Poole v. Gentry
| Decision Date | 29 September 1948 |
| Docket Number | 104 |
| Citation | 49 S.E.2d 464,229 N.C. 266 |
| Parties | POOLE et ux. v. GENTRY et ux. |
| Court | North Carolina Supreme Court |
[Copyrighted Material Omitted]
The plaintiffs, C. W. Poole and wife, Sarilda Poole, sued the defendants, Ben Gentry and wife, Pearl Gentry, to recover certain land and damages for its alleged wrongful detention. The plaintiffs and the defendants made conflicting claims to title and right to possession of the property in controversy through a common source, towit Gilliard Tweed, who died testate while seized in fee of a large tract of land lying north of Shelton Laurel Creek in Madison County and embracing the locus in quo.
Subsequent to the death of Gilliard Tweed, namely, in 1929, his land was partitioned among his devisees in a special proceeding in conformity with article 1 of chapter 46 of the General Statutes. Tract No. 3 was allotted to Ethel Tweed and was described as beginning on a hemlock near the north bank of Shelton Laurel Creek and running thence 'north 7 degrees east 60 poles to a stake in east line; then with said line 33 poles more or less to Tract No. 2; thence south 32 degrees west 69 poles to a white oak; thence west with creek 6 poles to the beginning. ' Tract No. 4 was allotted to Love Tweed under this description: 'Beginning on a red oak at bank of Shelton Laurel Creek (and runs) thence north 7 degrees east 62 poles to east line; thence with said line south 86 degrees east 14 poles more or less to corner of Tract No. 3; thence south 7 degrees west 60 poles to a hemlock, corner of Tract No. 3; thence west with the creek 11 poles to the beginning. ' It thus appears that the western boundary of Tract No. 3, which was described in its first call, and the eastern boundary of Tract No. 4 which was defined in its third call, were identical.
On December 30, 1930, Ethel Tweed deeded the southern part of Tract No. 3 to Ella Franklin, and on June 21, 1944, Ella Franklin, with the joinder of her husband, A. J. Franklin, conveyed such portion of Tract No. 3 to the defendants. On December 17, 1936, Love Tweed transferred Tract No. 4 in its entirety to the plaintiffs.
By consent of the parties entered in the minutes, the action was tried by Judge Sink without a jury under G.S. s 1-184. The defendants presented virtually uncontradicted testimony indicating that they and their grantors, A. J. Franklin and Ella Franklin, had resided upon and cultivated the locus in quo during the fourteen years next preceding the issuance of the summons.
The plaintiffs bottomed their case upon the theory that the property in dispute lay inside Tract No. 4 owned by them, and the defendants based their claim upon the proposition that such property was situated within the portion of Tract No. 3 belonging to them. Hence, the decision was properly made to hinge upon the determinative question as to the location of the locus in quo. The plaintiffs and the defendants produced diametrically conflicting evidence in support of their respective contentions as to the location of the real property in controversy. After hearing such testimony and the argument of counsel for the parties, Judge Sink found as facts that the locus in quo lay within the portion of Tract No. 3 owned by the defendants and concluded that it belonged to the defendants and entered judgment accordingly. From this judgment, the plaintiffs appealed, making twenty assignments of error.
Calvin R. Edney, of Marshall, and George M. Pritchard, of Asheville, for plaintiffs, appellants.
Carl R. Stuart, of Marshall, for defendants, appellees.
Exceptions 19 and 20 challenge the validity of the findings of fact and conclusions of law of the trial judge and the judgment entered thereon upon the ground that the findings of fact were 'based upon incompetent evidence and contrary to the weight of all the evidence. ' These exceptions are unavailing. The parties waived trial by jury to the issues of fact in compliance with the provisions of the pertinent statute. G.S. s 1-184. This being the case, the findings of fact of the trial judge are as conclusive as the verdict of a jury if there was evidence to support them. Eley v. Atlantic Coast Line Railroad Co., 165 N.C. 78, 80 S.E. 1064. The record contains abundant testimony to justify the findings of fact in question, and the facts found are sufficient to sustain the judgment entered. Fish v. Hanson, 223 N.C. 143, 25 S.E.2d 461. Even if there were a foundation for the reason assigned for it, the objection that the findings of fact were 'based upon incompetent evidence' comes too late. The plaintiffs permitted practically all of the evidence of the defendants to be introduced without objection. Webb v. Rosemond, 172 N.C. 848, 90 S.E. 306; 53 Am.Jur., Trial, section 135. Moreover, the record discloses indisputably that the testimony of the defendants supporting the findings of fact of the trial judge was competent. It came from witnesses who assisted in partioning the lands of Gilliard Tweed among his devisees in 1929, and from surveyors who subsequently surveyed Tracts Nos. 3 and 4 on the basis of information derived from such witnesses and the muniments of title of the parties. Southern v. Freeman, 211 N.C. 121, 189 S.E. 190; Roane v. McCoy, 182 N.C. 727, 109 S.E. 842; Becton v. Goodman, 181 N.C. 475, 105 S.E. 875.
Exceptions 1 and 11 are addressed to rulings of the trial court sustaining objections to questions propounded to...
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