Den on demise of Toole v. Peterson, 31 N.C. 180, 9 Ired. 180 (1848)

Dec. 1848 · Supreme Court of North Carolina
31 N.C. 180, 9 Ired. 180


The question of identity, where different names are alleged to relate to the same person, is one exclusively for the jury.

Per Nash, J. A witness who has known a town for a great number of years, may give evidence of a general and uniform reputation and understanding that the town was covered by a particular grant.

Per Pisakson, J. and Ruffin, C. J. The evidence cannot be received for that purpose, but is competent to shew that what was once called the town of N. was now called the town of W.

The cases of Sasser v. Herring, 3 Dev. 340, Mendenhall v. Cassells, 3 Dev. & Bat. 50, and Norcom y. Leary, 3 Ire. 54, cited and approved.

Appeal from the Superior Court of Law of New Hanover County, at the Spring Term 1847, his Honor Judge Battle presiding.

This was an action of ejeetment for lot No. 30, in the town of Wilmington.

The lessors of the plaintiff claimed under a grant to John Whatson made in 1735, and a deed from John Watson to Joshua Grainger, executed in 1737. The lessors of the plaintiff alleged, that John Whatson and John Watson were the same person, and to prove the identity, they introduced, after objection to it on the part of the defendant, the Register’s books, and exhibited nineteen deeds from J. Wapon and J. Wattson to different persons in the town of Wilmington, and then proved, that the descendants of Joshua Grainger Jun’r, the grand-son of Joshua Qraingpr, Sen’r, claimed and occupied lots on Market street, alleged to have been conveyed by the same deed as that under which the lessors of the plaintiff plaimed. They also proved, that no such pepson or fiamily, as that of John Whatson, ever was living- within *181the knowledge of the witnesses in Wilmington. They, then, after objection to it, introduced Iredell’s Revisal^ and showed therein, the title of an Act passed in 1739, to change the name of Newton into that of Wilmington. They, then, contended, that, from these facts, and especially from its not being shewn by the defendant, from the production of the Register’s books or otherwise, that there ever were any deeds to or from John Wkatson, the jury o'jo-ht to presume the identity of John Whatson and John Watson, and after the lapse of one hundred years, the jury should be instructed, that a prima,facie case of identity was made out. The Court instructed the jury upon this point, that they must inquire into the fact of the identity ; that the lessors must prove it to their satisfaction, and that, if they had not so proved it, they could not recover ; but that, if it were established to their satisfaction, that John Whatson, the grantee, was the same person, who under the name of John Watson sold to Joshua Grainger, the difference of names would make no difference in the title.

The lessors of the plaintiff, in order to locate the grant, under which they claimed, after having shown that from lapse of time no corner or line tree could be found, and that no person could be found, who had ever heard of a line tree, or corner of the grant, offered, to prove by Dr. DeRosset, who had lived in the town of Wilmington eighty years, that for sixty or seventy years, ever since the witness was able to recollect, it was a matter of common reputation and notoriety in Wilmington, that the town of Wilmington, including the lot now sued for, was covered by the grant, under which they .claimed. This evidence was objected to by the defendant and rejected by the Court,

After a verdict for the defendant, the lessors of the plaintiff moved for a new trial, upon the ground, that the Court had misdirected the jury upon the question of *182identity; and had improperly rejected the evidence of Dr. DeRosset. The motion was over-ruled, and judgment given, from which, the lessors of the plaintifF appealed.

W. II. Haywood and TF. A. Wright, for the plaintiffs.

Strange and D. Reid, for the defendant.

Nash, J.

