Loftin v. . Loftin

Davis, J., (after stating the facts). The exception to the testimony of the plaintiff, upon the ground that it was not admissible under §590 of The Code, cannot be sustained. It was no personal transaction or,, communication between the witness and any deceased person of the class mentioned in this section. She derived no title or interest 'from, through, or under William Gooding, nor did any party in any way interested in this suit, derive any such title or interest through him. She did not testify to any transaction or communication with Lewis M. Loftin or Durant Jackson. No title is derived through Wm. Gooding, and neither Loftin nor any one else was present when the money was given to her, and it was competent for her to testify that at a particular time she had $450 or $500, and that it was given to her by her father. It was a substantive transaction, with no one now deceased, under whom she, or any of the parties to this action, derived any interest. It was a transaction with Wm. Gooding alone. Loftin was not present, and the case of Hallyburton v. Harshaw, 65 N. C., 88; and Ballard v. Ballard, 75 N. C., 190; relied on by counsel for the defendant, are distinguishable from this, in that, in Hallyburton v. Harshaw, the communication, though not between the witness and Harshaw, the deceased testator, yet it was between Harshaw and Pearson, (both of whom were dead,) about the matter in dispute, and the witness and Harshaw had, by agreement, gone to Pearson to advise with him about it, so *100 in factvthe witness was the party really interested in the conversation between Harshaw and Pearson, and though the conversation was carried on by Harshaw and Pearson, the witness was present, and in fact a party to it, as it related to advice given by Pearson, upon which they were to act. In Ballard v. Ballard, Wooten, a party to the transaction, was called to prove that he saw the attesting witness sign his name as a witness. The second exception was to the Judge’s charge as to the degree of proof required to establish the existence of the deed alleged to have been destroyed. In Deans v. Dortch, 5 Ired. Eq., 331; which was instituted in the Court of Equity to recover the amount of a lost bond, the Court held, that it was necessary for the plaintiff to show the loss of the bond; that it had been sealed and delivered by the party sought to be charged, and was perfected in all its parts; and that it was the duty of the plaintiff to sustain his allegation by “ sufficient testimony.” In Fisher v. Carroll, 6 Ired. Eq., 485; which was also to recover the amount of a lost note, the Court said, that “ strict” proof was required. In Plummer v. Baskerville, 1 Ired. Eq., 252; which was to set up a lost deed, it was held, that the plaintiff must produce “proper and full proof — that he must clearly prove that such a deed once existed; its legal operation, and its loss, before a decree would be made to establish it.” In this case, the Court charged the jury, that the plaintiff must “ clearly satisfy ” them of the existence of the deed, before they could find the sixth issue in her favor. We think there was no error in the charge of the Judge. In Ely v. Early, 94 N. C., 1; it is said that the Court would not correct an alleged mistake in a deed, unless it was made to appear “ by clear, strong and convincing proof,” and by analogy the lost deed should only be established upon clear and satisfactory proof that it once existed and was lost. There is no error. Judgment affirmed. No error. Affirmed.