Pace v. McAden, 191 N.C. 137 (1926)

Jan. 27, 1926 · Supreme Court of North Carolina

191 N.C. 137

C. A. PACE v. HENRY M. McADEN et al.

(Filed 27 January, 1926.)

1. Evidence — Declarations—Deeds and Conveyances — Title.

In order for the declarations of a predecessor in title to be competent upon tbe question of disputed boundaries to land, in favor of a claimant under bim, it is necessary for tbe party to show that the declarant was dead when such evidence is offered, that be was disinterested at tbe time of tbe declaration, and that it was made ante litem motam or before any controversy bad arisen which affected bis title to tbe lands in dispute.

2. Same — Ante Litem Motam.

The declarations of a predecessor in title as to tbe disputed boundaries of land are incompetent, when at tbe time they were made another lot of the lands adjoining tbe locus in quo, and equally affected by tbe declarations, was in dispute.

3. Appeal and Error — Evidence—Unanswered Questions — Record.

Where a question has been ruled out upon tbe trial and excepted to, it is required that it be made to appear of record what tbe answer of tbe witness would have been, for it to be considered on appeal.

4. Deeds and Conveyances — Evidence—Boundaries—Location of Calls.

Where there are two identical points called for in tbe boundaries determining tbe locu$ in quo, tbe location of which is determinative of the issue, it is competent for a party to show in favor of bis title tbe true location of tbe point called for.

5. Evidence — Hearsay—Questions for Jury.

Held,, under tbe facts of tbis case, evidence was properly excluded which was to a fact without tbe personal knowledge of the witness, and which was within the province of tbe jury to determine.

Appeal by defendants from Finley, J., at June Term, 1925, of Chebokee.

Action to determine title to land and to remove a cloud from title. Tbe issues were answered as follows:

“1. Is tbe plaintiff’s grant 15831 located as contended for by tbe plaintiff as shown in yellow lines on tbe map ? Answer: Yes.

“2. Is tbe defendant’s grant located as contended for by tbe defendants as shown by tbe red lines on tbe map? Answer: No.

“3. It was adjudged that tbe plaintiff is tbe owner of tbe land described in tbe complaint as indicated on tbe plat by tbe yellow lines and that tbe defendants have no right, title, or interest therein. Tbe defendants excepted and appealed.

Moody & Moody and R. L. Phillips for plaintiff.

M. W. Bell and Dillard & Hill for defendants.

Adams, J.

Tbe plaintiff claims title under a grant (No. 15831), issued to Eunice Postell on 28 March, 1903, and registered on 5 May next succeeding, and upon tbe trial be introduced mesne conveyances connecting bis title with that of tbe grantee. Tbe defendants claim under a grant (No. 3111), issued to E. B. Olmsted on 10 November, 1867, and registered 4 June, 1884, and upon tbe trial it was admitted that they have an unbroken chain of title and have succeeded to whatever title Olmsted acquired under this grant. It is therefore obvious that tbe point of divergence is tbe location of tbe grants from which tbe parties respectively derive their title. Practically all tbe exceptions taken by tbe defendants relate to this question.

E. C. Mease, a surveyor introduced by tbe plaintiff, testified that tbe platted distance of tbe first line in tbe Postell grant is 13 poles in excess of tbe length designated in tbe grant; and be was asked on cross-examination whether, if tbe line stopped at tbe distance called for, all tbe following calls shown by tbe yellow lines would not be changed. Upon objection by tbe plaintiff tbe answer was excluded and tbe defendants excepted. Tbe witness would have answered, “We then ran tbe remainder of tbe calls from this point at H, which was 13 poles further than tbe grant calls.” If it be granted that tbe proposed answer was responsive to tbe question, an assumption which is not undisputed, it was inadmissible. Tbe line begins “on tbe southeast corner of tract 642 and runs with tbe line of said number and No. 356 west 180 poles to tbe southwest corner of No. 356.” Tbe location of tbe line involves both law and fact, for if tbe jury should find tbe southwest corner of No. 356 to- be where tbe plaintiff contends it is, tbe line would be extended to- this corner. Eor this reason it was not competent to show that tbe line would necessarily be deflected at tbe end of 180 poles. Gilchrist v. McLaughlin, 29 N. C., 310; Miller v. Cherry, 56 N. C., 24; Bowen v. Gaylord, 122 N. C., 816; Lumber Co. v. Bernhardt, 162 N. C., 460; Gray v. Coleman, 171 N. C., 344; Miller v. Johnston, 173 N. C., 62. Tbe first exception is overruled.

