Cox v. Hyatt, 201 N.C. 828 (1931)

Oct. 14, 1931 · Supreme Court of North Carolina

201 N.C. 828

MRS. J. G. COX v. A. L. HYATT et al.

(Filed 14 October, 1931.)

Appeal by .defendants from Grady, J., at February Term, 1931, of Lenoie.

No error.

This is an action for trespass, involving title to a certain lot or parcel of land situate in the city of Kinston, N. C., and described in the complaint.

Plaintiff alleges that she is the owner and is in the possession of said lot or parcel of land, and that defendants have wrongfully and unlawfully trespassed on said land. This allegation is denied by the defendants, who allege in their further answer to the complaint that they are the owners and in the possession of a portion of the land described in the complaint, and that plaintiff has wrongfully and unlawfully trespassed thereon.

Tbe issues submitted to the jury were answered in accordance with the contentions of the plaintiff.

From judgment that plaintiff is the owner and is entitled to the possession of the land described in the complaint, and that she recover of the defendants the amount assessed by the jury as her damages, resulting from the trespass on said land by the defendants, the defendants appealed to the Supreme Court.

Rouse & Rouse, and Wallace & White for plaintiff.

Shaw & J ones for defendants.

Pee CueiaM.

This action arose out of a controversy between the parties as to the location of the land described in certain deeds under which plaintiff claims title to the land described in the complaint. The evidence offered by plaintiff tended to show that the land described in the complaint is the identical land described in the deeds. The evidence offered by defendants tended to show the contrary. This conflicting evidence was submitted to the jury under a charge which was free from error. Defendants’ assignments of error- on their appeal to this Court cannot be sustained.

The evidence offered by plaintiff and admitted subject to defendants’ exceptions tended to identify the land described in the deeds under which plaintiff claims title as the land described in the complaint. This evidence was competent and was properly admitted.

Defendants’ motion for a new trial, made in this Court, on the ground of newly discovered evidence, has been duly considered. The motion is denied. The newly discovered evidence, if competent, is merely cumulative. The judgment is affirmed.

No error.