Dobson v. Whisenant

• Decision Date: 03 December 1888
• Parties: DOBSON et al. v. WHISENANT.
• Court: North Carolina Supreme Court

8 S.E. 126

101 N.C. 645

DOBSON et al. v. WHISENANT.

Supreme Court of North Carolina

December 3, 1888

Appeal from superior court, Burke county; J. H. MERRIMON, Judge.

Dobson et al. sued one Whisenant to recover possession of land. Judgment for plaintiffs, and defendant appeals.

Where there had been an order of survey, which had not been executed, the county surveyor, when called as a witness as to the lines of the land in controversy, may use a map of a former survey, made by him, to explain his testimony to the jury, though the map itself is inadmissible.

I. T Avery, for appellant.

J. G Bynum, for appellees.

DAVIS J.

The case on appeal is as follows: "To show the location of the land in dispute, the plaintiffs introduced as a witness D. F. Denton, who testified that he was county surveyor of Burke; that he surveyed the calls of the grant under which plaintiffs claim in the fall of 1881. Witness was then handed a map of the survey made by him in 1881. Defendant's counsel objected to the use of the map by witness in giving his testimony to the jury, upon the ground that the survey was made in 1881, not in pursuance of any order made in this action that there had been orders of survey made. There was no map of any survey shown, nor was it suggested that there was any map in existence, or that any such survey had ever been made. The court overruled the defendant's objection to the use by the witness of the map, stating at the time that the map itself was not evidence, but that the witness might use it to explain his testimony to the jury. Defendant excepted. The plaintiffs introduced in evidence a deed from E. J. Ervin, clerk and master, etc., to the plaintiffs in this action, dated November 7, 1870, and this deed was relied on by the plaintiffs to show title in themselves through a regular chain from the state. S. F. Conley, a witness on behalf of the plaintiffs, testified, without objection, that he knew the lines of this deed, and that they embraced the land in dispute. After the evidence on both sides was all in, and the argument of one of the defendant's counsel had been made, the court was asked to instruct the jury, on behalf of defendant, as follows 'That as the deed to the plaintiffs, of date 1870, and under which they claim, calls for Isaac T. Avery's line, and, adopting said line, and running with said line, the plaintiffs' boundary must be settled by first ascertaining the boundary of said Avery tract, and that would locate the plaintiffs' boundary; and that, if the jury find that said Avery's line covers all the land of which defendant was in possession at the commencement of this action, plaintiffs cannot recover.' The grant from the state, under which the plaintiffs claim, was to one Abraham Corpening, and was issued December 5, 1815, upon an entry dated January 1, 1814. The plaintiffs' witness S.E. Conley testified that he knew the land, knew its corners; that he was present at the survey made in 1881, and pointed out every corner; and the witness Denton testified that the defendant was in possession inside of the boundary of this grant. Conley, on cross-examination, said he knew the line of the I. T. Avery land. The grant relied upon by the defendant was issued by the state to Waighstill Avery in November, 1817, upon an entry made on the 4th day of January, 1814. The court declined to give the special instructions asked for, and defendant excepted. No other exceptions were taken by the defendant. As there were no exceptions to the charge of the jury, it is...