Bright v. . Marcom

Clark, J.: When an action is brought by the payee upon the promissory note of a deceased maker, the plaintiff is competent to prove the handwriting of the deceased (Peoples v. Maxwell, 64 N. C., 813; Rush v. Steed, 91 N. C., 226; Ferebee v. Pritchard, 112 N. C., 83; Sawyer v. Grandy, 113 N. C., 42; Summer v. Candler, 86 N. C., 71; Hussey v. Kirkman, 95 N. C., 63; Buie v. Scott, 107 N. C., 181,) because knowledge by the witness of the handwriting of the deceased is no part of the transaction between them, but the same cases hold that the payee would be incompetent to prove that he saw the deceased sign, or the contents of the paper if lost, or the date or circumstances of its execution, since that would be to prove what passed and was transacted between the witness and the deceased. So, also, where the execution of the note is by a cross mark purporting to be affixed by one since deceased, it is not competent for the payee to testify that the cross mark was affixed by the deceased, since that is to testify as to the transaction between them, and as to which the other party is prevented by death from replying. Spivey v. Rose, 120 N. C., 163. The witness to a note, bond or deed is the witness of the parties. He is not a volunteer, but he signs at their request, and must always be called to prove the execution of the writing, or his death shown or his absence accounted for, and even then his handwriting should be shown if possible. Jones v. Brinkley, 2 N. C., 20; McKinder v. Littlejohn, 23 N. C., 66; Carrier v. Hampton, 33 N. C., 307; Miller v. Hahn, 84, N. C., 226; Howell v. Ray, 92 N. C., 510; Angier v. Howard, 94 N. C., 27; Code, Section 1246. Therefore, while the payee is competent -to prove the handwriting of the witness to the note, whether the alleged maker is living or not, he cannot testify, unless the maker *88 is living, that one who purports to have made his cross mark to a paper as witness in fact did make his mark thereto, as tliat would be to testify that, at the request of the deceased maker and himself, the said person was witness to the transaction, thereby proving the transaction. Ballard v. Ballard, 75 N. C., 190. Error.