Univ. of N.C. v. Harrison

• Decision Date: 28 February 1884
• Citation: 90 N.C. 385
• Court: North Carolina Supreme Court
• Parties: UNIVERSITY OF NORTH CAROLINA v. J. W. HARRISON and others.

90 N.C. 385

UNIVERSITY OF NORTH CAROLINA

v.J. W. HARRISON and others.

Supreme Court of North Carolina.

February Term, 1884.

EJECTMENT tried at Spring Term, 1883, of WAKE Superior Court, before Philips, J.

Judgment for plaintiff, appeal by defendants.

Messrs. W. S. Mason, T. P. Devereux and D. G. Fowle, for plaintiff .

Messrs. J. H. Flemming, Battle & Mordecai and Pace & Holding, for defendants .

SMITH, C. J.

The land described in the complaint and sought to be recovered was granted by the state in August, 1779, to Godfrey Hartsfield, who, four years thereafter, conveyed the same to Micajah Mickelroy, under whom the plaintiff claims by the law of escheat??

To show the death and intestacy of the last owner, without heirs, one Henry Jett, examined as a witness for the plaintiff, and who had attained the age of ninety-three years, testified that he was raised by William Polk, whose residence was in the city of Raleigh, and while in his service had seen Micajah Mickelroy, then a grown man and thirty-five or forty years old, at his master's house, and that he moved away, since which witness had never heard from him, nor had he heard that Mickelroy ever married or had children or brothers. Another witness introduced in support of the plaintiff's title, one Burke McDade, who stated he was twenty-three years old, and had resided all his life within a mile of the land and six miles from Raleigh, testified that he had heard of Mickelroy; did not know where he lived; never heard of his having heirs, nor of his setting up any claim to the land; that one Dick Smith (for whom witness was overseer for about eleven years) for fifteen or twenty years had cut timber on the land, sold some of it, and that a few acres had been cleared, by whom he did not know, when he first became acquainted with the land.

This was all the evidence adduced to show the death of Mickelroy and that he left no heirs to succeed to the inheritance, beyond the fact that none had appeared to claim it.

The defendants asked the court to charge the jury “that there was no evidence that Micajah Mickelroy died without heirs,” which was refused, and, instead, these instructions were given:

1. If Mickelroy has been absent and not heard from since the witness, now ninety-three years old, was a young man, or for more than seven years, he is presumed to be dead.

2. The burden is on the plaintiff to show that Mickelroy was the owner of the identical land in controversy, and that he died without issue or collateral heirs capable of inheriting.

3. If he is dead and the jury believe that no heirs or representatives have appeared to claim the land during this long period of time, this is presumptive evidence sufficiently strong upon which to infer the fact that there are no heirs.

The last charge, numbered 3, is not specifically made the subject of exception, but as it is given as a substitute for, and in response to an instruction asked and refused, it must be considered in association and as embodying a proposition the correctness of which is open to examination on the appeal. The responsive instruction might not be obnoxious to criticism, if intended only to leave the evidence to the jury, to be weighed by them in passing upon the enquiry whether the ancestor and last owner had died without any heirs to whom the inheritance could descend, and in determining its sufficiency to warrant the inference that there were none such; but it was accompanied with the declaration that the preceding facts stated raised presumptive evidence strong enough for the jury so to find the fact, thus devolving upon the defendants the burden of disproof, with this presumption in the scale against them to be met and overcome. Thus understood, the direction was erroneous, and, even if susceptible of another meaning, calculated to mislead the jury in arriving at their verdict.

The death of a person who has removed his domicil, or has been absent from his home for seven or more years, is inferred, where he has not meanwhile been heard from by those who would be expected to hear from him, if living. The mere absence of evidence or report of his being alive is not alone sufficient to raise the presumption, but the absence of such information or report must appear by enquiring of relations, and if there are none, of those among whom he formerly resided, who would be most likely to hear from him if he were not dead. Banning v. Griffin, note a, 15 East, 293.

In France v. Andrews, 15 Adolph. & Ellis, 756, a witness thirty-eight years of age stated that he “had never known of the existence of his cousin, and was not aware of having any other relations now alive,” and PATTERSON, J., said: “The mere lapse of time does not raise a presumption of death, unless you go further and show that the person has been absent and not heard of by those who would have heard from him if he had returned.” In the same case COLERIDGE., J, expressed his...