Doe on the demise of Hobbs v. Outlaw, 51 N.C. 174, 6 Jones 174 (1858)

Dec. 1858 · Supreme Court of North Carolina

51 N.C. 174, 6 Jones 174

Doe on the demise of SILAS HOBBS et al. v. FREEMAN OUTLAW.

Where the instructions given by the Court, could not, in any degree, prejudice the cause of the exceptant, even if erroneous, it is no ground for a venire de novo.

The fact that a particular line was run by commissioners appointed to divide a tract of land among tenants in common, under an order in an ex parte proceeding, is evidence against them, and all claiming under them, to prove that that is the true line of such tract; being the act of the parties themselves.

It is competent to prove that a line run in a particular way, will disturb and conflict with ancient and well established boundaries of other tracts, in order to repel the conclusion that it is the true boundary of the land in question.

ActioN of ejeotMent, tried before Siiepiieed, J., at the last Superior Court of Bertie.

The land in dispute between the parties, is that included in the diagram A, B, C, D, E, K, I, II, G, E, the plaintiff contending that the lines designated by the letters E, G, H, I, K, were the true lines of his tract, and the defendant insisting on those marked by A, B, C, I), E; and one of the chief questions was, whether the beginning corner of the Ereeman tract, claimed by plaintiff, was at I, or at a “ pine-stump” at E, for if at I, then according to the courses and distances the land in dispute would belong to the plaintiff; but if at the pine-stump, (E) then, according to the courses and distances, it would not belong to the plaintiff, hut to the defendant, whose deed called for the lines of the Ereeman tract.

Among various other facts adduced by the plaintiff to establish the line, as he claimed it to he, he offered the proceedings of commissioners, who, in 1825, divided the lands of Joshua Rayner (under whom the defendant claimed title,) among his heirs-at-law. He showed that these commissioners were all dead. This testimony was obj ected to, hut received by by the Court as the declarations of deceased persons. It appeared from these proceedings, that they recognised and reported I, IT, as the Ereeman line. Defendant excepted. There were other facts adduced by the plaintiff, to show that I H was the true line of his tract, which are not pertinent to the questions raised.

The defendant, offered several witnesses, whose testimony-tended to show that the line A, B, C, I), E, were the true boundaries of the Freeman land, and he insisted that this was made manifest by beginning at the pine-stump, and reversing the lines from the order in which they were originally run.

The plaintiff offered to prove, that if the survey began at the pine-stump and was run in a reversed order, as insisted upon by the defendant, it would pass through the fields and improvements of adjoining proprietors, which had been for many years quietly enjoyed, whereas, by beginning at I, and running in the proper order of the calls, no such conflict would occur. This evidence was objected to by the defendant, but the Court held it admissible. Defendant excepted. Among other positions, (not excepted to,) the Court charged, “ that it was allowable in some cases, to reverse a line in running the courses of a boundary of a tract of land, but this could only be done, where the means of identification were thereby rendered more certain than the calls of the deed.”

The defendant excepted to this part of his Honor’s charge, because it was not supported by a state of facts, to which it was applicable.

Verdict and judgment for the plaintiff. Appeal by the defendant.

Winston, Jr., for the plaintiff.

Barnes, for the defendant.

Battue, J.

The first objection, which appears in the defendant’s bill of exceptions is, that the record of the proceedings in the expcvrte suit, for the partition of the land of Joshua Rayner, among his heirs-at-law, was admitted, on the part of the plaintiff, to show that the line I, H, was one of the dividing lines between the Freeman land, claimed by the plaintiff, and the Rayner land, part of which was claimed by the-defendant. This evidence was received by the Court as the declarations of the commissioners, who were proved to be now dead, as to o question of boundary. The evidence was clearly admissible as the declarations and acts of the heirs-at-law of Eayner, under and of whom the defendant claimed, but it may be doubted whether it was properly admitted upon the reason assigned for it; because the commissioners may not have known, or professed to have known, any thing about the dividing line ; and may have acted, and probably did act, solely upon the information of those, whose land they were dividing. As the record was admissible upon a ground quite as strong as that upon which it was admitted, the defendant has no just cause to complain of it.

The question about reversing the lines of the deed, under which the plaintiff claimed, did not arise for any practical purpose, and, therefore, no objection can be founded upon it. The real contest between the parties was, whether the beginning corner of the plaintiff’s land was at I, as contended for by him, or was at the pine-stump, as insisted on by the defendant. If it were the latter, then the locus in quo would not be within the plaintiff’s boundaries, and it is manifest, that such would be the result whether, the lines were run by the courses and distances in a direct or a reverse order. If the former, then it was conceded that the defendant’s cleared field was included within the plaintiff’s lines. The evidence of the respective parties, in relation to these points, was fairly submitted by his Honor to the jury, and we cannot discover any error in his charge.

The testimony introduced to show how the lines would run from each of the proposed starting points, to wit, the letter I and the pine-stump, as delineated on the plat, was clearly proper for the purpose of locating the land claimed by the plaintiff, and the argument was a fair one, that if begun and run as contended for by the plaintiff, the lines would not interfere with the established boundaries of other adjacent tracts, but that it would be otherwise if commenced and run as insisted on by the defendant.

The defendant having been unable to sustain any of his objections to the judgment, it must be affirmed.

Per Curiam, Judgment affirmed.