Redmond v. Stepp

• Decision Date: 07 May 1888
• Court: North Carolina Supreme Court
• Parties: Redmond et al. v. Stepp.

6 S.E. 727

(100 N.C. 212)

Redmond et al.

v.Stepp.

Supreme Court of North Carolina.

May 7, 1888.

1. Boundaries—State Line—Question for Jury.

In ejectment the last call but one in plaintiffs' patent, dated in 1796, was "thence south 106 chains to a stake on the South Carolina boundary line, " and the last call, "thence with said line east to the beginning." The state boundary line has been moved since the date of the patent. Held, that it was for the jury to determine where the state boundary line was at the date of the patent; that, if they could locate it, such line was to govern the other calls, but, if it could not be located, the courses and distances given in the patent were to govern.

9. Ejectment—Pleading—Waiver of Objection.

In ejectment, where the complaint describes the land by reference to a patent, which is introduced in evidence and parol testimony given without objection as to its location and lines, an objection, first made after verdict, that the complaint is indefinite in its terms of description, comes too late.

8. Appeal—Review—Verdict.

Whether a verdict is against the weight of evidence is a question resting in the discretion of the trial judge, and the supreme court will not review his decision.

4. Same—New Trial.

An application for a new trial, based on newly-discovered evidence, is addressed to the discretion of the trial judge, and the supreme court will not review his decision.¹

5. Trial—Instructions—Repetition.

It is not error to refuse a request to charge, where the charge, as given, contains all that the party is entitled to.

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

Civil action to recover land brought by William Redmond and Francis M. Scott against Edward Stepp. Verdict and judgment for plaintiffs, and defendant appealed. The complaint alleged seizin in fee in the plaintiffs and the wrongful possession of the defendant. Each allegation was denied in the answer. Issues as to whether the plaintiffs were the owners, and whether the defendant was in the wrongful possession of the locus in quo, were submitted to the jury, both of which were answered affirmatively. The issues involved only questions of boundary; that is to say, if the plaintiffs have located their grant to Cox in 1796, and the mesne conveyances following, so as to embrace the land in dispute, the plaintiffs would be entitled to a verdict; but, If they fail to so locate it, then the defendant would be entitled to a verdict. The location, therefore, of the southern boundary of the plaintiffs' land is the leading and most material inquiry in the case. The original grant to Tench Cox, in 1796, under which the plaintiffs claim, was introduced by them, the first calls of which are these: "Beginning at a large poplar, marked on the north side ' RH, ' on the west side ' B, ' and on the east side ' R, ' standing on the South Carolina boundary, on a rich level, on the top of a high ridge, near a gap on said ridge, on the east side of said gap, below Williams' mill, and runs north 32 chains, etc.; * * *" and the last calls are as follows: " Then south 106 chains, to a stake, on the South Carolina boundary line, then with said line east to the beginning." Accompanying said grant, and attached to it, was the original map or plat, the first and last lines of which were shown by test, and admitted to form a perfect right angle. The plats made by surveyors under an order of this court were also introduced by the plaintiffs, thus:

The lines, A C, representing a west line from the beginning, with an allowance of 3 3/4 deg. variation, shown to be the true allowance, the same being the true line of the plaintiffs' grant, as claimed by the defendant, and the line, A D, with same variation, form an exact right angle; while the line, A D, and the line, A B, where distance gave out, and which the plaintiffs claim to be the true line of their survey, form an obtuse angle. The defendant claimed under a grant since 1820, including land on both sides of the line, A C, but has had no possession north of that line, all his possession and claim being inside the lines, A B and A C. It was proven and admitted that since the grant to Cox, in 1796, under which the plaintiffs claim, and before the grant to the defendant, the South Carolina boundary line was moved further south, and the locus in quo is now, and was at date of defendant's grant, in North Carolina. The plaintiffs claim that as the distance called for in the grant carries them to B, that their true southern boundary is from B to A. The defendant claims that since the plaintiffs' grant calls for a beginning on the South Carolina boundary, and at the last corner a stake on the South Carolina boundary line, thence with said line east to the beginning, the plaintiffs are restricted to the line, A C, running west from the beginning.

8. V. Pickens and T. F. Davidson, for appellant.

Smith, C. J. The object of this action, begun in March, 1882, is to establish title to and recover possession of a tract of land described in the complaint as "known as patent or grant No. 250, " containing 36, 494 acres, (except certain tracts within the designated boundaries before granted to others,) issued on November 26, 1796, to one Tench Cox. From him, it is not disputed, an unbroken line of conveyances has transmitted title to the plaintiff.

The controversy between the opposing parties is one of boundary, and whether it includes a tract afterwards granted as No. 3, 732, of which the defendant was in the occupation, claiming it as his own. The lines inclosing the large area in the grant to Cox are very numerous, calling at times for material objects, and again pursuing course and distance only, without other guides to their location; yet the beginning point is fixed at a conceded place, described as "beginning at a large poplar, marked on the north side 'R H, ' on the west side 'B, ' and on the east side 'R;' standing on the South Carolina boundary, on a rich level, on the top of a high ridge, near a gap on said ridge, on the east side of said gap, below Williams' Mill, and runs north 32 chains, to Pacolet crossing, " etc. The last call but one is, "thence south, 106 chains, to a stake in the South Carolina boundary line;" and the last, "thence, with said line, east to the beginning." The excepted tracts are numerous, and, in the aggregate, contain about 300 acres. The controversy was about the location of the state boundary, as along it runs the line last called for in the grant to Cox, and it is therein represented as running a due west course from the terminal point next preceding the last, an undefined distance, along the state boundary, to the initial point, or, reversing the course, due east. If, therefore, the initial point is, as seems to be conceded, at the place on the diagram marked "No. 1 Poss, " [A in the above diagram,] the actual line dividing the territory of the two states, if ascertained, as it existed in 1796, when the grant issued, must be followed, and is the southern boundary of the land conveyed, and, if it cannot be ascertained, the line must be run a course east and west; and this is coincident with and determines, in the absence of other evidence showing a different location, the position of the said dividing state boundary. The plaintiffs' contention is that, as the runnings around the tract bring you to the terminus of the dark line at D, [B in the above diagram,] the last line must run thence direct to the beginning, and that this is the South Carolina line. The defendant insists upon stopping the line next to the last at its intersection with the red line, [C in the above diagram,] and thence direct to the beginning. Neither of these run a course directly with the red line, as represented in the survey, north 86 1/2 deg. west, and the black line, in a reversed direction, north 88 1/4 deg. east, so that each diverges from a west course, but the plaintiffs' in a less degree than the other. At the close of the evidence, the defendant submitted a proposed written instruction to be given to the jury, and it was so given, in these words: "(1) In doubtful questions of location as to lines, the intent of...