Morse v. Freeman, 157 N.C. 385 (1911)

Dec. 13, 1911 · Supreme Court of North Carolina

157 N.C. 385

H. B. MORSE et al. v. J. B. FREEMAN.

(Filed 13 December, 1911.)

1. Deeds and Conveyances — Title—Common Source — Color- of Title —Evidence, Conflicting — Nonsuit.

In an action involving tbe title to a lappage of land by deed, both parties claiming from a common source, it was admitted that the plaintiff’s deed covered the locus in quo, the plaintiff asserting owmership by reason of seven years adverse possession under color of title. Upon conflicting evidence as to defendant’s possession: Held, a motion to nonsuit was properly overruled.

2. Evidence — Maps.

An unofficial map may be used by witnesses to illustrate their testimony, and in this case the one objected to was enlarged by the surveyor from the court map, who testified to its correctness, without evidence to the contrary, and without objection, and it was Held, no error.

3. Deeds and Conveyances — Calls — Course and Distance — “Lap-page” — Color of Title.

The plaintiff and defendant claimed the locus in quo from a common source of title, the lands admittedly a lappage within the description of both deeds, the defendant’s deed being senior in date and registration, and describing the line in dispute as “along the upper edge of the cliff ... in a westwardly direction to the beginning.” There was conflicting evidence as to whether there was a line of “cliffs” coming within the description, and it appears that if “course and distance” governed, the line would go straight to the beginning and exclude the locus in quo from defendant’s deed. An instruction held correct which substantially charged, (1) that in fixing the disputed line the course and distance would control if under the evidence the jury should find there were no cliffs that would fit the description in'-the defendant’s deed; (2) that if the plaintiff had been in possession of the lap, or any part thereof continuously, adversely, notoriously, and exclusively for seven years next before the institution of the action, it would ripen the title to the lands in the plaintiff.

4. Appeal and Error — Assignments of Error — Objections and Exceptions.

An assignment of error not based on any exception appearing of record will not be considered on appeal.

Appeal from Lane, J., at February Term, 1911, of Ruthee-eoed.

Tbis is an action to recover possession of a tract of land, wbicb was commenced on 30 December, 1909.

The defendant denies the plaintiff’s title, but admits that he is in possession of a part of the land described in the complaint.

Both parties claim under deeds from J. B. Ereeman,. the deed ■ under which the defendant claims being senior in date and registration.

The deed to the plaintiff is dated 12 December, 1902, and it is admitted that it covers the land in controversy.

The plaintiff offered evidence that he had used the property (a part of the Chimney Eock property) for scenic purposes since the date of his deed, and that he had kept men on it as watchmen and toll-keepers all the year.

The principal contention between the parties is as to the location of the last call in the defendant’s deed, “thence along the upper edge of the cliff, above Chimney Eock, in a westerly direction to the beginning,” the defendant contending that there was a line of cliffs which the call in the deed would follow, and the plaintiff that there were no cliffs, and that the last line would go straight to the beginning.

If the line is run straight to the beginning, it does not cover the land in controversy, and the evidence was conflicting as to whether there was a line of cliffs.

There was no evidence when the defendant entered into possession. The jury answered the issues in favor of the plaintiff, and from a judgment entered thereon, defendant appealed.

Smith & Shipman for plaintiff.

McBrayer, McBrayer ■& McRorie for defendant.

AlleN, J.

The motion to nonsuit was properly overruled. As both parties claimed title under a common source, the decision of the controversy between the parties depended upon two facts:

1. Did the deed of the defendant cover the land ?

2. If so, had the plaintiff held the land adversely for seven years under his deed?

If the deed of the defendant did not cover the land, the plaintiff was the owner, because both claimed under Freeman, and it was admitted that the land was included in the deed of the plaintiff. If the deed of the defendant did include the dispute, the plaintiff was the owner if he had held possession adversely for seven years under his deed.

Evidence was offered to sustain both contentions of the plaintiff, and, therefore, a judgment of nonsuit could not have been entered.

During the trial the surveyor was allowed to post up in sight of the court and jury a map made on a large scale, purporting to be a copy of tbe court map, and tbe witness was allowed to refer to said map as a matter of demonstration, after tbe surveyor bad stated tbat it was a facsimile or reproduction on a large scale of tbe court map. Tbe use of tbis map by tbe witness and by tbe attorneys in tbe examination of tbe witness was objected to by defendant’s counsel.

It does not appear tbat any exception was entered by tbe defendant to tbe use of tbe map, but if it bad been done, we tbink no error was committed. An unofficial map^ may be used by a witness to illustrate bis testimony, and it can make no difference tbat it is posted on a wall, but in tbis instance tbe map was simply an enlargement of tbe one made under order of tbe court, and there is no suggestion tbat it was not correct.

Tbe defendant also excepts to tbe following parts of tbe charge, which, in our opinion, are well supported by tbe authorities :

1. But if you find from tbe greater weight of tbe evidence tbat there are no natural boundaries, or, in other words, cliffs, or no such cliffs in no such place as are called for, and you, calling to your aid all tbe evidence in tbe case, are unable to locate tbe objects; and you find further tbat tbe last call in tbe deed is a straight line from tbe stake at figure 5 on tbe map to tbe beginning, you will answer tbe first issue “Yes,” since where tbe natural objects or boundaries have not been fixed and ascertained, then course and distance must govern tbe jury in fixing tbe line; therefore, if you locate tbe line by course and distance, you will find for tbe plaintiff. •

2. Tbat if tbe jury should find for defendant on tbe location of bis deed, still if tbe jury shall find from tbe evidence tbat tbe plaintiffs have, claiming under their deed, been in tbe possession of tbe lap, or interference, or any part thereof, continuously, adversely, notoriously, and conclusively for seven years before tbe suit was brought, 30 December, 1909, no other person being seated on tbe lap, tbis would ripen tbe plaintiff’s title, and be should recover.

There is one other assignment of error, but it is not based on any exception appearing in tbe record, and therefore cannot be considered. Thompson v. R. R., 147 N. C., 412.

Tbe assignments of error are for tbe purpose of grouping exceptions already taken, and not to introduce new exceptions.

Upon an examination of tbe whole record, we find

No error.