Doe on Dem. of McDonald v. McCaskill, 53 N.C. 158, 8 Jones 158 (1860)

Dec. 1860 · Supreme Court of North Carolina

53 N.C. 158, 8 Jones 158

Doe on dem. of MARTIN McDONALD v. ALLEN McCASKILL.

Where a witness testified that a certain unmarked pine had been pointed out to him as the corner of a grant by an old man, at the time of the trial deceased, and there were five particulars, in which the description, in the grant, were supported by the facts proved, it was Iidd erroneous to charge the jury, that there was no evidence of the location of the grant.

Action of ejeotMENt, tried before FeeNch, J., at the last Fall Term of Richmond Superior Court.

The plaintiff read in evidence a grant from the State to himself, dated 1st January, 1858, conveying the land in controversy.

The defendant offered, in evidence, a grant from the State to one David Allison, dated in 1795, which is as follows:

“ State of North Carolina. No. 815.”

“Know ye, that we have granted unto David Allison, six hundred and forty acres of land in Richmond county, beginning at a j>ine, between Hitchcock creek and Mountain creek, and on the east side of George Collins, and on the north side of the Grassy Island road, and runs east 320 poles to a pine below McCall’s mill; thence north 320 poles to a pine above said mill, then west 320 poles to a corner, then south 320 poles to the beginning. Dated 23rd April, 1795.”

It was in evidence, that Hitchcock creek and Mountain creek were each 15 or 20 miles long and 8 or 10 miles apart, and between these two streams was, generally, a pine country. It was further in evidence, that the Grassy Island road was 8 or 10 miles long.

One Qillis testified, that about 20 years ago, one McCaskill, now deceased, pointed out to him a pine, then green, and forked about three or four feet from the ground, as the corner ¡of the Robinson and Harrington land, and represented on the annexed diagram as letter A. The witness heard nothing said about the beginning corner. The pine is between the streams above named, on the edge of the Grassy Island road and about a half a mile south-east of George Collins; MeOaskill, spoken of above, was a native of Scotland, and came to the United in 1802, and to the neighborhood of the land in controversy, in 1820.

Gillis stated that the pine pointed out to him by McOaskill, •had no marks of any kind on it.

Assuming the pine, above mentioned, (A) as the beginning of the Allison grant, and running course and distance, the first line would end about 160 poles below McCall’s mill, and the ■second line about 160 poles above it, and pursuing the calls of course and distance, the loous in quo would be within the Allison grant.

The defendant further offered a deed from sheriff Cole to Toddy Robinson and Henry Harrington, dated in 1796, containing several tracts, each containing 640 acres, and among them was tract “ No. 815, granted to David Allison on 23rd April, 1795.”

•The Court charged the jury, that there was no evidence to be submitted to them of the location of the Allison grant. Defendant’s counsel excepted.

Yerdict and judgment for plaintiff. Appeal by defendant..

Gimieron and Bhrange, for the plaintiff

Ashe, for the defendant.

Pearson, C. J.

The sheriff’s deed ¡to-Robinson andi Harrington, dated in 1796^ for a tract of 610 acres of land,' granted to David Allison, “by grant, No. 815;dated23rdoffApril, 1795-,” we think makes a link sufficiently strong in the-chain of title to connect the land, covered by this grant, with\ the-title of “ Robinson and Harrington,””'so as to establish that it was the Robinson and Harrington land referred’to--in the hearsay evidence of Alexander McCaskill, derived ¡through the testimony of the witness, Gillis. That evidence was competent on a question of boundary, and, .indeed, was not objected to on the trial’; consequently, there was some-evidence to be submitted to the jury, of the location of the Allison grant; for the fact, that by beginning-at the pine pointed out by McCaskill as “ the corner” of the Robinson and Harrington land, and running thence according to the calls of the grant, live general descriptions fit in, and concur to prove the accuracy of the witness, and make out a remarkable coincidence, which was well calculated to sátisfy the jury, that it was the true location of the grant. At all events, in- the opinion of this Court, the jury ought to have been allowed to take these several matters into consideration.. I-n aid of the hearsay evidence, we have the facts, that it fits the grant in this : 1st. It is a pine between Hitchcock creek and Mountain creek. 2nd. It is east of George Collins. 3rd. It is on the edge of the Grassy Island road. Ith. Running course and distance, the first line crosses the creek below McCalls’mill. 5th. The second line terminates above MoOalVs Mill. It is- true, these descriptions are very general, and neither taken by itself, would amount to much, but taken together, like many small circumstances, all pointing the same way, they were fit to- be submitted.to the jury, and;migh-t have enab'led'them to arrive-afe a.satisfactory conclusion.

There is error. Venire d$ novo.-

Per Curiam,

Judgment reversed*.