23 S.E. 362 | N.C. | 1895
This grant commences at an island in the Yadkin River; thence west; thence south to a beech tree on Moravian Creek, near the mouth of a branch; thence east, and thence to the beginning.
The land in dispute lies on the east line, running from (444) Moravian Creek. There was a survey ordered; but the surveyor commenced at the island, and ran by the reversed calls in the grant, and by this survey located this line according to plaintiff's contention.
But defendants contended that the survey should have been made from the beech on Moravian Creek east, and offered evidence tending to show, if run in this way, the line would be where defendants contended, and defendants would not be in possession of plaintiff's land; and asked the court so to charge — that is, that the survey on this line should have been made east, and not west.
This the court declined, and defendants accepted.
This east and west line being a very long one, the survey lacked more than a mile of going to Moravian Creek.
There was a verdict for plaintiff, and from the judgment thereon defendants appealed.
The court refused the request of defendants' counsel, made in apt time, to instruct the jury in effect that in fixing the location of the lower line of Moravian Grant the proper and lawful method of conducting the survey was to run with the calls of the deed from an admitted corner, or from one which the jury believed was located by the testimony, instead of reversing the calls from such points. A corner admitted, or ascertained by the usual marks, or established by the testimony to the satisfaction of the jury, is to be considered by them (as was said by Pearson, J., in Safret v.Hartman,
We have rarely, if ever, had occasion to review a more confused statement of a case on appeal, but construing all parts of it together we *305 think the defendants Denny and Cowles are entitled to the benefit of this assignment of error. The appeal as to the other defendant was dismissed for failure to print the record.
The defendants Denny and Cowles are entitled to a new trial upon this ground. But we deem it proper, as a guide to the court below, to add that if it be true, as we understand the statement of the evidence and the exceptions, that the court below allowed the plaintiff, in the face of objection, to use the simple denial of the defendants in their answers that they were wrongfully and unlawfully in possession as evidence that the defendants were exercising such dominion over a virgin forest as to subject themselves to a possessory action (Hamilton v. Icard,
The appeal of defendant Hall is dismissed. A new trial is awarded to the defendants Denny and Cowels.
Cited: Stack v. Pepper,