilford/court/rachelpa2086gwl.txt

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