Halstead v. Mullen

• Decision Date: 31 October 1885
• Citation: 93 N.C. 252
• Court: North Carolina Supreme Court
• Parties: E. C. HALSTEAD et al. v. F. H. MULLEN et al.

93 N.C. 252

E. C. HALSTEAD et al.

v.F. H. MULLEN et al.

Supreme Court of North Carolina.

October Term, 1885.

This was a CIVIL ACTION tried before Shepherd, Judge, at Fall Term, 1885, of CAMDEN Superior Court.

There was a verdict and judgment for the plaintiffs, from which defendants appealed.

The facts are stated in the opinion.

Messrs. Grandy & Aydlett and E. F. Lamb, for the plaintiffs .

Messrs. Pace & Holding and Geo. V. Strong, for the defendants .

SMITH, C. J.

The complaint alleges the plaintiffs to be the owners of the land, the boundaries whereof are given, the entry thereon of the defendants in June, 1882, and their cutting and removing the timber growing thereon, to their damage two thousand dollars. The defendants deny the plaintiffs' title, or that they have ever trespassed upon their land. The only issues submitted to the jury were as to the alleged trespasses on the plaintiffs' land, and by which of the defendants, if any, were they committed, and the extent of the damage done. The verdict is for the plaintiffs, designating by name all the defendants charged, and ascertaining the damages.

Upon the trial, it appeared that the lands of the plaintiffs and of the defendants were adjacent, and the controversy was confined to the question of the proper location of the dividing line, and whether the timber was on the plaintiffs' land and within their boundaries. To ascertain the position of the disputed line, it became necessary to locate one of the lines in the plaintiffs' deed, which describes it as running “up to and along the Joab Overton line.” A witness, who had been the slave of a former proprietor, under whom the plaintiffs claimed, testified, after objection made and overruled, that about forty years ago his master directed him not to cut timber beyond Overton's line, and that Overton would show where the line was. That soon after Overton pointed out to witness the division line, the place of which the witness then testified to. It was in evidence that Overton was then in the actual possession of this land, and has been dead for many years. The plaintiffs' deed, upon this location, places the disputed land within its boundaries. The admissibility of the declarations of Overton is the only question presented for consideration in the record brought up on the defendants' appeal.

The inquiry does not call for an elaborate examination, since it is substantially answered in two cases adjudicated in this Court.

In Mason v. McCormick, 85 N. C., 226, in answer to an objection to similar declarations of a deceased owner of an adjoining tract, the Court use this language: “The declaration, moreover, is not used to ascertain and fix the limits of the declarant's own land, but the corner of an adjoining tract, to determine its location, and the evidence is not rendered incompetent, because that corner is coincident with one of his own boundaries.”

And more recently in Fry v. Currie, 91 N. C., 436, the deed of a deceased party was received as his declaration of the boundary line of an adjacent tract, and the Court, overruling an objection to the competency of the evidence say: “Would not his declaration, made when alive, be competent as hearsay, not to locate his own, but the boundary of an adjacent tract that calls for and touches it? The evidence does not come from an interested party to subserve some purpose and to secure some advantage to himself, but it is a concession in disparagement of his claim to a wider boundary for his own land.”

These cases dispose of the exception.

The appellant's counsel here, for the first time, move in arrest of judgment for alleged imperfections in the statement of the plaintiffs' cause of action, in that:

(1). The complaint fails to allege that the plaintiffs had title before and at the time of the defendants' entry;

(2). The entry is not charged to have been forcible or wrongful, and may have been permissive and lawful, so as not to be in conflict with any right in the plaintiffs.

The motion is based upon §242 of The Code, as construed in Meekins v. Tatum 79 N. C., 546; Williamson v. Canal Co., 78 N. C., 156, and other decided cases. The section applies to complaints that fail “to state facts sufficient to constitute a cause of action,” possessed by the plaintiff to be enforced against the defendant, or in other words, when it appears therefrom that the action will not lie. But imperfect statements, or omissions in the allegations, not of the substance of the cause of action, should be pointed out by demurre...