Brooks v. Shook, 147 N.C. 630 (1908)

May 20, 1908 · Supreme Court of North Carolina

147 N.C. 630

JOHN BROOKS et al. v. DAN SHOOK et al.

(Filed 20 May, 1908).

Evidence — Admissions—Declarations, Incompetent.

When, in locating a comer oí land in ejectment proceedings, plaintiff: was asked on cross-examination, for the purpose of a quasi admission, if B., the one under whom he claimed, was present at the time of a certain survey, which was negatived by his answer, it was incompetent on redirect examination for the witness to state that on that occasion B. said the true corner was not there, but where plaintiff now claims, as this was his testimony of a declaration made by B. in his own interest.

ActioN tried before Cooke, J., and a jury, at May Term, 1907, of Buncombe.

Plaintiff appealed.

Zebulon Weaver and F. W. Thomas for plaintiff.

Frank Garter, IT. G. Ghedester and Wells & Bwain for defendant.

ClaeK, C. J.

Ejectment, the crucial question being the location of a certain corner. The plaintiff, on cross-examination,'was asked if George Brooks (now long deceased), under whom his title was derived, was not present when the survey was made from the corner now claimed by defendant. The witness replied that he was, and “objected to the survey and said, ‘You are running from the wrong point.’ ” The object of the question was, of course, to get a quasi admission against the interest of George Brooks, and the answer of the witness completely negatived such admission. The plaintiff excepts because, on redirect examination, he was not allowed to state that George Brooks on that occasion further said that the true corner was where the plaintiff now claims. This was a declaration in his own interest, and incompetent. The plaintiff relies on the principle.that, the defendant having called out part of a conversation, he is entitled to the balance. But the defendant • did not call for any conversation. He sought to get the benefit of a quasi admission from the presence of George Brooks at the former survey and his not making objection. The witness having answered that George Brooks did .make objection, saying this was the wrong point, there is no reason why the plaintiff should be allowed to go further .and bring out evidence of declarations of George «Brooks in his own favor as to where the corner really was. It is enough that the witness negatived any inference from George Brooks’ presence that he admitted that it was at this place.

No Error.