Currin v. . Currin

*817 Seawell, J. Two questions were stressed, by tbe defendant in tbe argument of tbis case: Should not tbe court have submitted to tbe jury an issue relating to tbe bar of tbe statute of limitation? Was tbe defendant entitled to bave admitted in evidence bis testimony as to tbe declarations of D. F. Currin, wbicb be claims tended to show that tbe plaintiff purchased tbe note, if at all, after its maturity and subject to tbe equities wbicb existed in favor of tbe defendant? 1. If tbe note was without seal, then tbe three-year statute of limitation, C. S., 441, applies and action is barred. If under seal, tbe ten-year statute of limitation, C. S., 437 (2), applies, and tbe action is not barred. Williams v. Turner, 208 N. C., 202, 179 S. E., 806. Tbe note is, upon its face, a sealed instrument, since tbe word “seal” appears after tbe signature in tbe usual place. Tbe defendant admitted tbe execution of tbe note, wbicb admission carries with it, amongst other things, tbe burden of showing that be bad not adopted tbe seal. We do not think tbe negative testimony of tbe defendant, above set out, amounts to evidence regarding tbe fact of adoption. But upon tbis, defendant’s counsel propounded tbe question: “I will ask you to state whether or not, Mr. Currin, if you intended when you signed that note to adopt tbe word ‘seal’ ?” Tbis question was excluded and defendant excepted. Tbe record does not show what tbe witness would bave said. Exceptions of tbis kind are unavailing because of tbe obvious impossibility of tbe court to divine what answer would bave been given. Everett v. Williamson, 107 N. C., 204, 12 S. E., 187; 64 C. J., p. 223, section 237; 26 R. C. L., p. 1057, section 64, and cases cited. 2. Ordinarily, tbe bar of tbe statute of limitation is a mixed question of law and fact. But upon tbe admissions of tbe defendant that be executed tbe note, as made, and upon inspection of tbe instrument, tbe question of tbe statute became a matter of law, especially in tbe absence of evidence to be submitted to tbe jury as to tbe non-adoption of tbe seal. Failure to submit such an issue upon tbe evidence in this case will not be held for error. Moody v. Wike, 170 N. C., 541, 543, 87 S. E., 350; Ewbank v. Lyman, 170 N. C., 505, 87 S. E., 348; Garland v. Arrowood, 172 N. C., 591, 594, 90 S. E., 766; Phillips v. Lumber Co., 151 N. C., 519, 521, 66 S. E., 603; Cherry v. Canal Co., 140 N. C., 422, 53 S. E., 138; Butts v. Screws, 95 N. C., 215. Tbe special manner in which tbe statute is pleaded is worthy of note. The bar is made to depend upon tbe fact of non-adoption of the seal to tbe note, tbe proof of which, after tbe admission by him of its execution, in tbe form made, is a burden of tbe defendant. Plaintiff’s evidence tended to show that she purchased tbe note for value before maturity, from her husband, D. F. Currin, without tbe *818 knowledge of any defect therein, and that she is the innocent bolder thereof in due course. Defendant sought to refute this evidence by testifying to a conversation which he had with D. F. Currin, admittedly the former holder of the note, tending to show that the latter still held the note after its maturity. Ordinarily, when other conditions appear, such as are- noted below, such conversation might have been admitted if directed toward some declaration against interest by a person who held the note at the time of the declaration. Wooten v. Outlaw, 113 N. C., 281, 18 S. E., 252. This is a relaxation of the rule against hearsay evidence, depending solely upon the principle that the declaration is against interest; but the fact of the possession is an independent preliminary question as to a condition essential to its admission. When offered solely for the purpose of affirmatively showing that he did hold the note at the time, it is but hearsay and inadmissible. At any rate, such evidence is ordinarily admissible only where the declarant is dead or insane or otherwise unavailable. 20 Am. Jur., p. 467, sec. 556. The evidence was properly excluded. Other exceptions pertinent to the second issue are not argued in the brief and, therefore, are deemed to have been abandoned. We do not regard the other assignments of error sufficient to justify a new trial. No error.