Carr v. Bizzell, (No. 85.)

• Decision Date: 29 September 1926
• Docket Number: (No. 85.)
• Court: North Carolina Supreme Court
• Parties: CARR et al. v. BIZZELL.

134 S.E. 462

(192 N.C. 212)

CARR et al.

v.BIZZELL.

(No. 85.)

Supreme Court of North Carolina.

Sept. 29, 1926.

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

Special proceeding by B. P. Carr and another, against Eugenia Bizzell. Judgment for plaintiffs, and defendant appeals. No error.

Special proceeding to establish the dividing line between adjoining lands of plaintiffs and defendant, with title drawn in issue—both sides claiming the land in dispute by adverse possession. From a verdict and judgment in favor of plaintiffs, the defendant appeals, assigning errors.

Sutton & Greene, of Kinston, and N. Y. Gulley, of Wake Forest, for appellant.

Dickinson & Freeman, of Goldsboro, for appellees.

STACY, C. J. The exceptions addressed to the admission and exclusion of evidence call for no particular elaboration. They are without substantial merit and cannot be sustained. The ones mainly stressed on the argument relate to the admission of declarations i against interest made by owners of the land, under whom the defendant claims, while they, (the declarants), were in possession of the premises asserting ownership thereof.

It appears that the declarations quoted by the witnesses were made before any dispute arose over the boundary line; that they were against the pecuniary or proprietary interests of the declarants, who had no probable motive to falsify the facts declared, and who were cognizant of the meaning and effect of said declarations at the time they were made; and that the declarants are now dead. This rendered the evidence competent. Roe v. Journegan, 175 N. C. 261, 95 S. E. 495. The admissibility of such evidence was fully discussed in the case of Smith v. Moore, 142 N. C. 277, 55 S. E. 275, 7 L. R. A. (N. S.) 684, where it was said in an elaborate opinion by Walker, J., reviewing the authorities on the subject, that declarations against interest, as to facts relevant to the inquiry, are admissible in evidence, even as between third parties, when it appears: (1) That the declarant is dead; (2) that the declaration was against his pecuniary or proprietary interest; (3) that he had competent knowledge of the fact declared; and (4) that he had no probable motive to falsify the fact declared. The rulings in the instant case come squarely within the authorities on the subject.

The trial court instructed the jury that as the plaintiffs were the actors, the burden of proof was on them throughout to establish by the greater weight of the evidence the location of the true dividing line between the lands of the plaintiffs and the defendant. In this there was no error. Hill v. Dalton, 140 N. C. 9, 52 S. E. 273. The burden of proof cannot rest on both parties at the same time. Speas v. Bank, 188 N. C. 524, 125 S. E. 398; Tillotson v. Fulp, 172 N. C....