Roane v. McCoy

• Decision Date: 21 December 1921
• Docket Number: 595.
• Citation: 109 S.E. 842,182 N.C. 727
• Parties: ROANE ET AL. v. MCCOY ET AL.
• Court: North Carolina Supreme Court

109 S.E. 842

182 N.C. 727

ROANE ET AL. v. MCCOY ET AL.

No. 595.

Supreme Court of North Carolina

December 21, 1921

Appeal from Superior Court, Macon County; Long, Judge.

Action by C. T. Roane and another against Julius McCoy and another. Judgment for plaintiffs, and defendants appeal. No error.

In an action for trespass on land, an answer of plaintiffs' witness on cross-examination to a question as to whether he knew the location of the grant under which defendants claimed title was properly excluded, where the latter grant had not been offered in evidence.

Plaintiffs claimed title under a grant from the state to themselves, No 16105, dated December 31, 1903, and registered January 27 1904.

The defendants alleged:

That on May 20, 1864, the state issued grant No. 2924 to H. H P. McCoy. That in 1875, or prior thereto, H. H. P. McCoy sold the land described in this grant to D. McDowell McCoy his brother, and executed a deed in fee which had been lost. That H. H. P. McCoy had delivered to D. McDowell McCoy grant No. 2924, after making the following indorsement, which was signed also by his wife:

"I, H. P. McCoy, do assign the within land to D. McDowell McCoy to have and to hold forever. This Jan. 14, 1875."

That D. McDowell McCoy had died intestate without issue, and his real estate had descended to his brothers, who had agreed to a verbal division of the land. That grant No. 2924 had been allotted to J. J. W. McCoy, and that he had entered into possession. That thereafter, on or about April 3, 1895, deeds had been mutually executed by J. J. W. McCoy and W. L. McCoy, by which J. J. W. McCoy had conveyed all his interest in the estate of D. McDowell McCoy east of a certain described line and W. L. McCoy had conveyed to J. J. W. McCoy all the land described in grant No. 2924, which lies to the west of the line referred to. That J. J. W. McCoy had conveyed this land to the defendant M. M. McCoy, and that said McCoy has been in the adverse possession under color of title more than 21 years.

The heirs at law of H. H. P. McCoy had previously been allowed to interplead and file a complaint alleging that they were the owners of the land in grant No. 2924.

There seems to have been no serious controversy as to the location of grant No. 16,105; but the interpleaders and the defendants, claiming respectively to be the owners of the land in grant No. 2924, contended that the junior grant lapped upon or was embraced in the senior grant. The controversy turned upon the location of grant No. 2924; for if this grant and grant No. 16105 did not interfere, there was no ground for denying that the plaintiffs were the owners of the land described in their grant. The interpleaders alleged that neither the plaintiffs nor defendants had title, and alleged that the interpleaders were the sole owners.

The issues and the answers were as follows:

"(1) Are the plaintiffs, Siler and Roane, the owners of the lands described in the complaint, and within the red lines on the map, designated by the red letters and lines from red A to B, C, D, E, F, G, and back to red A? Answer: Yes.

(2) Have the defendants Mrs. M. M. McCoy and Julius McCoy unlawfully trespassed upon the lands referred to in the first issue, as alleged in the complaint? Answer: Yes.

(3) If the defendants have so wrongfully trespassed, what damages, if any, are the plaintiffs entitled to recover of the defendants Mrs. M. M. McCoy and Julius McCoy? Answer: $10.

(4) Is the defendant Mrs. M. M. McCoy the owner of the lands embraced under state grant 2924? Answer: ______.

(5) Does state grant No. 2924, under which Mrs. M. M. McCoy and the heirs at law of H. H. P. McCoy claim, include any portion of the lands included in grant 16105; and, if so, what portion thereof, as represented on the map? Answer: ______.

(6) Are the defendants, the heirs at law of H. H. P. McCoy, the owners of the lands embraced under state grant No. 2924, as alleged by them in their interplea? Answer: ______.

(7) What damages, if any, is Mrs. M. M. McCoy entitled to recover of the plaintiffs? Answer: ______."

Judgment was entered for the plaintiffs, and the defendants appealed.

Henry G. Robertson, of Franklin, for appellants.

T. J. Johnston and R. D. Sisk, both of Franklin, for appellees.

ADAMS J.

The first five exceptions must be overruled. John H. Dalton, a witness for the plaintiff, testified that he had surveyed all the lines of the grant under which the plaintiffs claimed title, except the last three; that he had prepared the plat that the last three...