Chrisco v. Yow

• Decision Date: 17 November 1910
• Parties: CHRISCO v. YOW et al.
• Court: North Carolina Supreme Court

69 S.E. 422

153 N.C. 434

CHRISCO v. YOW et al.

Supreme Court of North Carolina

November 17, 1910

Appeal from Superior Court, Randolph County; Biggs, Judge.

Action by Daniel Chrisco against Joseph G. Yow and another to recover possession of certain land and timber from defendant and the sum of $200 for the value of such timber, and as profits and damage to the land from the cutting, removing and destroying of the timber and wood thereon, and for an injunction restraining defendant from cutting timber and wood and removing the same from the land, etc. Defendants denied plaintiff's title to the land from which the timber was cut, though admitting that they were in possession. There was a verdict for plaintiff on the issues on which judgment was rendered, and defendants appeal. Affirmed.

Where in an action to determine a land boundary, a witness had testified that her former husband had pointed out to her the boundaries of his adjoining land as claimed by plaintiff plaintiff was entitled to testify that on the morning the witness' deposition was taken she told him that her husband had pointed out the corners as about 50 yards east of where a small branch crossed an old road.

Martha Davis testified by depositions that her first husband was once the owner of the land adjoining that claimed by plaintiff on the east; that her then husband told her where the line and corners were, and that plaintiff who was then living with them had cut down a line tree and split it into rails and that the hack had grown over; that these hacks were north of the corner at the Moore county line; that he was angry when he found the line tree was cut, and made witness go with him over there; that he also told his sons not to go there, or cut anything from that land as it belonged to the Chriscos. On cross-examination, she testified that she and her husband lived on plaintiff's land; that Clark Spencer, her former husband, pointed out the corner to her before the war, and that he obtained the land as heir of his mother who died in 1864. She was also asked whether she could tell anything about the corners in a way to connect them with the survey, or explain the survey, to which she answered that she could only tell where the corners were; that the Moore county line ran through the Spencer land which was now the Yow land, and that there were 60 acres of the Clark and Spencer land in Randolph county at that time; that she was not living with Clark Spencer at the time of his death, and had not been living with him for eight or ten years; that she left Spencer because he was not true to her, and got a divorce from him; that she and Daniel Chrisco never went to Carthage together, and that she did not send Chrisco to Carthage to see about getting a dower for her from the Spencer land; that she was standing at the foot of the bed when Clark Spencer died, and that the other woman was sitting by the side of him. On redirect examination, she was asked the question: "You say that Clark Spencer showed you his corners before his mother died. Explain how he called it his land," and, over defendants' first objection, she stated that he called it his land and his mother's land; that both paid for it; his mother paid $100 at the start, and he kept selling horses and wagons and paid the balance. Plaintiff, on being recalled, testified that the Davis deposition was taken at his house, 400 yards west of where the plaintiff claimed the corner was located, and that on the morning her deposition was taken, she told him what Clark Spencer had said to her about the William Asbill and his own corner, and that Clark Spencer pointed out to her the William Asbill corner as about 50 yards east of where a little branch crossed the old hauling road. Defendant's objection was to the admission of this evidence, and the court instructed the jury to consider it only for the purpose of corroborating witness Davis.

J. T. Brittain and Morehead & Sapp, for appellants.

J. A. Spence, for appellee.

CLARK C.J.

There are three exceptions in this case, all as to matters of evidence. As to the first exception, the evidence was properly admitted on re-direct examination to explain the answer of witness as to matters on cross-examination, which tended to impeach her. As to the second exception the question asked was competent in corroboration, if for no other purpose. Ratliff v. Ratliff, 131 N.C. 431, 42 S.E. 887, 63 L. R. A. 963; Burnett v. R. R., 120 N.C. 517, 26 S.E. 819. If the defendants wished the testimony restricted to that purpose it was their duty to ask the judge to do...