Sullivan v. Blount, 165 N.C. 7 (1914)

Feb. 18, 1914 · Supreme Court of North Carolina

165 N.C. 7

Mrs. LAURA SULLIVAN v. GEORGE W. BLOUNT et al.

(Filed 18 February, 1914.)

1. Déeds and Conveyances — Boundaries—Evidence—Declarations.

Declarations are competent as tending to show tbe lines and corners stated in a deed, when the declarant is dead at the time they were offered in evidence, when made by him before a controversy had arisen as to the boundary, and when he was disinterested at the time he made them.

2. Same — Adjoining Owner — Interest.

Declarations made by an adjpining owner of lands to the . locus in quo of corners and boundaries are not incompetent when not made in his own interest, and otherwise competent.

3. Deeds and Conveyances — Boundaries—General Reputation — Remoteness — Evidence.

• Evidence of general reputation is competent in the location of private boundaries if the reputation had its origin at a time comparatively remote, had existed before the controversy, and attached to some monument of boundary or natural object, in this case a holly tree; and a period of forty years is held to be-remote within the meaning of the law.

4. Same — Corroborative Evidence.

Where declarations of the location of a corner or boundary-stated in a deed is sufficiently remote and otherwise competent, evidence of a doclaibtion subsequently made is competent in corroboration.

5. Deeds and Conveyances — Boundaries — General Reputation — Ownership of Lands — Evidence.

While evidence of , reputation may be competent to locate a corner or boundary given in a deed, it cannot be admissible to prove ownership- of the land.

Appeal by defendants from Qonnor, J., at September Term, 1913, of MartiN.

Tbis is an action to recover the value of certain timber trees, cut by the Plymouth Lumber Company on certain land claimed by the plaintiff Sullivan and the defendant Blount, who own adjoining tracts of land.

The real dispute, and upon which the whole case depends, is as to the location of the beginning comer of the land of the plaintiff, known as the Sandy Bottom tract, which is described in the deed as a holly, the defendant claiming that the holly is at the figure 1 on the plat, and the plaintiff that it is at the letter A, which is east of the figure 1.

The plaintiff, among other things, testified: “About forty years ago, when I was a girl, I was riding with Rev. Clayton Moore, who owned a tract of .land adjoining Bandy Bottom,’ the land defendant now owns. Rev. Moore is now. dead. There was then' no controversy about this beginning corner, nor the other boundaries'of 'Sandy Bottom’ tract, and he had no interest in the 'Sandy Bottom’ tract of land. On this occasion he pointed' out this holly, now claimed by me, and told me it Was the corner of his land and the corner of 'Sandy Bottom’ tract of land.”

Defendant Blount objected, because it appeared that he owned at the time an adjoining tract of land, and that he was interested in locating the holly as the corner of his own land.

Objection overruled, and defendant Blount excepted.

She further testified: “That she knew Mr. Goodman Darden, an old man who lived in the neighborhood and owned land adjoining the 'Sandy Bottom’ tract on the east. He has been dead many year’s; had no interest in the 'Sandy Bottom.’ tract; and many years ago, when there was no controversy about the beginning comer or other boundaries of 'Sandy Bottom’ tract, he pointed out to me tbe holly now claimed by me as tbe beginning comer of tbe Sandy Bottom tract of' land and as one of tbe corners of bis land.”

Tbe defendant Blount objected on tbe ground that it appeared be owned' an adjoining tract of land, and was interested in locating bis own corner. Objection overruled, and defendant Blount excepted.

D. Allen, a witness for plaintiff, testified: “Am 56 years old. My father, wbo bas been dead many years and bad no interest in 'Sandy Bottom’ tract of land or its boundaries, and wben there was no controversy about tbe beginning or other boundaries of 'Sandy Bottom’ tract, pointed out to me tbe holly as now claimed by Mrs. Sullivan as tbe beginning-corner of Sandy Bottom tract of land.. That wben I can first recollect, more than forty years ago, this holly was, by common reputation in .the neighborhood, known as tbe beginning corner of tbe 'Sandy Bottom’ tract of land. It is an old holly, and looked forty-five years ago about as it does now. Was, wben I can first recollect, marked as a corner. Tbe marks on it were then old. My father owned land adjoining 'Sandy Bottom’ tract on tbe east.”

Tbe defendant Blount objected because it appeared that Mr. Allen’s father owned an adjoining tract of land. Objection overruled, and defendant Blount excepted.

Samuel Darden, a witness for the plaintiff, testified to declarations of bis father, Goodman Darden,, substantially like those testified to by tbe plaintiff, and further, that “over forty years ago this holly, claimed by Mrs. Sullivan, was by common reputation in tbe neighborhood known as the beginning corner of tbe Sandy Bottom tract of land.”