The first exception to the Judge’s charge is, up-

on the evidence as to the identity of John Whatson and John Watson. The plaintiffs claimed title to the land in question, under a grant issued in 1735, to one John What-son. The deed of conveyance to his ancestor Joshua Grain-ger in ) 737, was executed by John Watson. To show that these two names be}o.nged to one and the same person, that is, the identity of John Whatson and John Watson, the plaintiffs proved that no such person or family as Whatson ever was living in tn^ town of Wilmington, within the knowledge of the witnesses. They offered in evidence the Register’s Books, which after objection by the defendant, were received by the Court, and from them showed nineteen deeds from John Watson and Wattson, to different persons in the town of Wilmington ; and they further proved that the descendants of Joshua Grainger, Jun’r the grand-sou of Joshua Grainger, Sen’r, claimed and occupied lots on Market street, alleged to have been conveyed by the same deed as that under which the plaintiffs claimed. The lessors of the plaintiff then introduced Iredell’s Revisa], and showed therein the title of an Act, passed in 1739, to change the name of Newton into that of Wilmington. This latter evidence was also objected, to. The counsel for the plaintiffs moved the Court to instruct the jury, that from the foregoing evidence, and the entire absence of any testimony showing any deed whatever from John Whatson, and after the lapse of so long a time, a ¡irinut facie case of identity was made out. His *183Honor refused so to charge, but instructed the jury that the lessors of the plaintiff must prove it to their satisfaction. and if they had not so proved it, they could not recover. I concur with his Honor, both in receiving in evidence the Books of the Register and in his instruction to the jury upon the question of identity. The books were offered, not to prove title in the lessors of the plaintiff, but to show that such deeds had been made and memorials cf them preserved among the, public records, and that they contained no copy of a deed executed by John What: or, as circumstances, which, taken in connection with others, might assist the jury on the question of identify. The fact, that a man by the name of John Watson had conveyed portions of the same land to sevhough collateral, was connected with ^íe^JJímlacuhnl from which an inference might be refwo^rtdy drawm<a%yo the disputed part, particularly after Phe líMJpe^jfe^sí) ]oi% a time. But it was an inference,JpMiich the J-Br£,ajpne could draw, and it was properly left

In connection with the above ex^yjtiomwaef'the reception of the title of the Act of 1739, mev ideitc e. It became important to the plaintiffs to preve, that the name of the town Newton, had been changed to that of Wilmington ; for the conveyance to Joshua Grainger, the ancestor of the lessors of the plaintiffs and under whom he claimed, was of lots in the former. For this purpose, he offered in evidence, the title of the Act, in question. This was admitted by the Court, though objected to by the defendant. The Act, from the title, appeared to be a private one, of which the Court could not, judicially, t ile notice, and the title was no evidence of its existence or contents. But upon referring to Davis’ Ilevisal we find, that the change of name was effected by an Act passed in 1756, and which was public in its nature. The Act of 1739, passed for that purpose, was. with many others, repealed by an order in council of the King, After-*184wards yielding to the representations of the colonial authorities, his majesty authorised and directed “the Governor of the province to give his assent to any Act, which shall be passed by the Council aud Assembly, for re-establishing the several towns, precincts, and counties/' &c. In consequence of the permission thus given, the Act of 175(5 was passed. It enacts, “that the several dw visions, precincts, and districts of this Province, which heretofore have belonged to the several and respective counties and towns, aforesaid, before the repeal of the before enacted Act of Assembly, shall and they are hereby directed to be re-established in counties and towns, by the several and respective names, by which each division» &c. was known and denominated at the time of the repeal of said Acts.” 'Davis’ Revisal, clu 9. This Act not only changed the name of Newton into that of Wilmington, but enacted and established the boundaries of several counties. It was, therefore, a public law, of which the Court, was bound to take judicial notice. The error, in-’ to which his Honor fell, was unimportant, and, in a measure, unavoidable. The Act of 1756 is not brought forward in any of the Revisáis, subsequent to fhat of Mr. Davis’, and that is to be found in few private libraries

The question, however, most, pressed upon the Court here, was ihe admissibility of the testimony of Dr. De-Rossett.

