King v. Miller

• Decision Date: 18 May 1888
• Citation: 6 S.E. 660,99 N.C. 583
• Parties: KING et al. v. MILLER et al.
• Court: North Carolina Supreme Court

6 S.E. 660

99 N.C. 583

KING et al. v. MILLER et al.

Supreme Court of North Carolina

May 18, 1888

Appeal from superior court, Mecklenburg county; MACRAE, Judge.

Action in the nature of waste, by Mary C. King and others, as heirs at law of A. C. Miller, against Susan Miller, his widow, and other heirs, who refuse to join in the complaint.Judgment for defendants, and plaintiffs appeal.

Burwell & Walker and J. E. Brown, for appellants.

Bason Jones & Tillett, for appellees.

SMITH C.J.

A. C Miller died intestate in the year 1865, possessed of an estate in fee of lands out of which the defendantSusan Miller has, by proper proceedings, caused a portion consisting of a tract of 250 acres, and a small lot of 2 1/2 acres, as described in the complaint, to be assigned to her as dower.The reversion in the lands so set apart has descended to the plaintiffs, and the defendants associated with the said Susan, because they refuse to join in the action, as tenants in common.The plaintiffM. C. King added to her share by taking a conveyance of the share of A. C. Elwood, one of the heirs to whom the inheritance descended.The complaint alleges the commission of waste upon the premises by the life-tenant in cutting down, for the purpose of sale, and selling, large numbers of valuable trees, oak, hickory, pine, and other wood, for timber and fire-wood, and in other ways specified therein greatly damaging the inheritance, and concludes by demanding the possession of the land wasted, and $500 for the damage done thereto.The defendant Susan, admitting the title to be, as alleged by the plaintiffs, in them and in the other defendants, in undivided parts, denies the charge of waste, and the owners, made defendants, make no answer to the complaint.Two issues were submitted to the jury: (1) Did the defendantSusan Miller commit waste upon the lands described in the complaint?(2) What damage, if any, have the plaintiffs sustained by reason thereof?To the first inquiry the jury responded in the negative, and no answer was returned to the other.

