Livingston v. Dunlap

• Decision Date: 23 April 1888
• Parties: Livingston et al. v. Dunlap.
• Court: North Carolina Supreme Court

6 S.E. 200

(99 N.C. 268)

Livingston et al.

v.Dunlap.

Supreme Court of North Carolina.

April 23, 1888.

New Trial—Admission of Immaterial Evidence—Misleading Jury.

Where evidence that is immaterial, and not calculated to mislead the jury, is admitted against objection, but the court charges that it is immaterial, and not to be considered, and it does not appear that the jury was in fact misled, a new trial will not be granted.

Appeal from superior court, Henderson county; Graves, Judge.

Action for the recovery of land by Joseph and H. C. Livingston against Columbus Dunlap. Judgment for plaintiffs, and defendant appeals.

S. V. Pickens and T. F. Davidson, for appellees.

Merrimon, J. This action is brought to recover the land described in the complaint. The pleadings raised issues of fact. On the trial the plaintiffs in-troduced evidence for the purpose of proving a continuous chain of title consisting of numerous mesne conveyances from the state to them. In the course of the examination of a witness for this purpose, the appellant objected to the admission of certain testimony in respect to the location of the particular grant from the state, which the appellees proposed to elicit from him. The court overruled the objection, admitted the evidence, and the appellant excepted. The court, in its instructions to the jury, told them that the plaintiffs had failed to show a perfect chain of title; that a material mesne conveyance was necessary; that the location of the grant referred to was immaterial; and that the evidence of the witnesses objected to was likewise immaterial, and the plaintiffs could only rely upon the evidence that went to prove a continuous possession of the land up to known and visible lines and boundaries under color of title for seven years, etc. There was a verdict and judgment for the plaintiffs, and the defendant appealed to this court. The court instructed the jury explicitly that the evidence objected to, and the grant to which it referred, turned out in the course of the trial to be immaterial, and that the plaintiffs could recover, if at all, upon an entirely different kind of title, of which there was appropriate evidence. The jury were thus cautioned against the immaterial evidence. It did not, in its nature and application, tend to mislead them, nor did it so in fact, so far as appears. If it did so in fact, the appellant should have made this appear in some way. The admission of immaterial evidence is not always ground for a new...