Singleton v. Roebuck

• Decision Date: 01 October 1919
• Docket Number: 178.
• Citation: 100 S.E. 313,178 N.C. 201
• Parties: SINGLETON v. ROEBUCK.
• Court: North Carolina Supreme Court

100 S.E. 313

178 N.C. 201

SINGLETON v. ROEBUCK.

No. 178.

Supreme Court of North Carolina

October 1, 1919

Appeal from Superior Court, Pitt County; Guion, Judge.

Action by R. P. Singleton against W. B. Roebuck. From a judgment for defendant, plaintiff appeals. No error.

This action was brought to recover the land described in the complaint. Defendant denied plaintiff's title and alleged ownership in himself. There was a controversy as to the location of lines and boundaries, which presented the question in dispute as to the true ownership. Verdict and judgment for defendant, and plaintiff appealed.

In an action to recover land, it was competent for defendant to state that his deed covered the land in dispute, and that he was let into possession of the same, for he was stating facts within his knowledge.

Albion Dunn and S. J. Everett, both of Greenville, for appellant.

Julius Brown, F. C. Harding, and D. M. Clark, all of Greenville, for appellee.

WALKER J.

The record in this case has been amended under a writ of certiorari. As the record was originally, it appeared that the court had ruled out certain testimony of a witness, Noah Moore, to the effect that Roebuck had bought wood which had been cut from the land. This was competent, and if no amendment had been made, there would have been error. But the amendment has removed it from the case.

First. There was general objection to evidence, which was, at least competent as corroborative, and plaintiff did not ask that the evidence be restricted to that purpose. The objection fails. Rule of this Court, No. 27 (81 S.E. xi) Dunn v Lumber Co., 172 N.C. 129, 90 S.E. 18; Ricks v Woodard, 159 N.C. 647, 75 S.E. 735. This applies to testimony of Mr. Roebuck as to declarations of Mr. Gray and Mr. Perkins. Besides, the court warned witnesses not to speak of anything said by persons who are living or who were interested, at the time, in the controversy. We must assume that the witnesses understood the caution and observed it.

Second. It was competent for defendant to state that his deed covered the land in dispute and that he was let into possession of the same. Why not? He was stating facts within his knowledge.

Third. The question as to the Crandall corner, and the answer thereto, were properly admitted, in the absence of proper objection. The question was, in form, competent, and the answer that Perkins showed the corner to the witness was corroborative of Perkins, who had before been examined as a witness, about it. Under a general objection, it was competent. Rule 27, and cases supra. His honor, too, again repeated the warning as to statements of living of interested declarants.

Fourth. It was competent for the witness, when asked about the corner at the pine, to state that he knew where the stump was, and, besides, it appears to have been harmless and not prejudicial. Buckner v. Railroad Co., 164 N.C. 201, 80 S.E. 225, and is not of sufficient importance, if erroneous, to cause a reversal. There are several of the many exceptions to evidence which are covered by the court's caution and instruction to the witnesses not to state anything told to them by living or interested persons. We will not consider them seriatim. It is sufficient to say that the judge required the witnesses to comply with the rule, as to declarations concerning boundaries, established by this court, and thus stated:

"It is the law in this state that under certain restrictions both hearsay evidence and common reputation are admissible on questions of private boundary. Sasser v. Herring, 14 N.C. 340; Shaffer v. Gaynor, 117 N.C. 15 ; Yow v. Hamilton, 136 N.C. 357 . The restrictions on hearsay evidence of this character--declarations of an individual as to the location of certain lines and corners--established by repeated decisions, are: That the declarations be made ante litem motam; that the declarant be dead when they are offered; and that he was disinterested when they were made. Bethea v. Byrd, 95 N.C. 309 ; Caldwell v. Neely, 81 N.C. 114." Hemphill v. Hemphill, 138 N.C. 504. 51 S.E. 42.

Most, if not nearly all, of the objections may be thus fully met, without further discussion. The surveyor's testimony, as to the Jesse Griffin land division, if erroneously admitted, was harmless. It was immaterial, having no connection with the controversy, and the same may be said of the testimony of J. J. Gray. He might show where his corner was, if he knew its location. If material, it was competent, and if immaterial, as claimed, it worked no harm, and certainly no substantial harm.

Fifth. Plaintiff complains that the court did not sufficiently caution witnesses and the jury as to declarations of living or interested witnesses; but we think that he did do so, and in language that could not be misunderstood.

Sixth. As to the charge, we do not think that plaintiff's criticism of it is warranted. The court placed the burden, at the outset, distinctly upon the plaintiff. He stated that the latter must recover, if at all, upon the strength of his own title, and not upon the weakness of the defendant's, and that no burden rests upon the latter. It is all upon the plaintiff. He could not have been more explicit, or correct, on this part of the case. The defendant was not required, by the law, to introduce any evidence. He might rely on that of the plaintiff, and on his ability to show that plaintiff's contention on his own showing was erroneous, and that he had not located his land, or proved his right to recover. The court was arraying the contentions of the parties, and its meaning was that, if plaintiff had offered evidence which satisfied them by its preponderance that his claim was correct, he was entitled to their verdict, and that if the defendant had not introduced evidence tending to show, and sufficient to show, that plaintiff was mistaken in his contention, he would be taking a chance to lose the verdict. He was balancing the contentions of the parties as against each other. The language, if prejudicial to either side, was more against the defendant than against the plaintiff, for there was no burden on the former at all. It was the duty of plaintiff to make out his case, and not rely on the inability of the defendant to sustain his contention, or to show any title.

Speaking of the burden of proof in ejectment, the...