122 S.E. 478 | N.C. | 1924
It is not necessary to consider all the exceptions on which the defendants rely for the reason that some of those embraced in the third assignment of error are sufficient ground for a new trial.
The plaintiff instituted the action to recover damages for an alleged trespass on his land. Both title and location were in issue. For the purpose of showing that the beginning corner was at A the surveyor, after objection, was permitted to testify what a colored man named Owen Hayes had told him about this corner. The plaintiff also testified that the corner had been shown him by Hayes, who then owned the adjoining land. He said, "I have been with Owen Hayes to the corner at A on the Simpson map three times, two before the suit and one since. . . . He told me that was the corner between him and Murphy and Mattie Mott (under whom the plaintiff claims), or the Timothy Gurganous tract of land, just a corner in his line, and showed me from A to B and from A to I. It adjoins his land from A to I, or he said it did. He did not take me to I, but did later before the survey." The witness testified further that he had since learned that there was a dispute between the parties — each side claiming the land — at the time these statements were made, and that Hayes died some time after the action was brought. There was other evidence tending to show that the dispute existed even at an earlier date.
This evidence was inadvertently admitted. There is a distinction between hearsay evidence and evidence by reputation. The latter is competent as to ancient boundaries; the former — declarations of deceased *654
persons — is competent as to boundaries of more recent origin; but as to both kinds of evidence certain rules have been established. In Yow v.Hamilton,
The testimony as to what Owen Hayes said does not meet these requirements. It does not appear that his declarations were made ante litemmotam that is, before the controversy arose and not merely before the suit was brought (Rollins v. Wicker,
New trial.
