Herbert v. Union Development Co.
| Decision Date | 12 January 1916 |
| Docket Number | 603. |
| Citation | 87 S.E. 515,170 N.C. 622 |
| Parties | HERBERT ET AL. v. UNION DEVELOPMENT CO. |
| Court | North Carolina Supreme Court |
Appeal from Superior Court, Clay County; Ferguson, Judge.
Action by J. C. Herbert and others against the Union Development Company. From a judgment of nonsuit, plaintiffs appeal. Reversed, and new trial ordered.
Plaintiff may use his title on the trial, though not recorded till after commencement of the trial.
This is an action brought for the purpose of determining the title to five several tracts of land embraced in state grants Nos 2865, 2866, 2867, 2868, and 2869, as described in the complaint; plaintiffs asserting ownership thereto as the children and heirs at law of one W. H. Herbert by descent and not by purchase.
The answer of the defendant denied the right of plaintiffs to recover the lands embraced in grants Nos. 2865, 2866, 2868 and 2869, or any interest therein, and disclaimed any right or interest in and to the lands embraced in grant No. 2867 unless the same or a part thereof should lap upon and be covered by sections Nos. 31 and 32 in district No. 13 of Macon county, denying the right of plaintiffs to recover so much of grant 2867 as might be embraced within the boundaries of said section.
At the trial of the action the plaintiffs, for the purpose of showing title in themselves, offered certified copies of certain records from the office of the secretary of state said copies having been certified in one paper by the secretary of state, and being in words and figures as follows:
No. 2865.
State of North Carolina.
Know ye that we have granted unto Wm.E. Herbert Herbert, of Macon Cherokee county, six hundred and forty acres of land on the waters of Nantigalee river on the west side, beginning at a white oak on a ridge S.E. of the Tate branch and nearly S. of its mouth, running N. 55 E. three hundred and twenty poles to a stake; thence S. 35 E. two hundred and thirty-three poles to a stake; then south 55 west four hundred and forty poles to a stake; then north 35 west two hundred and thirty-three poles to a stake, then north 55 east one hundred and twenty poles to the beginning. Entered the 20th day of March, 1859. To hold to the said W.E.H. Herbert, his heirs and assigns, forever. Dated 25th April, 1865.
Corrected by virtue of authority given by Laws of 1889, chapter 460. This 20th day of April, 1891.
Oct. Coke, Sec. State.
I, J. Bryan Grimes, secretary of state of North Carolina, do hereby certify that the foregoing and attached five sheets to be true copies from the records of this office.
In witness whereof I have hereunto set my hand and affixed my official seal.
Done at Raleigh this September 5, 1908.
[Signed] J. Bryan Grimes, Secretary of State.
[Official Seal.]
Only one of the papers is copied as all are alike.
The defendant objected to the introduction in evidence of said copies from the office of the secretary of state and each of them, upon the grounds that they are not, and do not purport to be, grants or abstracts of grants, not having been signed by the Governor, not having been countersigned by the secretary of state, and not having the great seal of the state affixed, and, further, that they do not recite or purport to recite or in any manner indicate that they were signed by the Governor, countersigned by the secretary of state, or attested by the great seal of the state. Objection sustained, and plaintiffs excepted.
The plaintiffs, for the purpose of showing title in themselves, offered in evidence certain records from the office of the register of deeds of Clay county; said records being found respectively in Book F, at page 511, Book F, page 512, and at Book F, page 483, of the records of Clay county, and being in words and figures as follows:
No. 2865.
State of North Carolina.
Know ye that we have granted unto W.E.H. Herbert, of Macon Cherokee county, six hundred and forty acres of land on the waters of Nantigalee river on the west side, beginning at a white oak on a ridge S.E. of the Tate branch and nearly S. of its mouth, running N. 55 E. three hundred and twenty poles to a stake; thence S. 35 E. two hundred and thirty poles to a stake; then S. 55 west four hundred and forty poles to a stake; then north 35 west two hundred and thirty-three poles to a stake; then north 55 east one hundred and twenty poles to the beginning. Entered the 20th day of March, 1859. To hold to the said W.E.H. Herbert, his heirs and assigns forever. Dated...
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