The beginning corner of tbe defendants’ land is at “a water oak, a corner, of No. 7290, on tbe county line.” For tbe purpose of showing tbe corner of No. 7290 tbe defendants introduced a grant to Olmsted purporting to convey tbe land in No. 7290 and calling for its beginning corner on a water oak west of Young’s camp. It is contended that tbe beginning corner of botb tbe Olmsted grants is at tbis oak. Tbe defendants proposed to ask tbeir witness, James H. Crisp, wbetber William Young bad pointed out to bim tbe location of Young’s camp. Young was then dead and bad bad no interest in tbe land. At tbat time a suit was pending between McAden and one Wright, and tbe witness surveyed botb tbe Olmsted grants under an order of court. Young’s declaration was excluded and tbe defendants excepted. Exceptions 3 and 4. Whether botb tbe Olmstead grants were then in controversy is immaterial, for they have a common-beginning corner, and tbe location of this corner would affect, if not determine, tbe location of each tract.

Tbe requirements for tbe admission of unsworn declarations are tbat tbe declaration be made cmte litem motam, tbat tbe declarant be disinterested when it is made and tbat be be dead when it is offered in evidence. Yow v. Hamilton, 136 N. C., 357; Hemphill v. Hemphill, 138 N. C., 504; Sullivan v. Blount, 165 N. C., 7; Hoge v. Lee, 184 N. C., 44; Tripp v. Little, 186 N. C., 215, 218. In tbe case last cited it is said tbe term "ante litem motam" does not apply merely to tbe suit then being tried, but refers also to tbe origin of tbe controversy between tbe parties or their predecessors in title, which resulted in tbe suit. And in Rollins v. Wicker, 154 N. C., 559, tbe commencement of tbe controversy is defined to be “tbe arising of tbat state of facts on which tbe claim is founded”; and it is therein held tbat evidence of this character should refer to a period “when this fountain of evidence was not rendered turgid by agitation.”

When tbe proffered declaration of William Young was made in tbe presence of Crisp, tbe location of tbe beginning corner of No. 7290 (grant 3120), was in controversy; this corner, as we have said, is a corner of No. 7391 (grant 3111) ; and tbe situation of Young’s camp bad a direct bearing upon tbe location of tbe beginning corner of tbe two Olmsted grants. A controversy then existed between tbe defendants or their predecessor and Wright and tbe excluded declaration was not made anteditem motam. Defendants, however, cannot complain, because tbe witness afterwards testified tbat in 1915 Young pointed out to him tbe location of Young’s camp.

Tbe evidence to which tbe fifth exception relates wás correctly excluded ; its admission would have been an invasion by tbe witness of tbe province of tbe jury. There is no evidence tbat tbe witness was present when tbe line was run or tbat bis proposed evidence was based on bis personal knowledge.

Tbe sixth, seventh and eight exceptions also are untenable as will appear from what we have said in tbe discussion of tbe third and fourth; and as to tbe ninth and tenth tbe record does not disclose tbe anticipated answer of tbe witness, and we cannot assume tbat it would have been favorable to tbe defendants. Snyder v. Asheboro, 182 N. C., 708; S. v. Collins, 189 N. C., 15.

Oh tbe plat are two points referred to as Young’s camp ground. Tbe plaintiff insisted on one as tbe correct location and tbe defendants on tbe other. Tbe plaintiff contended tbat a corner of grants 3020 and 3111 bad been changed by tbe Legislature at tbe instance of tbe defendants or those under whom they claim title, and on tbe cross-examination be attempted to show tbat a witness for tbe defendants bad found a hickory near tbe camp at tbe bead of Trail Eidge. Tbe defendants excepted to tbe admission of this evidence (exception 11), but in our opinion it was competent, as was also tbe evidence on tbe same question which is tbe subject of tbe sixteenth exception. There are two or three other exceptions, but they must be overruled under principles which are familiar and require no discussion.

We find

No error.