Lord v. . Beard

ByNüm, J. Án original action begun by summons and complaint. In 1859, the land of the feme plaintiff was sold by the clerk and master under a decree of Court, made in a. suit in equity instituted in her name, and the defendant, became the purchaser. The clerk and master after the sale became the guardian of the feme plaintiff, and in 1863, the defendant executed to him as guardian a note for the purchase money, bearing interest from the date of sale, which note the guardian endorsed to the feme plaintiff in 1876, after her marriage with the male plaintiff. So that in this, action we have the same person as plaintiff, who was plaintiff’.in the original suit for the sale of the land, and .the same person as defendant, who was the purchaser at that sale. The objection is made to the jurisdiction of the Court, and it is fatal to the action. It has been repeatedly held by this Court, that a party can not resort to a new action, where the relief he demands can be. had by motion or proceeding in the original action, and emphatic warning has been given against the error of seeking .relief by a separate action in such cases. ■ . •' In the earlier stages of the practice under the .Code of Civil Procedure, before the profession had fairly adjusted themselves to the new practice, the summons and complaint were sometimes treated as a motion in the cause, as in the cause of Jarman v. Saunders, 64 N. C. 367. But'in the subsequent case of Faison v. McIwaine, 72 N. C. 312, referring to Jarman v. Saunders and speaking for the Court, RodmaN, 'J. said: “ In this last case, a proceeding like the present was. *10 regarded as a motion in the original action, but the decision ■on that point of practice was there put on the ground, that ■the Code had been but recently introduced, and the practice ■arising out of it could not be supposed to be known to the profession universally. That excuse for irregularity should by this time have ceased to exist.” In Council v. Rivers, 65 N. C. 54, a civil action was brought to recover the amount of a bond given for the purchase of a tract of land sold by the clerk and master under the order of the late Court of Equity; it was held that the action ■could not be sustained, because the Superior Court has under the present system succeeded to the jurisdiction of the Court of Equity, and has plenaiy power by an order in the cause to compel the purchaser to pay the debt, and the action was dismissed. The same principle is announced in Mason v. Miles, 63 N. C. 564; Mauney v. Pemberton, 75 N. C. 219; Chambers v. Penland, 78 N. C., 53. But it is insisted that where the sale has been made by the clerk and master, and the bond for the purchase money bias been executed to the guardian of the ward, or by him assigned as in this case to the ward, the latter can sustain an original action. We perceive no reason for the distinction. The rights and remedies of the parties remain the same. It is still the same feme plaintiff whose land was sold, proceeding by a new action against the purchaser for the purchase money, and seeking to subject the land to its payment. The jurisdiction of the Court can not be shifted by a change in the payee of the note, which, is only technical at most, and the effect of which is merely to convey the legal title in the note to the true owner. But without reference to the practice under the Code, by recurring to the practice in equity prior to the Code, it is seen that the same rule prevailed, that the remedy must be .sought in the original suit, else the new action would be ■dismissed. *11 In Rogers v. Holt, Phil. Eq. 108, the bill recited that a petition for a sale of land had been filed and was still pending in the same Court, and that the money was still due by ■the purchaser; and prayed that inasmuch as the price bid was based upon Confederate currency, the purchaser and his ■sureties should be decreed to pay its reasonable value; it was held that as this relief was no other than might have been had in the petition then pending, the bill would not be entertained, and it was dismissed. The case of Singeltary v. Whitaker, Phil. Eq. 77, was similar to the present, and is an answer to the claim of jurisdiction here, because the notes are made payable to the guardian. There, laud had been sold under a petition in the name of an infant. The sale was confirmed and the master ■ordered to collect the note when due, and upon payment, to make title. At another term the Court ordered the master to pay the note over to the infant’s guardian. This was done and the master made title to the purchaser. On a petition Jiled in the