Hemphill Et Ux v. Hemphill

• Decision Date: 25 May 1905
• Citation: 138 N.C. 504,51 S.E. 42
• Court: North Carolina Supreme Court
• Parties: HEMPHILL et ux. v. HEMPHILL et al.

138 N.C. 504

51 S.E. 42

HEMPHILL et ux.

v.HEMPHILL et al.

Supreme Court of North Carolina.

May 25, 1905.

1. Evidence—Hearsay—Declarations as to Boundaries—Interest of Declarant.

Recitals of a deed as to the location of the grantor's boundary line are hearsay on the issue of the true location of such line, because of the interest of the grantor.

2. Same—General Reputation — Boundary Lines.

On the issue of the true location of a boundary line, evidence of a witness who had known the land for 50 years, and knew the general reputation in the community as to the true location of the line, and that, according to such reputation, it ran along the top of a certain ridge, is competent, under the rule admitting evidence of general reputation as to the location of divisional lines where the same has its originat a time comparatively remote and ante litem motam, and attaches itself to some monument or natural object

[Ed. Note.—For cases in point, see vol. 8, Cent Dig. Boundaries, § 155.]

Appeal from Superior Court, Buncombe County; Justice, Judge.

Ejectment by Benjamin C. Hemphill and wife against T. C. Hemphill and others. From a judgment for plaintiffs, defendants appeal. Reversed.

The question at issue is the location of the line dividing the lands of the plaintiffs and defendants. Both of these tracts originally constituted one tract, owned by Andrew Hemphill. About 1850 a parol division of this land was made between B. C. Hemphill, one of the plaintiffs, and John R. Hemphill, both sons of Andrew Hemphill. The plaintiffs claim that the line in question, located when the land was divided, runs from the mouth of the branch emptying into Reem's creek to the point of a ridge, and thence in a southeasterly direction on the face of the mountain across minor ridges and gullies to the Jump Corner. The defendants claim that the line runs from the mouth of the branch to the point of the ridge, and thence in a northeasterly direction up the ridge to the Vance line. Between these two lines contended for is the triangular piece of land in controversy. In 1800 John R. Hemphill executed a bond for title to a portion of the land to John Brigman. John Brigman died, and John R. Hemphill, in accordance with the terms of the bond for title, executed a deed to the heirs of John Brigman. This land was sold by J. G. Chambers, administrator of John Brigman, to pay the intestate's debts, and James Hemphill became the purchaser. James Hemphill conveyed the land by deed to his children, Eliza, Jane, Brank, and Bettie Shope, defendants. Verdict and judgment for the plaintiffs, and the defendants appealed.

Frank Carter, Locke Craig, and H. C. Chedester, for appellants.

Moore & Rollins, for appellees.

HOKE, J. (after stating the facts). The rights of the parties to this controversy were made to depend upon the correct location of the divisional line between Benjamin C. and John R. Hemphill, under whom the defendants claim; and the defendants contend that the true location of this line runs from the "mouth of the branch to the point of the ridge, and thence in a northeasterly direction up the ridge to the Vance line." In order to establish this position, the defendants offered, first, the deed from John R. Hemphill, now dead, to the heirs of John Brigman, bearing date November 14, 1866, as a declaration of John R. Hemphill on the correct location of the line in dispute. The defendants further proposed to prove by a witness (John G. Chambers) that he had known the land in controversy for 50 years; that he knew the general reputation in that community as to the true...