Cowles v. Lovin

• Decision Date: 24 May 1904
• Citation: Cowles v. Lovin, 47 S.E. 610, 138 N.C. 488 (N.C. 1904)
• Parties: COWLES . v. LOVIN.
• Court: North Carolina Supreme Court

47 S.E. 610

138 N.C. 488

COWLES .

v.LOVIN.

Supreme Court of North Carolina.

May 24, 1904.

EJECTMENT— DOCUMENTARY EVIDENCE—IDENTIFICATION — INSTRUCTIONS—NECESSITY TO REQUEST — APPEAL—EXCEPTIONS—HARMLESS ERROR.

1. Where the deposition of a nonresident surveyor who made certain plats of the land in controversy was taken, but no attempt was made therein to identify or explain the plats and certificates, and they were not otherwise proved, the court properly refused to permit them to be introduced in evidence.

2. Erroneous admission of evidence which was subsequently excluded by the court was harmless.

3. Where an exception to an instruction did not correctly set out the same it could not be 'reviewed on appeal.

4. Mere omission to charge on a particular point is not ground for exception after verdict, unless the court was requested in apt time to give the instruction.

Appeal from Superior Court Graham County; Hoke, Judge.

Action by Calvin J. Cowles against S. B. Lovin. Prom a judgment in favor of defendant, plaintiff appeals. Affirmed.

Dillard & Bell and T. A. Morphew, for appellant.

E. B. Norvell, for appellee.

WALKER, J. This action was brought to recover possession of several tracts of land described in the complaint. The plaintiff, in support of his title and right to possession, introduced in evidence certain grants and mesne conveyances connecting his title with those grants. There was evidence tending to show that the grants and deeds covered the locus in quo. The defendant resisted the plaintiff's recovery upon the grounds (1) that it had not been sufficiently shown that his paper title embraced the land in dispute, and (2) that the defendant and those under whom he claimed had been in adverse possession of the land for seven years under color of title. The court held that there was no evidence to sustain the defendant's second ground of defense, and, that being eliminated, the case turned entirely upon the question whether the plaintiff had sufficiently located the grants under which he claimed the land. The court charged the Jury fully on the question of boundary, and left it to them upon the evidence to say whether the descriptions in the grants introduced by the plaintiff included the disputed land. The jury, in answer to the issue submitted to them, found that they did not, and, judgment for the defendant having been entered on the verdict, the plaintiff excepted and appealed.

In order to locate the grants, the plaintiff offered in evidence certificates of survey made by H. P. Hyde, to which certain plats were annexed. The certificates were in the handwriting of Hyde, who was county surveyor when they were made. Hyde was living in the state of Texas at the time of the trial. The defendant objected to this evidence, and it was excluded. This is the subject of the plaintiff's first exception. The deposition of Hyde, who had made a survey under order of the court in this case, was taken and read at the trial, but no reference was made therein to the plats and certificates. The latter show the location of the tracts of land as claimed by the plaintiff. It was not shown, or at least it does not appear in the case, at what time, or under what circumstances, or for what purpose the plats and certificates were made by Hyde. He was examined as a witness before a commissioner, and his deposi-non was a part of the evidence. It does not appear therefrom that he was asked any questions In regard to the plats and certificates, or that any attempt was made to identify or explain them, so as to make them admissible under any known rule of evidence. They are nothing more than the written declarations of a third person who is living as to the boundaries of the land. After a most careful consideration of the argument and authorities cited by the plaintiff in support of their...