Thompson v. Buchanan

• Decision Date: 12 February 1930
• Docket Number: 553.
• Citation: 151 S.E. 861,198 N.C. 278
• Parties: THOMPSON et al. v. BUCHANAN et al.
• Court: North Carolina Supreme Court

151 S.E. 861

198 N.C. 278

THOMPSON et al. v. BUCHANAN et al.

No. 553.

Supreme Court of North Carolina

February 12, 1930

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

Action by Ella C. Thompson and another against Stokes Buchanan and others. From an adverse judgment, plaintiffs appeal. No error.

Former owner's declarations held competent against him and those claiming under him in determining location of beginning corner on land.

A full statement of the facts is contained in the former appeal in this case, reported in 195 N.C. 155, 141 S.E. 580. In the present trial the main controversy revolves about the question of the location of the beginning corner of the land in dispute, the plaintiffs contending that the beginning corner as shown on the map was "walnut A." The defendants, upon the other hand, contended that the beginning point was "walnut at point 1" on the map.

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Two issues were submitted to the jury, as follows:

(1) "Are the plaintiffs the owners of the land shown on the court map by the figures 1, 2, 3, 4, 5, 6, and back to 1?"

(2) "Are the plaintiffs the owners of the lands shown on the court map by the letters A, B, C, D, E, F, and back to A, or any part thereof, except as stated in the first issue?"

The first issue was answered "Yes" by consent, and the jury answered the second issue "No." From judment upon the verdict, plaintiffs appealed.

W. B Councill, of Hickory, for appellants.

S. J Black, of Bakersville, W. C. Newland, of Lenoir, and S. J Ervin and S. J. Ervin, Jr., both of Morganton, for appellees.

BROGDEN J.

(1) Are declarations of a deceased owner of land as to the beginning corner, made during the period of his ownership, competent against those claiming under him?

(2) Are the declarations of such deceased owner, made after he had parted with his title, competent against those who claim under him?

It appears from the evidence that Pat Abernethy owned an interest in the land or a mineral interest in it up to September 7, 1909, and that on that day he conveyed his interest to one of the plaintiffs. It does not appear when Abernethy acquired the interest. The defendants offered testimony to the effect that surveys of the land had been made in 1922 and in 1924, and that Abernethy, now deceased, was present at the time of these surveys, and that he pointed out the corners of the Irby lease and stated that such corner was "a walnut standing on the bank of the road." The defendants further offered the declaration of Abernethy at the time of such survey, with respect to the walnut as follows: "He said it looked natural; that it was standing right where it always was."

Another witness for defendants testified with reference to the walnut as follows: "Yes; Mr. Pat Abernethy pointed it out to me at one time. I believe it was in the year 1918. I was out there. I got him to go with me the year after my wife's father died, as well as I recollect. It was up to me to kinder look after the property, and I got him to go with me and point out the boundary lines of that Hawk mining tract, and we went up the ridge to a hole in the ground. I asked him to go in front and point out to me where the corner was. *** He went and looked around a little, and finally located that hole in the ground, Figure 2, and told me that was the corner between the Heap and Clapp contention and the Burleson contention. He pointed out the oak that was marked there, he said, in 1885, when they had a survey, after they got up a dispute between the parties mining under Heap and Clapp and the parties mining under Burleson as to the location of the underground workings, and that he went after a surveyor, and it was one of the coldest days he ever saw in his life, and they got up there and surveyed to that point, and then had an underground survey to determine where the workings were, and that they marked that tree that was there as a more permanent mark, and that he took a memorandum of those marks, and the distance from the chestnut stump and the shaft that was there, and that he had it at home in his safe, and that he would send it to me, but he never did." The witness was asked if he and Abernethy went down to the walnut tree claimed by the defendants as a beginning point of the Burleson lease and the Bowman deed. The witness answered: "Yes; we went on up there, and he looked around a little on the ground, and said that corner was standing there then, above the road; the beginning corner, 1, as laid down on the map was the corner."

The plaintiffs objected to all the foregoing evidence. The objection was overruled, and the plaintiffs excepted.

It appeared that Abernethy had conveyed his interest in the land to one of the plaintiffs in 1909, and that some of these declarations having been made in 1918, in 1922, and in 1924 were made after Abernethy had parted with his interest in the land. The general rule is stated in ...