Holden v. Cantrell

• Court: South Carolina Supreme Court
• Writing for the Court: JONES, C.J.
• Citation: Holden v. Cantrell, 88 S.C. 281, 70 S.E. 815 (S.C. 1911)
• Decision Date: 31 March 1911
• Parties: HOLDEN et al. v. CANTRELL et al. [D1]

70 S.E. 815

88 S.C. 281

HOLDEN et al. v. CANTRELL et al. ^[D1]

Supreme Court of South Carolina

March 31, 1911

Appeal from Common Pleas Circuit Court of Oconee County; Robt. Aldrich, Judge.

Action by Alice M. Holden and others against Levi R. Cantrell and others. From a judgment for plaintiffs, defendants appeal. Reversed and remanded.

J. R Earle, for appellants. E. L. Herndon, for respondents.

JONES C.J.

The plaintiff sued to recover damages for alleged trespasses upon real estate and recovered judgment against defendants for $6.

The controversy was as to the true location of the boundary line between the adjacent tracts of the parties.

The first exception assigns error in allowing the witness William Holden, one of the former owners and grantors of the land claimed by the plaintiffs, to testify as to who claimed the land and as to the lines and marks, because they were self-serving declarations and hearsay. The record shows the following: "Q. Do you know where the old Grow house was on that branch? A. Yes, sir; I helped to haul the logs to build the house. Q. On whose land was that? A. Where the house was? (Objected to by Mr. Earle.) Q. Who claimed the land where the house was at time it was put there? (Objected to by Mr. Earle.) A. My father owned it. Court Wait a minute. Mr. Earle: It has already been shown by the testimony, Mr. Wiggington, that this house was not on the disputed land; that it was not within the lines; that it was not within the lines claimed by the defendants here, and we think it is improper to go into the details of that. Mr Herndon: It was inside of that fence, which makes it competent. (Objection overruled.)"

It will thus be seen that the objection now urged was not made on the trial, and the rule is not to consider objections to testimony not brought to attention of the trial court. The relevancy of the location and construction of the house and claims of ownership was made to appear by the fact that the house was located near and within the line of a fence built by the Holdens, which extended near the dividing line, as claimed by plaintiff, and through a portion of the land in dispute. Moreover, the declaration of an owner in possession, accompanying and explaining acts of ownership, do not fall within the rule of self-serving declarations and hearsay, but within the rule of res gestæ. Turpin v. Brannon, 3 McCord, 266; Martin v. Simpson, 4 McCord, 262.

The second exception charges error in not allowing the witnesses J. H. Wiggington and J. T. Cantrell to testify as to statements made by J. H. Holden as to the location of the line while he was in possession of the land as owner, there being no dispute or contention between them and no compromise pending. The record shows that the witness Cantrell testified fully as to this matter without any objection being offered. The witness Wiggington had also testified as to the statements of Holden as to the location of the line, without objection, until finally, when questioned whether he did not ask Levi Cantrell, then owner, in the presence of Josiah Holden and others to allow the witness to go down and cut off a corner to keep Alexander from coming down on him (Holden) on the other end, the witness answered that he did not have anything to do with Alexander; that he tried to get them (Cantrell and Holden) to do this as a compromise. Then, upon objection of plaintiffs' counsel, the court ruled that statements made in an effort to compromise should not be brought out. The ruling is supported by Robertson v. Blair & Co., 56 S.C. 104, 34 S.E. 11, 76 Am. St. Rep. 543, Norris v. Ins. Co., 57 S.C. 360, 35 S.E. 572, and other cases. If there was in fact no dispute between Cantrell and Holden and no effort to compromise at that time, the court should have been so informed, as his ruling was based upon the statement of the witness.

The third exception questions the...