cause by the infant on coming of age, praying that the land might still be held subject to the payment of the purchase money, it was held that the deed was irregular ;and invalid, and that the petitioner was entitled to relief. It was insisted in that case that the transfer of the note by the master to the guardian, destroyed the lien upon the land, but it was held, otherwise. See also Cotten Ex Parte, Phil. Eq. 79; Gee v. Hines, Ib. 315; and Emerson v. Mallett, Ib. 234. "What was the regular course of proceedings in suits in ■equity prior to the Code, is now, under the Code, the' established practice in all judicial proceedings without reference to their equitable or legal nature. Reid v. Pass, 11 Ire. 589. The plaintiffs contend, however, that the original suit in •equity under which the land was sold in 1859, is not now pending, because not having been docketed pursuant to C. <0. P., §§ 400, 401, it has abated, and no motion can now be *12 made in the cause. But it has been repeatedly held by this-Court, that an action is pending until the final judgment in. the cause is satisfied, or until the plaintiff has obtained the-fruits of his recovery. Johnson v. Sedberry, 65 N. C. 1. Section 401 of the Code is not self-executing, but the action can be abated only on motion of a party, and by the-judgment of the Court, as was held in Moore v. N. C. R. R. Co., 74 N. C. 528. No such judgment having been given in this case, in fact and in contemplation of law, the original action is still pending, and under the various remedial statutes can be, upon the application of the party, brought forward upon the docket, and be proceeded in by any appropriate motion. The plaintiffs can not be allowed to prosecute a new action by alleging their own default in not keeping upon the docket the original suit. As in another trial the same exceptions to the testimony admitted, and to the charge of the Court may arise, as have been presented in this, it may be best to decide them now:— 1. Mrs. Beard having been examined as a witness in her own behalf, .and it appearing that she was an aged woman and had had an attack of paralysis, Dr. Summe'rell was examined in her support, and testified that he knew her well, and had seen her about fifteen months subsequent to ■ her paralytic attack, and that lie could then discover no ■impairmént of her faculties. On cross-examination the plaintiff proposed to ask the- witness, if paralysis did not have .a tendency to impair the mind, in old persons. The evidence was objected to by the defendant, but was admitted by the Court, and the witness answered that it did have that tendency.' The evidence was admissible. There was a direct conflict of testimony between Blackmer and Mrs. Beard, and it was material -for the jury to know which of the two was more reliable; and to that end it was competent for an expert to testify as to the tendency of a disease with which she was affected, to impair those faculties of *13 -the mind, the full possession of which most fit a witness to give exact and truthful testimony. 1 Greenl. Ev. 552. The evidence of the expert went to weaken the force of the testimony of Mrs. Beard. 1 Starkie Ev. 824. 2. Mrs. Beard had sworn in her examination that she had paid the note sued on in October, 1863, and that a deed was executed to her; and Julia Beard, her daughter, was introduced and confirmed her mother by testifying that she was present when Blackmer received the money in satisfaction of the debt, and executed the deed. • On cross-examination the witness admitted, on its being shown to her, that she had written a letter to Blackmer, dated in May, 1869, which was read to the jury, and insisted to be contradictory to her evidence as to the payment of the debt to Blackmer, and the execution of a deed by him. Upon this part of the case His Honor charged; “That it was for the jury to say whether the letter written by Julia Beard, dated May 5th, 1869, was inconsistent with any idea that Blackmer had made any deed for the premises to the defendant.” The only effect the letter could have was to weaken or discredit the testimony of the witness; and it was not admissible as evidence that Blackmer liad not made a deed for the premises to the defendant. To give it that effect would be to make it'substantive evidence as' to the matter in controversy. The charge was therefore erroneous and calculated to mislead the jury,' falling directly within the principle decided in Henson v. King, 2 Jones 385; Luther v. Skeen, 8 Jones 356; State v. Davis, 78 N. C. 433; 1 Starkie Ev. 238-41. Error. PeR Curiam. Judgment reversed and action dismissed.