The testimony of the witnesses is set out in full in the case on appeal, and we deem it necessary to reproduce, in condensed form, so much of it as tends to show the acts of the tenant in dower, in which the waste is alleged to have been committed, and illustrative of the charge complained of, and to present the exceptions to the rulings upon questions of evidence.One McClure, for the plaintiffs, testified that at the intestate's death, in 1865, he had from 80 to 100 acres in cultivation, and since from 20 to 30 acres had been cleared; that there was considerable wood (pine, oak, and hickory) on the tract; that some of the open land was in good farming condition, other parts of it pretty well worn out and thin; that John Hunter and John Deaton cut saw-logs, most of it from dead wood; that witness has seen several persons hauling wood to town; that the woodland adjoining that belonging to witness was pretty heavily timbered, but most of the saw-logs were taken off by Hunter; that a small piece of meadow, laid off for dower of three or four acres, two acres of which had timber on it, has been ditched and planted in corn, and is now in very good condition; that the intestate had a large body of land, besides that assigned in dower, much of which was thin and began to wear out, and some he had turned into pasture; that the land abandoned by the defendant, as worn out, has grown up in timber and improved; that she has turned out land as it became impoverished, and has cleared other land and done no more, in this direction, than was necessary to make her a comfortable living; that considerable improvement requiring the use of timber has been put on the place; that the saw-logs cut were of scattering pine, and the oak timber is there yet; that the meadow was very wet, kept for moving by the deceased, and witness cannot say that it is not worth as much now as before the clearing; that it is a custom among farmers to clear more land as that in cultivation was worn out, but this depends upon the amount of timber-land on a farm, and that cutting out timber trees gave the young timber great facilities for growth.The defendant objected to the testimony as to the usage in that part of the country to turn out worn out and impoverished lands, and replace them with new clearings; but it was admitted, and to this ruling the first exception is taken.John Henderson swore that good crops were made by the deceased on the land where his widow now lives; that part of the place was very good, part broken; farm on an average in good condition; fences in repair; a forest in oak, hickory, and old field pine, over 100 acres, and about 60 acres of it kept in forest; that stock timber has been cut on both north and south ends of the tract; that some 30 acres have been cleared since A. C. Miller's death, and this generally yields 30 cords to the acre.The witness thinks the removal of the timber trees from the meadow has lessened its value by $10, but it brings as fine corn as any land in that country, and says that the deceased had the farm in possession some 17 years, and had himself thrown out, as unfit to cultivate, 7 or 8 acres, some of it having been tended apparently 50 years; that the defendant has kept up the premises, not, however, in the state in which her husband left them, has moved old houses, but built no new ones, and these are getting old and in decay, and the fences have all gone down under the stock law.Other witnesses were examined by the plaintiffs and gave substantially similar testimony, one of whom stated that the prevalent custom was to get fire-wood where it was found; that it was good husbandry to cut out dead wood, and that farmers were in the habit of throwing out land when worn out, and taking in more, but that the practice "has gradually passed off since the war."The defendant then proposed to show that this witness was a farmer living in that vicinity, and that in his opinion the defendant had done no more than was necessary to make a living out of the land.Objections thereto were overruled, the evidence admitted, and to this the second exception is taken.The testimony for the defendant, in substance, was to this effect: One Henderson, who lives near the land, and has long known it, testified to the intestate's manner of farming, and his habit of abandoning land when reduced to sterility and unfit to tend, and clearing and opening fresh land, and such is the general custom; that, when turned out, such exhausted fields grow up in pine, and recuperate materially, as is the case here; that this was necessary to make a subsistence, and that the work done on the meadow has rendered it more valuable.Mr. Orr, a farmer and cropper for 21 years, went upon the land in 1866, and found some of it very good upland, some branch bottom of no account; fair crops could be made by manuring, and, when the land was too impoverished to pay, it was left out and other taken in; cleared the plantation as far as needed, and what was not needed hauled to town and sold; about 30 acres taken in, and from 40 to 60 acres left out; the clearing was necessary for a support to defendant, and her tenants, and to carry on farming operations; of the part thus abandoned, the growth of pines on it has improved it very much and increased its value, and such has been the effect of work upon the meadow; good stocks hauled away by her and Hunter, who hauled and sawed; hauled defendant's part back, and, when needed, we would borrow from him, and repay by letting him get saw stocks; one-fourth taken for the timber, and none of it sold; fire-wood in summer obtained by picking up poles and dry wood; in winter, solid wood was used, and trees would be felled when the tops were dying.He further testified that some fire-wood has every year been sent to town for sale, that is, once in a while; and sometimes wood from cleared land, not used on the premises, was sold by tenants.The defendant testified for herself similarly about the abandoned and cleared parts of the farm, and that it was necessary for her to get a support; that she never sold any stocks of her lot, but used them on the premises for houses, farm, palings, etc.Upon her examination her counsel proposed to prove that she sold the meadow tract some four or five years ago to one Hunter, but made no deed, nor was there any writing about it.The plaintiff objected on the ground that title would not pass, nor could a deed be spoken of without its being produced.The evidence was received, and the exception to the ruling is the third in the series.It is not necessary to recite the additional testimony to present the erroneous rulings assigned, as it is of the same kind as that set out, and concurrent in general tenor with it, and we proceed to state them.

Plaintiffs' instructions: Among other instructions prayed by plaintiffs was the following: (1) That if the jury believe the evidence in the case, they will respond to the first issue "Yes."(2) That if she(the defendant) allowed any fire-wood to be cut on the place for market, and solely for the purpose of profit, she committed waste, and the jury will answer the first issue, "Yes," and assess as damages such amount as will be a fair and reasonable compensation for the injury to the inheritance.(3) That if defendantSusan Miller converted meadow into arable land or cultivated land, she was guilty of waste, and the jury...