Becton v. Goodman

• Decision Date: 23 February 1921
• Docket Number: 170.
• Citation: 105 S.E. 875,181 N.C. 475
• Parties: BECTON v. GOODMAN
• Court: North Carolina Supreme Court

105 S.E. 875

181 N.C. 475

BECTON v. GOODMAN

No. 170.

Supreme Court of North Carolina

February 23, 1921

Appeal from Superior Court, Craven County; Connor, Judge.

Proceedings to determine boundary line by J. W. Becton against E. A Goodman. From an adverse judgment, plaintiff appeals. No error.

In a proceeding to determine a boundary line, the court properly sustained defendant's objection to question to a witness directing him to compare a map with his others and a blueprint, though plaintiff stated he proposed to show by the witness the map on record was a correct copy of the map in the original proceedings.

In a proceeding to determine a boundary line, the court properly sustained defendant's objection to a question directing a witness to compare the plot of an original partition proceeding with the description of a lot, and to tell the jury if by such original plot in the partition proceeding the beginning corner of the lot was shown as contended for by plaintiff; plaintiff stating that he desired to show by the witness that the beginning corner of the lot was on the right side of the lot as contended for by him.

The case on appeal here follows:

This was originally a processional proceeding begun before the clerk and transferred to the civil issue docket and heard before his honor, G. W. Connor, judge presiding, and a jury. The sole question in the whole case was the true location of the dividing line between shares 5 and 6 of the division of the lands of J. L. West, deceased.

The plaintiff introduced Special Proceeding Book E, page 578 showing the original division proceedings and the map thereto attached, a photograph of same being hereto attached, marked "Exhibit A." This proceeding described and referred to the plat the description of each lot, and so designated same on the plat lot 1, beginning at the northwestern extremity of the line on the south side of lots 1, 4, 5 and part of 6. Lot 4 contains 85 acres more or less; lot 5 contains 90 acres more or less; lot 6 contains 70 acres more or less. The description of lot 5 reads: Beginning at the fourth corner of lot 4, and runs thence S. 87~ E. 43 poles to a stake; thence N. 25~ W. 316 poles to the run of Moseley's creek, thence up said creek to the corner of lot No. 4; thence S. 25~ E. 314 poles to the beginning. Lot 6 is described as follows: Beginning at the second corner of lot 5; and runs thence S. 78 1/2~ E. to the road; thence N. 5~ E. 4 poles; thence N. 32~ W. 14 1/2 poles; thence N. 10~ E. 20 poles; thence N. 28 1/2 poles; thence N. 27~ E. 24 poles to a stake on the east side of the road; thence N. 43~ E. 8 poles to a stake in said line; thence N. 25~ W. 246 poles to the back line; thence with said line to Moseley's creek; thence up said creek to the second corner of lot 5.

The plaintiff next introduced fee-simple deed, of record Book 156, page 505, from Herman and Zula Daugherty, his wife, to Clay Moore, dated 21st day of November, 1900, conveying in fee lot 5, describing same, and referring same to the original divisional proceedings and map thereto attached; said description being identical with that of original proceeding.

Deed from Seymoore Carpenter and wife, Ada D. Carpenter, to Clay Moore dated 16th day of March, 1905, of record in Book 156, page 511, conveying fee-simple estate in and describing lot 6 as described in original division proceeding, and referring to proceeding and map thereto attached for more perfect description.

Deed from Clay Moore and wife to C. E. Dail, dated 14th November, 1905, recorded in Book 156, page 514, conveying in fee and describing lots 5 and 6, respectively, as described in original division proceeding, and referring to same and map thereto attached for more perfect description.

Deed from C. E. Dail and wife to E. J. Becton and H. C. Wooten, dated 14th day of April, 1914, recorded in Book 200, page 62, conveying in fee and describing lots 5 and 6 respectively, as described in the original division proceeding, referring to same and map thereto attached for more perfect description.

Deed from E. J. Becton and wife to Kinston Insurance & Realty Company, dated 2d day of February, 1914, recorded in Book 200, page 99, conveying in fee one-half interest in and describing lot No. 6, as described in original division, referring to same and map thereto attached for more perfect description.

Deed from H. C. Wooten and wife, Vida M. Wooten, to Kinston Insurance & Realty Company, dated 18th March, 1914, recorded in Book 203, page 163, conveying in fee one-half interest in and describing lot No. 6, as described in original division, referring to same and map thereto attached for more perfect description.

