Marsh v. Richardson

• Decision Date: 28 April 1890
• Citation: 11 S.E. 522,106 N.C. 539
• Parties: MARSH v. RICHARDSON.
• Court: North Carolina Supreme Court

11 S.E. 522

106 N.C. 539

MARSH v. RICHARDSON.

Supreme Court of North Carolina

April 28, 1890

Action for recovery of land, tried before CLARK, J., and jury, at February term, 1889, of superior court of Union county.

Plaintiff offered in evidence two deeds executed to himself by the widow and heirs at law of Urias Horn, deceased, bearing date respectively, 1843 and 1851, both of which deeds were duly recorded, and purport to convey, in fee-simple, a tract of land, as represented on the plat by the boundaries 1, 2, 3 etc., to 14, and back to 1:

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Plaintiff next offered in evidence (1) deed from plaintiff to J. A Dunn, dated January 1, 1869; (2) deed from J. A. Dunn to J A. Marsh, bearing same date; (3) deed from J. A. Marsh to the defendant, dated September 20, 1869. The deed to Dunn and the deed to defendant, each conveying 94 acres, are identically the same as to description and quantity of land conveyed by them. The only contention between the parties was as to what land these deeds covered. The plaintiff contended that the land conveyed by him was represented by the letters E, F, C D, G, I, E. The locus in quo is represented by B, A, D, C, B. The deed from J. A. Dunn to J. A. Marsh, as was admitted, covers the same land that was conveyed in said two deeds, and also some land lying south of the line, A, D, G, and adjacent to said line. Defendant claimed the land in dispute only by virtue of said deeds. Plaintiff offered evidence tending to show that the location of the western boundary of the land conveyed by him to Dunn was represented by the line, C, D. Defendant offered evidence in contradiction of same, and tending to show that the location of said western boundary was represented by the line, B, A.

Plaintiff, Marsh, was introduced as witness in his own behalf. Defendant objected to witness testifying as to any transaction or communication between witness and J. A. Dunn, it being admitted that Dunn had died before the institution of this suit; and the court announced that it would exclude all such testimony. Plaintiff testified, among other things, that when he sold the land to Dunn a survey was made, but only one line was run, and that line was from C to D; that witness marked said line with his pocketknife, and put a pine knot at D, and marked four pines as pointers at the point, D. To this testimony defendant objected as being in violation of section 590 of the Code. Court ruled that witness had not testified as to any transaction between himself and Dunn. Objection overruled, and exception. Witness was not allowed to state on direct examination that Dunn was present at the survey, but defendant, on cross-examination of witness, elicted the fact. At the secret survey, defendant was present, and asserted that C, D, was the correct line. J. A. Marsh, grantee of Dunn and grantor of defendant, was introduced as witness for plaintiff, and testified that he was present at the survey made at the time plaintiff deeded the land to Dunn. Defendant objected as violative of section 590 of the Code. Overruled. Exception. Witness testified, defendant objecting, that, at the time of said survey, W. B. Marsh marked four or five pines with a knife at the point, D, and also trees on and along the line, C, D; that no marks were made at A; that the line, B, A, was not run, and that no line was run to A. It was in evidence, not contradicted, that defendant, a year or two before this suit, took possession of the locus in quo, and still holds possession thereof, and that plaintiff was for a long time before the trial in possession of all of the land included within the boundary lying west and south-west of the line, B, A, and contiguous to said line. Defendant was examined, and denied that at the secret survey he asserted that C, D, was the correct line as W. B. Marsh had testified.

The following issues were submitted: "(1) Is plaintiff the owner, and entitled to possession, of the premises? Answer. Yes; from B to D, diagonally across. (2) Does defendant wrongfully withhold possession of the same? A. Yes, in part; from B to D. (3) What damage has plaintiff sustained? A. Five dollars."

The defendant asked the following special instructions: "(1) Where the boundary named in a deed is, is a question of fact for the jury, and what it is, is a question of law for the court; and therefore the boundary of the land in dispute is that named in the deeds from W. B. Marsh to J. A. Dunn, and from said Dunn to J. A. Marsh, and from Marsh to the defendant. Where it is, must be found by the jury from the evidence. (2) In passing upon the question as to where the boundary is, it is the duty of the jury to give full force to every call in said deed, if can be, disregarding none, if not obliged to do so; and, if any part of the description is to be disregarded, quantity, distance, and course must give way in the order named. (3) If the jury should be of the opinion that the description in the defendant's deed covers the land in dispute, they must so find; and the fact that a different line from that called for in the deed was actually run and intended by the parties can make no difference. (4) Even if the jury should find that the plaintiff and Dunn and J. A. Marsh begun their survey at 6 or 9, and ran to D, yet if the description in the deed does not go along that line, but follows the line, B, A, the jury must adopt the latter line. (5) If the jury should find that B is one of the corners called for in the defendant's deed, and that by running the course and distance of the next call a point will be reached in an old field on the line, B, A, by as many as four pines, they will not be justified in changing this line, even though a different line may have been actually run and intended before said deed was written. (6) If the jury should find that the defendant's deeds cover the land in dispute, they must so say, notwithstanding they may believe that the defendant may have said he was satisfied that D was the corner. (7) The fact that W. B. Marsh and J. A. Dunn ran a line, in the absence of proof of an agreement between them that the line run should be established as a boundary, is no proof that the true boundary of the land conveyed is from C to D, as claimed by plaintiff. That there is no proof of an agreement between Dunn and W. B. Marsh that the line C to D was established as a boundary line of the...