Matthews v. Matthews

• Decision Date: 31 December 1843
• Citation: 26 N.C. 155,4 Ired. 155
• Court: North Carolina Supreme Court
• Parties: WILLIAM MATTHEWS v. EZEKIEL MATTHEWS.

26 N.C. 155

4 Ired. 155

WILLIAM MATTHEWS

v.EZEKIEL MATTHEWS.

Supreme Court of North Carolina.

December Term, 1843.

Where there is a summary proceeding of an inferior tribunal, as in a case under the processioning Act, not according to the course of common law, the party is entitled, ex debito justitiæ, to a certiorari to bring it up for review in the matter of law.

The report of a processioner ought to state the lines claimed by each party, and that while running a line, as claimed by one party, he was stopped by the other; and must set forth particularly the locality of the line thus claimed, and of the part of it, at which he was stopped, so as to constitute an issue on the boundary.

The cases of Wilson v Shuford, 3 Mur. 504, and Carpenter v Whitworh, 3 Ired. 204, cited and approved.

Appeal from the Superior Court of Law of Randolph County at the Fall Term, 1843, his Honor Judge MANLY presiding.

The following is the case, as it appears from the record. At August Term, 1839, of Randolph County Court, John D. Brown, a processioner of Randolph County, reported to the Court, that he had been required by William Matthews to procession a tract of land for him, and, particularly, to establish the lines between his land and that of Ezekiel Matthews; and that on the 23d day of May, 1839, he met the said parties on the said land of William Matthews (which is not described) and “proceeded to ascertain the black jack corner, then down, from which corner East was one of the lines between the said William and Ezekiel; and, after running two lines, your processioner, from particular circumstances, thought it doubtful, where the black jack corner formerly stood: and that it was then agreed between the said parties, that your processioner should run and procession the line, between the said Ezekiel and the said William, South from where the line East from the black jack corner, after having gone down the various courses of a certain branch from a stone corner, would intersect the county line of Chatham, to William Matthews' corner: and that your processioner then, in order to ascertain where that corner was, commenced running at a marked post-oak, which was said to be in the county line, and run without measuring due South to the aforesaid branch, the said parties being present with their deeds: And that your processioner then had the chain stretched, and after running on due South one chain and eighteen links, he was forbidden by the said Ezekiel to proceed farther, upon the plea, that he was running on the said Ezekiel's land, he, the said Ezekiel, claiming the land from that place East as far as the said branch with its various courses to Bush creek; and the said William claiming the land East from a straight line running from a corner, formerly Pickett's corner, on the North side of his plantation to an oak, now Aaron Moffitt's and the said Ezekiel's corner, so far as his land extends.”

On the foregoing report five freeholders were appointed, who, with the processioner, were to ascertain and report, “where the true line is between the said parties.” At the next term they made a report, accompanied by a plat in explanation, and thereby established the point where the black jack formerly stood, and a line from that point North 89° 60?? East 15 chains to a branch, as one of the lines between the parties; and it also established two other lines, not necessary to be particularly stated in reference to the point now before the Court; and these lines were, as stated in this report, all the disputed lines.

At November Term, 1840, the report was confirmed and judgment given against E. Matthews for costs. In January, 1841, he obtained a certiorari, on his affidavit stating that he had prayed an appeal, and was induced to abandon it, by the agreement of William Matthews not to insist on the judgment, but to refer the suit to arbitration; and that, after the Court adjourned, he refused to do so.

Upon the return of the certiorari, there were affidavits on both sides upon the point of an amicable arrangement by a reference. And E. Matthews offered other affidavits, which establish satisfactorily, that the principal contest was as to the locality of the line between Chatham and Randolph, which, running North and South, divides the lands of these parties; and that the Commissioners were entirely misled as to the true line. William Matthews opposed the reading of these latter affidavits, and insisted that the case was to be decided upon the record from the County Court. But the Court heard the affidavits, and, upon them and the record, reversed the judgment of the County Court, quashed the report of the free holders, and ordered the same to be certified to the County Court, with directions to proceed further in the cause agreeably to justice and right. From that decision William Matthews appealed.

Winston for the plaintiff .

Mendenhall and Iredell for the defendant .

RUFFIN, C. J.

We do not stop to enquire into the particular cause, why E. Mathews did not appeal; nor whether it would have been proper on an appeal to hear affidavits as to the merits, which were not offered in the County Court; because taking up the case upon the record alone, as urged by W. Matthews, we think it must be determined against him. This being a summary proceeding of an inferior tribunal, not according to the course of the common law, we think the party entitled ex debito justitiæ, to a certiorari to bring it up for review in the matter of law, as in other cases on a writ of error: and if found to be erroneous, to have...