The object of his evidence was to complete the title of the lessors of the plaintiffs to the lot in question, by showing that it was out of the State. To do this, it w; s' important, not to show the metes and bounds of the Whatson grant, but that the town of Wilmington was on it. This, it appeared to me, had been already sufficiently done. The grant to Whatson, after locating the land describes it as “called Newton.” The deed to Grainger in 1737 describes the grantors, John Watson and his wife, as “ living in Newton” or Newtown, and conveys a num-*185her of lots, and then conveys “twenty five acres of the island, opposite to the said town.” leaving no doubt that the lots conveyed were in the town of Newton. In 1756 the name of the town was changed to Wilmington, which it has borne ever since — “a period of ninety-three years. It is then shown to mathematical demonstration, that Wilmington is on the land covered by the Whatson grant. But it was thought necessary by the plaintiff's counsel to fortify this position by showing, that such had been the common rumor on this subject for many years past. Dr. DeRossett, who had lived in the town for eighty years, was tendered to the Court to prove, that sixt3 or seventy years, indeed as long as he could recollect any thing, it was the common report and belief, that Wilmington was covered by the W’hatson grant. To pave the way for this testimony, the plaintiffs had shown, that from lapse of time, no corner or line tree could be found, nor could any person be found, who had ever heard of a corner or line tree of the grant. It appears to me, that the evidence of Dr. DeRossett was competent, and ought to have been received. From necessity, our Courts have departed from the strict rules of the common law in questions of boundaries. Sasser v. Herring, 3 Dev. 340. It is now . the well established law of this State, that the declarations of a single deceased witness, as to a line or corner, are admissible evidence as common reputation. This case goes a step further, and is justified on the same principle to suit necessity. The exclusion of, such testimony would, in many cases of lots in our ancient towns, and of land adjacent to them, put it out of the power of the owners to make title ; and this would necessarily result where the boundaries are natural objects of such a perishable nature as most of ours are. While it is admitted, that there is no direct precedent for the admission of such testimony as that in question, it is very clearly within the reasoning of the Court in Mendenhall and *186 Cassells, 3 Dev. and Batt. 50. There the plaintiff offered to prove, “ that it was the reputation of the neigh-bourhood, where the land in controversy lay, that the premises in question were in the boundaries of the grant, under which he claimed.” This testimony was rejected; the plaintiff had made no survey, or attempt to survey the grant, and relied solely on the report. In assigning their reasons, the Court sajq “ we receive it (that is, hear-say) in regard to private boundaries, but we require that it have something definite, to which it can adhere ; or that it should be supported by proof of correspondent enjoyment and acquiesence.” Both of these conditions were absent in the case of Cassells, and both are present here. The grant to Whatson is for 040 acres of land in New Hanover precinct, “ called Newton and opposite the thorough-fare to the North west river,” and it calls for a line along the river to the station. The land, said to be covered by it, was, and had "been for upwards of one hundred years, in different portions, in the possession of those, who claimed under it. Newton was a town in the year 1735, when the grant issued to Whatson, which called for it as embraced in its boundaries. In 1756 the name was changed to Wilmington, which it has borne ever since. Various lots, both in Newton and Wilmington, wrnre conveyed to different persons, and those conveyed to Grainger, or some of them in 1737, were taken possession of by his descendants. It is a matter of history, that Wilmington is. and has been for many years, a populous town, possessing a large shipping interest, and of much commercial importance. The two requisites then, pointed out by the^ case of Cassells, as being either of them sufficient to authorise the admission of hear-say evidence of this kind, exist in this case. The testimony of Dr. DeRossett was, then, clearly competent. If received, it would have proved, that, for seventy years, it had been and was the general rumor and common report, that *187Wilmington was located on the land, conveyed by the Whatson grant. Long and notorious possession is very strong presumptive evidence of right, and in questions of boundary authorises the inference of any fact, which can properly be inferred, to make such possession consistent with right. Norcum v. Leary, 3 Ire. 54. It must be recollected that the inquiry was not as to the metes and bounds of the Whatson grant, but to show that the town of Wil« minjton was on the ground covered by it, and thereby to prove that the State had parted with its title. If the lot sued for, instead of being vacant, had been enclosed, and in the poseession of the defendant, or other individuals, for sixty years, could there be any doubt a jury would have been instructed to presume a grant 1 This case bears a strong analogy to that class of cases, which, by writers upon the law of evidence, is treated as form’ ing an exception to the general rule, excluding hear-say evidence. The exception is, that, when the subject in controversy is of public or general interest, then hear-say evidence, as to the boundary, under certain restrictions, is admitted. Where all the citizens of the State are interested, the interest is public; where the whole are not interested, but it aflects a less, though still a large, portion of them, the interest is general, as in questions arising out of right of common. Weeks v. Sparks, 1 Ma. and Sel. 690. That was an action of trespass quare clausum-fregit. The defendant pleaded in bar a prescriptive right of common, in the locus in quo ; the plaintiff replied, prescribing in right of his messuage to use the ground for tillage. It appeared that many persons, beside the defendant, had a right of common there, and for that reason hear-say evidence of the plaintiff’s right was admitted, it being derived from persons conversant with the neighbourhood. But the ease, most nearly resembling this, is that of Rogers and Wood, 2 Barn, and Ad. 245. There the question was, whether the City of Chester ap-*188ciently formed part of the County Palatine. Testimony of reputation was offered, and rejected, not because, in itself not competent, but because it proceeded from persons, who had no particular knowledge of the fact, that is, of the reputation. And in the Duke of New Castle v. Brosebero, 4 Barn, and Ad. 273, such evidence was received. The question, there was, whether the castle of Nottingham was within the hundred of Broseboro. The case before us is one of private right, and the cases re-fered to are, therefore, no authority, but they are so similar in their circumstances, that t.he same reasoning, upon which hear-say evidence was admitted in them, applies with equal force here. I Greenleafs Ev. 217.

