Berry v. Richmond Cedar Works

• Decision Date: 11 October 1922
• Docket Number: 22.
• Citation: Berry v. Richmond Cedar Works, 184 N.C. 187, 113 S.E. 772 (N.C. 1922)
• Parties: BERRY ET AL. v. RICHMOND CEDAR WORKS.
• Court: North Carolina Supreme Court

113 S.E. 772

184 N.C. 187

BERRY ET AL. v. RICHMOND CEDAR WORKS.

No. 22.

Supreme Court of North Carolina

October 11, 1922

Appeal from Superior Court, Tyrrell County; Daniels, Judge.

Action by Z. V. Berry and another against the Richmond Cedar Works. Judgment for plaintiffs, and defendant appeals. No error.

In an action of trespass, testimony of surveyor that the land described in the complaint was within a named grant held not to invade the province of the jury, in view of the other testimony.

The issues were answered as follows:

(1) Are plaintiffs owners and entitled to possession of the lands described in the complaint? Answer: Yes.

(2) Did defendant, Richmond Cedar Works, wrongfully and unlawfully trespass upon same? Answer: Yes.

(3) What damage, if any, has plaintiff sustained? Answer: One cent.

Judgment for plaintiffs. Appeal by defendant.

T. H Woodley, of Columbia, and Thompson & Wilson, of Elizabeth City, for appellant.

Aydlett & Simpson, of Elizabeth City, for appellees.

ADAMS J.

The action was brought to recover damages for alleged trespass but as the defendant admitted possession and the removal of timber the controversy was practically confined to the first issue. The plaintiffs introduced a grant to Josiah Collins dated July 9, 1796, a deed from W. E. & H. L. Cohoon to F. N. Hussey, dated November 28, 1883, and mesne conveyances to the plaintiffs. Failing to exhibit a connected chain of title from the state, the plaintiffs undertook to establish their right to recover by showing adverse possession for seven years under known and visible lines and boundaries and under colorable title. The defendant contended that, even if those under whom the plaintiffs claim had thus acquired title, it was divested by the defendant's subsequent adverse possession under color for the statutory period. The action was brought prior to May 1, 1917. C. S. §§ 426, 427.

Several of the exceptions entered of record were abandoned on the argument; those brought forward and relied on have received our careful consideration, but some of them are so obviously untenable as to require no discussion.

Exception 2. T. B. Shallington, a surveyor, testified for the plaintiffs that the land described in the complaint lies within the boundaries of the Collins grant, and the defendant excepted on the ground that the question involved one of the vital matters on which the parties were at issue, and that the answer assumed to determine an essential element of the verdict. In the complaint the land is not described by course and distance, but by reference to natural objects; and, after testifying without objection that he knew the Collins grant and the boundaries of the land in controversy, the witness said that the locus in quo is situated within the lines of the grant, or, in substance, that inside the grant are the natural objects called for as the boundaries of the locus in quo. This was evidence of a substantive fact, which in view of the preceding evidence was not incompetent on the ground that the witness invaded the province of the jury. This exception is without merit. Indeed, a witness for the defendant afterward testified to identically the same thing.

Exceptions 17, 18, 35, 36. The plaintiffs offered evidence tending to show that before bringing suit they built a camp on the land in controversy, and put in charge of it a watchman named Sykes; that the defendant built another about 50 yards away which was occupied by Bose Owens; and that on one occasion Abner Bryant acted as watchman in the absence of Sykes. The court permitted both Bryant and Sykes to testify that, while they were serving in the capacity of watchmen for the plaintiffs, Bose Owens offered them $10 as a consideration for their surrendering possession of the land to him. To this evidence the defendant excepted on the ground that Owens was not authorized by the defendant to make such offer. It is well settled that the declarations of an agent which are made after the transaction, and are not a part of the res gestæ, are incompetent, and that what an agent says within the scope of his agency, characterizing or qualifying his act, is admissible as a part of the res gestæ. Branch v. Railroad, 88 N.C. 575; Southerland v. Railroad, 106 N.C. 104, 11 S.E. 189; Hamrick v. Tel. Co., 140 N.C. 151, 52 S.E. 232. Direct testimony of the agent's authority was not necessary. The evidence relating to this subject, considered in its entirety, and particularly with reference to the circumstances under which Owens subsequently took possession of the camp, and the defendant's evident approval thereof, admits of the construction that Owens at the time of the alleged conversations was acting in furtherance of the defendant's purpose to evict the plaintiffs' watchmen, peaceably if possible and forcibly if necessary; and, being susceptible of this interpretation, the evidence was properly submitted to the jury.

Exceptions 44, 45, 46, 47. The defendant introduced the deposition of H. L. Cohoon, and excepted to the exclusion of certain portions thereof tending to show that F. N. Hussey in 1883 had procured the execution of the Cohoon deed by fraud. The exceptions are based upon the two propositions: (1) That the Cohoons never had title to the land, and their possession was not colorable; and (2) that Hussey's fraud in any event vitiated the Cohoon deed as color of title.

In Tate v. Southard, 10 N.C. 121 (14 Am. Dec. 578) Judge Henderson defined color of title as a "writing, upon its face professing to pass title, but which does not do it, either from a want of title in the person making it, or the defective mode of conveyance that is used"; and his definition has been repeatedly accepted and approved. It is therefore utterly immaterial whether or not the Cohoons had title, for they executed and delivered to F. N. Hussey a deed which unquestionably constituted color in their grantee. Likewise the second proposition must be resolved against the defendant. In Seals v. Seals, 165 N.C. 409, 81 S.E. 613, Ann. Cas. 1915D, 134, one of the questions was whether a deed procured by the grantee's fraud is color of title, and the court held, Walker, J., writing the opinion, that the deed was valid until set aside for fraud; that it was merely voidable at the instances of the grantor; and that the intervention of a court of equity was required to declare it invalid. In the instant case if the excluded evidence had been...