83 S.E. 248 | N.C. | 1914
The appellees moved to dismiss the appeal for that the alleged errors are not properly assigned. Upon examination we find that but a few of the assignments of error are in accordance with the requirements. For instance, assignment 2 is that the court "erred in admitting the question of F. R. Brink in regard to his claim to possession." This gives us no information and leaves the Court to hunt through the record. It is no cure to this defect that we are referred to the page where we might find the evidence referred to. The same is true as to assignments of error 1, 3, 4, 5, 7, 8, 9, as to evidence which is not set out in the assignments.
Assignment of error 13 is: "The court erred in giving the jury the charge which is excepted to as defendant's 19th exception, on page 34, as there shown in the bracket." This simply refers us to the record, when counsel should have selected the paragraph of the change objected to and set it out in his "assignment of errors." The same is true of assignments 14, 15, 16, 17, and 18. *170
These matters have been so often called to the attention of counsel that it is strange indeed that the rules as to presenting error on appeal should be thus disregarded in any case. As late as Wheeler v. Cole,
As we have had occasion to say at this term of the Court, in Land Co. v.McKay, the rules of this Court are not considered sacred nor the best of all possible rules, and when we discover defects in them they are changed from time to time to take effect prospectively. But as long as they remain unaltered they are, in our judgment, required in the interest of the administration of justice, and must be enforced — reasonably, of course, and in accordance with their intent, but impartially as to all.
The only assignments that are properly made are those numbered 6, 10, 11, 12, and 15, and as announced from the Bench in passing upon the Motion of the appellee to affirm the judgment, we shall consider only the assignments that are properly made. Assignment of error 19 is merely formal for error in refusing to grant a new trial and in rendering the judgment. We have, however, looked through these defective assignments, and find nothing which could have changed the result, if such assignments had been properly made. *171
This action is for the recovery of land described in the complaint. Both parties claim under Fred Lovin. The plaintiffs claim under a mortgage made by Lovin to Satchwell on 27 October, 1855, and under a deed made under foreclosure at Fall Term, 1859, and then under mesne conveyances to the plaintiffs. The suit in foreclosure was instituted after the death of Lovin, the mortgagor, by his three daughters by his wife, Dorcas Brewer, to whom the plaintiffs allege and the jury find that the said Lovin was legally married.
About one year prior to the commencement of this action the defendant Jane Reaves and her husband built a shanty on the land in controversy and began to cut timber, whereupon the plaintiffs resorted (134) to this action. She contends that she is the daughter of Fred Lovin and Mag. Pridgen, his second wife, and that she is the only lawful heir; that she married before she was 21, and that she was not made a party to the suit to foreclose.
It is not denied that Jane Reaves is the child of Fred Lovin by Margaret Pridgen, to whom he was formally married in 1845; but the plaintiffs contend that said marriage, though performed in a legal manner, was bigamous and void, because there was a prior subsisting marriage between Fred Lovin and Dorcas Brewer. The plaintiffs did not produce direct evidence of Lovin's marriage to Dorcas Brewer, but there was abundant evidence of the reputation of such marriage in the family and in the neighborhood and of cohabitation in Pitt County, where they lived, and that they separated and that Fred Lovin went to New Hanover, where subsequently, in 1845, as the defendants proved, he was married by the forms of law to Margaret Pridgen. There was no evidence of divorce, however. Fred Lovin died about 1856. Jane Reaves was born in 1853 and was married in 1869, at the age of 16, to her codefendant, Calvin Reaves. Fred Lovin lived on the land at his death. The plaintiffs also relied on adverse possession of those under whom they claimed.
Of the exceptions properly assigned as error, No. 6 is for alleged error in permitting the witness Christine Manning to state that she had heard "Dorcas Brewer say that Fred Lovin was her husband." No. 10 is for permitting the witness J. J. Stokes to state that he heard Dorcas Brewer make the same statement. No. 12 is for the refusal to strike out the above evidence, under Rev., 1631. This evidence was competent for the witnesses in corroboration of their testimony of reputation and cohabitation and in mentioning those whom they had heard say that Lovin was married to Dorcas. 4 Chamberlain Ev., sec. 2932. Section 1631 does not apply, for Dorcas Brewer died in 1878, and the plaintiffs are not claiming under her, nor was she, of course, a witness in the cause.
Assignment 11, for refusal to nonsuit, cannot require discussion. Assignment 15, for "failure to instruct the jury in reference to the *172 presumptions of law as to the validity of the marriage between Fred Lovin and Margaret Pridgen," cannot be sustained. If the defendants desired fuller instructions, they should have so prayed the court.
It is hardly necessary to consider the defense of adverse possession under color. This action was brought 16 September, 1907, and the statute removing the disability of coverture and providing that coverture should not be a protection against the running of the statute of limitations took effect 13 February, 1899. Rev., 363. The evidence is (135) that the defendants entered upon the land "about one year" before this action was begun, which was, therefore, more than seven years of adverse possession after the passage of the statute.
No error.
Cited: Rogers v. Jones,