1 should hold that the existence of a town, for the length of time that Wilmington has existed, and for a much shorter time, would be legal evidence, from which a jury would be directed to presume a grant to the land on which it was located — that the State had parted with 'its title.

Dr. DeRossett lived in the town of Wilmington, but the case, and I am not permitted to look beyond it, no where states that he owned any real estate in it. lie was, therefore, a competent witness to testify to the faots, to which he was called, as he had no interest involved in the controversy. 1 Phil. Ev. 55, 57, And the evidence was competent.

Pis Honor erred in rejecting the testimony, and there ought to be a venire de novo.

Pearson, J.

The question of identity was a matter for the jury. There is no suoh rule of law, which would have authorised the Judge to instruct the jury, that a pvitna facie case of identity was made out, and the plaintiff has no ground to complain of the charge. I think, however, that, if the plaintiffs had been allowed the benefit of the testimony of Dr. DeRossett, the jury could not *189have hesitated one' instant in finding that the John What-son, to whom a grant was made covering the town of Wilmington in 1735; was the same individual, as the John Watson, who in 1737, made a-deed to Grainger for many lots, among others, the lot sued for, in the town of Wilmington , and if the plaintiff was entitled to the benefit of this testimony, there ought to be a venire de novo. I do not think, that it is competent to prove by tradition and general reputation, that a town is covered by a grant to A. B. That would be, in effect, to locate a grant merely by tradition and general reputation. The fact that a town is upon the land, which a certain grant is alleged to cover, can make no difference, and does not tend to prove the allegation. The object in this case was not to ascertain the boundaries of a town; it was admitted that the lot sued for was in the town — but to locate the grant. The existence of the town raises a presumption, that the land was granted to some individual, but has no tendency to show, who the grantee was.

This question, in my opinion, is settled by the case of Mendenhall v. Cassells, 3 Dev. & Bat. 50. “The tradition must have something definite to which it can adhere, or be supported by correspondent enjoyment and acquiescence.” “A tree may be shown to have been pointed out by persons of a by-gone generation as the corner of an old grantor deed.” The tree is something to which the tradition can adhere. *‘A field may be shown to have been reputed the property of a particular man, and to have been claimed, enjoyed, and occupied as such.” The occupation supports the tradition.

In that case, as in this, the old grant called for certain water-courses, and corners and lines, but the tradition did not refer to either ; and, therefore, had nothing, to which it could adhere ; and many tracts of land had been long occupied within the supposed boundaries of the old grant, but the occupation was, in no wise, con*190nected with the old grant, save by the tradition, which was held to be too loose a connection for a jury to act upon. So in this case the grant, which it was attempted to locate, had no connection, except by the, tradition, with the town, the boundaries of which were known.

I think, therefore, his Honor was right in holding the evidence incompetent, as an absolute proposition. But there were circumstances in this case, which, I think, made it competent, for the purpose of establishing the proposition, which it was necessary for the plaintiff to make out. It was admitted that the lot, sued for, was in the town of Wilmington. It appeared upon the face of the grant, that the grant included the town of Newton, and if, then, Newton and Wilmington were the same, the grant included Wilmington, and, of course the lot. The proposition, then, which it was necessary for the plaintiff to make out, was that Newton and Wilmington were the same. The effect of the testimony of Dr. DeRos3e*t was te prove that fact, for as the grant, upon its face, included Newton, and Newton and Wilmington were the same, it got to be the tradition and general reputation, that the grant included Wilmington.

It is perfectly clear that the names of mountains, rivers, and towns, may be proved by reputation: in fact, that usually, is the only way, in which names can be proved. So, a change of the name of a river or town may be proved in the same way ; and it was clearly competent to show by tradition, that the name of Newton had, man}' years before, been changed to Wilmington. But, in this case, there was, in truth, no occasion to resort to reputation to prove the change of the name, for the change was made by a public law. of which the Court was bound to take notice. The name of Newton was changed to Wilmington by an act of Assembly, passed in 1756. Dams’ Revised, ch. 9,-.which was a public act, and established the boundaries of several counties &c.

I am of opinion there ought to be a venire de novo.

*191Rupfin, C. J.

I concur in the judgment of the Court and in the course of reasoning, which my brother Pearson has adopted. Upon the questions, on which the decision below was favorable to the plaintiff, we, of course give no opinion, as they are improperly here on the appeal of the plaintiff.

Pee Cueiam. Judgment reversed and venire de novo.