Deed from Kinston Insurance & Realty Company to J. W. Becton, dated 2d day of February, 1917, recorded in Book 214, page 572, conveying in fee and describing lot No. 6, as described in original division, referring to same and map thereto attached for more perfect description.

Deed from E. J. Becton and wife and H. C. Wooten and wife to E. A. Goodman, dated 22d day of December, 1913, recorded in Book 200, page 174, conveying in fee and describing lot No. 5 as described in original division, referring to same and map thereto attached for more perfect description.

Plaintiff then introduced the official plot of the commissioners in the partition proceeding of the lands of Z. V. West, deceased, from the files of the clerk of the superior court.

It is agreed that plaintiff is the owner of lot No. 6 of said division, and defendant owner of lot No. 5 in said division.

Mr. J. L. Phillips, introduced by the plaintiff, testified that he was a surveyor of about seven years' experience; that he had been on the land and surveyed same, that he commenced at a tarkiln bed a known corner of the J. L. West lands, and by reversing the courses and taking the distances as shown in the deeds of lots 6 and 7 located the eighth corner of lot No. 6, so admitted by owners of lots 6 and 7, respectively, then following the reversed calls, using distances as shown on division located the point of intersection of the south line of the J. L. West lands and the old Dover road; that the said courses and distances coincided fully with the courses and distances as called for in the description of lot No. 6 of the division of the lands of J. L. West; that he by reversing courses and surveyed line from said intersection designated on the court map by figure 1, 10, 11, and 12; that same measured 96 1/2 poles that by using the reversed calls and beginning at the tarkiln corner he located the line between lots 6 and 7 running over by about 3 or 4 feet, and found an iron stake close by corner; that at the point 12 as designated on the court map he found a lightwood knot.

The plaintiff asked the witness the following question: "Q. Mr. Phillips, compare this map with your other maps and the blueprint." The defendant objected. The plaintiff stated that he proposed to show by the witness that the map on record was a correct copy of the map in the original proceedings. The court sustained the objection to the question and excluded the answer, and the plaintiff excepted. (Exception No. 1.)

The plaintiff then asked the same witness the following question: "Q. Please compare the plot of the original partition proceedings with the description of lot No. 6, and tell the jury if by that original plot in that partition proceedings the beginning corner of lot No. 6 is there shown as contended for by the plaintiff." The defendant objected. The plaintiff stated that he desired to show by this witness that the beginning corner of lot No. 6 to be on the right side of the road as contended for by plaintiff. The court sustained defendant's objection, and the plaintiff excepted. (Exception No. 2.)

Mr. Becton testified that he purchased the land described as lot No. 6, 4 or 5 years ago; that when he went there there was no sign of any turn row; that he was never shown the line between lot 6 and lot 5; that he went with Mr. Phillips to survey this land; that they went with a crowd, and went to the lightwood stake driven in ground with pointers (blazed trees) in the tarkiln bed, generally known as a corner of the J. L. West land, and a corner of lot No. 7, reversed the course and distance on the south line of lot 7, and run to course the reverse of S. 43~ E. 46 poles, the distance called for in deed to lot 7, to within a few feet of the line between lots 6 and 7, shown on the court map as the point 19; then, following the course of his lot, reached the point 1 as shown on court map.

B. M Potter, county engineer, introduced by the plaintiff, testified that he was appointed by the court to survey the lands of plaintiff and defendant; that the map thereto attached and marked "Exhibit B" was made by him as a result of such survey; that in order to locate the boundary of lot 5, and the contentions of defendant, he commenced at point designated by figure 13 on said map, it being at the beginning corner of lot 4; following the course and distance from 13, he found the outside line at figure 11, 25 1/2 poles from the point 12, the beginning corner of the tract and the beginning corner of lot 1; that in running the way that he did it made the last call of lot 1, 25 1/2 poles, instead of 4 poles; following the course and distance along said line he located the first corner of lot 5, at point 10, on said map; that, following the call of lot 5, "beginning at the fourth corner of lot No. 4, and runs thence S. 87~ E. 43 poles," he would cross the old Dover road; that said road was only 34 poles from the beginning corner of lot No. 5; that he started at the tarkiln bed, being the second corner of lot 7, and reversed his courses; following the proper distances, he located...