Hill v. Bean

• Decision Date: 14 April 1909
• Citation: 64 S.E. 212,150 n. c. 436
• Court: North Carolina Supreme Court
• Parties: HILL et al. v. BEAN et al.

64 S.E. 212

(150 n. c. 436)

HILL et al.

v.BEAN et al.

Supreme Court of North Carolina.

April 14, 1909.

1. Evidence (§ 222^*)—Admissions—Declaration in Disparagement of Title.

In an action to recover land claimed by defendants through adverse possession, testimony of a witness as to a conversation with one of the defendants while the defendant was living on the land concerning a letter to plaintiffs was properly admitted, in so far as it did not relate to the contents of the letter, to prove a declaration by the defendant in acknowledgment of plaintiffs' title, and in disparagement of her own.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 768-808; Dec. Dig." § 222.*]

2. Appeal and Error (§ 204*)—Reservation op Grounds or Review—Failure to Raise Point in Lower Court.

Where the objection that evidence introduced which was competent as against one defendant was not so as against the others was not raised by a request that the court restrict it, and no such ground of objection is stated in the statement of case, the question cannot be considered on appeal under Supreme Court Rule 27, 140 N. C. 662 (53 S. E. viii), providing that it will not be ground of exception that evidence competent for some purposes, but not for all, is admitted generally, unless appellant ask at the time of admission that its purpose be restricted.

[Ed. Note.—For other cases, see Appeal and Error, Cent. Dig. § 1274; Dec. Dig. § 204.*]

3. Principal and Agent (§ 21*)—Evidence or Agency—Testimony op Agent.

Testimony of a person that he was the agent of others, and as such had charge of land, paid taxes, and collected rents, was competent to prove the agency; it not being proof of agency by declarations of the alleged agent.

[Ed. Note.—For other cases, see Principal and Agent, Cent. Dig. § 39; Dec. Dig. § 21.*]

4. Adverse Possession (§ 116*)—Trial—Instructions.

In an action to recover land claimed by defendants through adverse possession, where the court correctly charged as to what would constitute adverse possession by defendants such as to defeat plaintiffs' recovery, and that, if a third person cut timber on the land without the knowledge or acquiescence of defendants, it would not affect their claim, but that if would be otherwise if he was recognized by defendants as acting for plaintiffs, it was not error to refuse a charge that possession of the land for the continuous period of 20 years raises a presumption that the person in possession had a title therefor, and the fact that a third person cut timber from the land without defendants' knowledge would not be such a possession as to defeat their title by adverse possession, and rebut the presumption.

[Ed. Note.—For other cases, see Adverse Possession, Cent. Dig. § 66; Dec. Dig. § 116.*]

Appeal from Superior Court, Randolph County; Long, Judge.

Action by Charlotte L. Hill and others against Kirby Bean and others. Judgment for plaintiffs, and defendants appeal. Affirmed.

The special instruction asked by defendants was as follows:

"The court instructs the jury that possession of the land for the continuous period of 20 years raises a presumption that the party in possession has a title therefor, and the fact that the witness Thayer cut timber from the land in controversy without the knowledge of the defendant would not be such a possession as to defeat the title of the defendants by adverse possession and rebut the said presumption."

J. G. Brittain and Elijah Moffitt, for appellants.

Hammer & Kelly and J. A. Spence, for appellees.

WALKER, J. This action was brought to recover two contiguous tracts of land containing about 168 acres. Title was admitted to be out of the state, and the plaintiffs own the land unless the defendants have acquired title thereto by adverse possession. The plaintiffs alleged that the defendants' possession was not adverse, but they held the same by permission of the plaintiffs. In order to show that the defendants were merely tenants of the plaintiffs, the latter introduced as a witness Scott Smoke, who testified as to a conversation between him and Emily Bean, one of the defendants, while she was living on the land, concerning a letter to the plaintiffs. The court excluded the testimony so far as it related to the contents of the letter, but...