To this testimony defendant Blount objected. Objection overruled,' and defendant excepted.

W. W. Ange, a witness for plaintiff, testified: “Am 45 years of age and am a surveyor. Many years ago my father, wbo was a surveyor, and who is now dead, and bad no interest, and wben there was no controversy about tbe beginning or other boundaries of tbe Sandy Bottom tract of land, pointed out to me tbe holly, now claimed by Mrs. Sullivan as tbe beginning comer of tbe Sandy Bottom tract of land. (It was tbe common neighborhood reputation that tbe comer at ‘A’ was tbe corner of Sandy Bottom and tbe old Duckinfield corner.)”

To tbe foregoing testimony in parentheses tbe defendants objected; objection overruled, and defendants excepted.

Tbe defendants requested tbe court to charge the jury: “If tbe jury believe all tbe evidence, they shall answer tbe first issue in favor of tbe defendants.” This was refused, and defendant Blount excepted.

There was a verdict and judgment in favor of the plaintiff, and tbe defendant appealed.

Gaylord & Gaylord for plaintiff.

8. A. Newell and E. W. Stubbs for defendant.

AlleN, J.

It is well settled in this State that declarations are competent as to tbe location of lines and corners when it appears (1) that tbe 'declarant is dead at tbe time tbe declaration is offered as evidence; (2) that the declaration was made before a controversy bad arisen as to tbe boundary; (3) that tbe declarant was disinterested at tbe time tbe declaration was made. Sasser v. Herring, 14 N. C., 340; Bethea v. Byrd, 95 N. C., 311; Hemphill v. Hemphill, 138 N. C., 504.

Tbe declarations offered in evidence by tbe plaintiff meet every requirement of tbe law, ’ as they are declarations of deceased persons, made ante litem motam, and tbe declarants not only bad no interest in tbe Sandy Bottom tract of land, tbe boundaries of which are in controversy, but their declarations were against interest, as it would have been advantageous to them to establish tbe corner at tbe figure 1, instead of at tbe letter A, as their lands were east of tbe land of tbe plaintiff, and tbe letter A is east of tbe figure 1. -

Tbe fact that tbe declarant owns an adjoining tract of land does not render tbe declarations incompetent (Bethea v. Byrd, 95 N. C., 309; Lewis v. Lumber Co., 113 N. C., 55), unless made in bis own interest. Chrisco v. Yow, 153 N. C., 435. There is no conflict between these authorities and Hagaman v. Bernhardt, 162 N. C., 381, relied on by tbe defendant, as in tbe latter ease the declaration was excluded upon the ground that the declar-ant was pointing out his own boundaries, and that the declaration was in his own interest.

It is equally well settled that evidence of common or general reputation is competent in the location of private boundary if (1) the reputation had its origin at a time comparatively remote, and (2) existed before the controversy, and (3) attached itself to some monument of boundary, or natural object, or is supported by evidence of occupation and acquiescence tending to give the land some fixed or definite location. Tate v. Southard, 8 N. C., 45; Dobson v. Finley, 53 N. C., 496; Yow v. Hamilton, 136 N. C., 357; Hemphill v. Hemphill, 138 N. C., 504; Lamb v. Copeland, 158 N. C., 138.

It is true, the expressions “remote” and “comparatively remote” are indefinite; but as said in Lamb v. Copeland, supra, as the principle admitting evidence of common reputation “was established; of necessity, when from changing conditions and the absence of permanent monuments better evidence of boundary could not be procured, so the time may vary to some extent, as the facts and circumstances may show that the necessity does or does not exist.”

In Bland v. Beasley, 140 N. C., 633, it was held that a reputation having its origin seventeen years before action commenced was not sufficiently remote, and in Ricks v. Woodard, 159 N. C., 648, the same ruling was made as to a reputation of twenty years; but it was also held in the latter case that a reputation existing for forty "or fifty years was remote within the meaning of the law, and that when evidence of such reputation is introduced, it is competent to introduce evidence of -a common reputation for a shorter period in corroboration.

Applying these principles, the evidence as to common reputation was competent. It had existed for forty years or more, according to one witness, and before any controversy as to boundaries, and it attached itself to a natural object — the holly. The evidence of the other witness Auge, as to reputation, does not fix the time, but h.& was evidently speaking of a remote period, and in any event it was competent as corroborative evidence.

It may be well to note that evidence of reputation only applies to questions of boundary, and that it is not admissible to prove the ownership of the land. Locklear v. Paul, 163 N. C., 338.

In other words, it is permissible, under the conditions stated, to prove the eommon reputation’ as to a corner or a line, but not as to who- is the owner of the land.

The instruction prayed for was properly refused, as there was ample evidence to support the verdict in favor of the plaintiff.

No error.