Pace v. McAden

• Decision Date: 27 January 1926
• Docket Number: 583.
• Citation: 131 S.E. 629,191 N.C. 137
• Parties: PACE v. MCADEN ET AL.
• Court: North Carolina Supreme Court

131 S.E. 629

191 N.C. 137

PACE v. MCADEN ET AL.

No. 583.

Supreme Court of North Carolina

January 27, 1926

Appeal from Superior Court, Cherokee County; Finley, Judge.

Action by C. A. Pace against Henry M. McAden and others to determine title to land and to remove a cloud from title. Judgment for plaintiff, and defendants appeal. No error.

Evidence admission of which invasion of province of jury, properly excluded.

Action to determine title to land and to remove a cloud from title. The issues were answered as follows:

"(1) Is the plaintiff's grant 15831 located as contended for by the plaintiff, as shown in yellow lines on the map? Answer: Yes.

(2) Is the defendant's grant located as contended for by the defendants as shown by the red lines on the map? Answer: No.

(3) It was adjudged that the plaintiff is the owner of the land described in the complaint, as indicated on the plat by the yellow lines, and that the defendants have no right, title or interest therein."

The defendants excepted and appealed.

(Image Omitted)

M. W. Bell and Dillard & Hill, all of Murphy, for appellants.

Moody & Moody, of Murphy, and R. L. Phillips, of Robbinsville, for appellee.

ADAMS J.

The plaintiff claims title under a grant (No. 15831) issued to Eunice Postell on March 28, 1903, and registered on May 5th next succeeding, and upon the trial he introduced mesne conveyances connecting his title with that of the grantee. The defendants claim under a grant (No. 3111) issued to E. B. Olmsted on November 10, 1867, and registered June 4, 1884, and upon the trial it was admitted that they have an unbroken chain of title, and have succeeded to whatever title Olmsted acquired under this grant. It is therefore obvious that the point of divergence is the location of the grants from which the parties respectively derive their title. Practically all the exceptions taken by the defendants relate to this question.

E. C. Mease, a surveyor introduced by the plaintiff, testified that the platted distance of the first line in the Postell grant is 13 poles in excess of the length designated in the grant, and he was asked on cross-examination whether, if the line stopped at the distance called for, all the following calls shown by the yellow lines would not be changed. Upon objection by the plaintiff the answer was excluded, and the defendants excepted. The witness would have answered:

"We then ran the remainder of the calls from this point at H, which was 13 poles further than the grant calls."

If it be granted that the proposed answer was responsive to the question, an assumption which is not undisputed, it was inadmissible. The line begins "on the southeast corner of tract 642, and runs with the line of said number and No. 356 west 180 poles to the southwest corner of No. 356." The location of the line involves both law and fact, for, if the jury should find the southwest corner of No. 356 to be where the plaintiff contends it is, the line would be extended to this corner. For this reason, it was not competent to show that the line would necessarily be deflected at the end of 180 poles. Gilchrist v. McLaughlin, 29 N.C. 310; Miller v. Cherry, 56 N.C. 24; Bowen v. Gaylord, 122 N.C. 816, 29 S.E. 340; Lumber Co. v. Bernhardt, 162 N.C. 460, 78 S.E. 485; Gray v. Coleman, 171 N.C. 344, 88 S.E. 489; Miller v. Johnston, 173 N.C. 62, 91 S.E. 593. The first exception is overruled.

The beginning corner of the defendants' land is at "a water oak, a corner of No. 7290, on the county line." For the purpose of showing the corner of No. 7290, the defendants introduced a grant to Olmsted purporting to convey the land in No. 7290, and calling for its beginning corner on a water oak west of Young's Camp. It is contended that the beginning corner of both the Olmsted grants is at this oak. The defendants proposed to ask their witness, James H. Crisp, whether William Young had pointed out to him the location of Young's Camp. Young was then dead, and had had no interest in the land. At that time a suit was pending between McAden and one Wright, and the witness surveyed both the Olmsted grants under an order of court. Young's declaration was excluded, and the defendants excepted. Exceptions 3 and 4. Whether both the Olmsted grants were then in controversy is immaterial, for they have a common beginning corner, and the location of this corner would affect, if not determine, the location of each tract.

The requirements for the admission of unsworn declarations are that the declaration be made ante litem motam; that the declarant be disinterested when it is made; and that he be dead when it is offered in evidence. Yow v Hamilton, 136 N.C. 357, 48 S.E. 782; Hemphill v. Hemphill, 138 N.C. 504, 51 S.E. 42; ...