Gibson v. . Terry

| N.C. | Dec 4, 1918

The only issue submitted or tendered is as follows: Is plaintiff's cause of action barred by the statutes of limitation? Answer: "No." The land described in the complaint was devised by Champ G. Terry to his two sons, A. T. Terry and Stephen Terry. The will contained the "further proviso that my sons, A. T. and Stephen Terry, shall take good care and provision for my beloved wife, Eliza A. Terry, during her natural life."

The defendant pleads that he has been in the actual and adverse possession of the entire land for more than twenty years.

There is evidence that A. T. Terry removed to the West shortly after death of his father in October, 1893, and that Stephen Terry continued to reside on the land and cultivate it, and that his mother, Eliza Terry, resided with him until her death in 1904. A. T. Terry died intestate 16 June, 1917, leaving the plaintiffs and Stephen Terry as his heirs at law.

The defendant asked the following question of witness C. B. Terry:

Q. State whether Mr. A. T. Terry told you, after the death of his father and before he left for the West, what he had done with his interest in this land — whether he told you he had given his interest in this land for Mr. Stephen Terry to take care of his mother?

Objection by plaintiffs; sustained. (The court stating that if the purpose of the question was to prove conveyance of land, the same was incompetent. The defendant stated no other purpose and the objection was sustained.) Defendant excepts.

This exception cannot be sustained. It was defendant's duty after leaving the statement of the judge to state for what purpose he asked the question. It is incompetent for the purpose of proving a conveyance of land as stated by the court. If the purpose of the question was to elicit evidence tending to prove adverse possession defendant should have so explained in response to the court.

There is another reason why the exception cannot be sustained. While the question indicates what the defendant was endeavoring to prove, it does not appear in the case on appeal what the witness would have testified to. He might have answered "Yes" or "No."

In Knight v. Killbrew, 86 N.C. 402, the Court says: "It is a settled rule that error cannot be assigned in the ruling out of evidence unless it is distinctly shown what the evidence was in order that its relevancy may appear, and that a prejudice has arisen from its rejection." This is cited with approval by Justice Allen in Stout v. Turnpike Co., 157 N.C. 367.

It should have been stated in making up the case on appeal what the witness would have testified to if permitted to answer the question.

Plaintiffs offer original return of tax records identified by Stephen Terry in his cross-examination. Objection by defendant; overruled; defendant excepts.

Tax records are as follows:

Tax list of Stephen Terry — Postoffice: Ellerbe, N.C. Township: Mineral Springs. Number of acres: 46 1/2. Description: Gibson Mills; value, $223. Also shows personal property listed. Duly verified, usual form, before R. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Terry.

Tax list of A. T. Terry — Postoffice: Donville, Miss. Township: Mineral Springs. Address of agent to whom notice may be given: Stephen Terry. Number of acres: 46 1/2. Description: Gibson Mills; value, $223. Duly verified, usual form, before R. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Terry.

In 1916, 42 1/2 acres listed, each in name of A. T. Terry and Stephen Terry and signed by Stephen Terry, but address of agent to whom notice may be given left blank.

In the complaint the land is described as 93 acres, and "being the same land that was devised to Stephen Terry and A. T. Terry by Champ G. Terry."

In his testimony, the defendant admitted that there was 93 acres in the tract, and testified further: "Yes, it is a fact that I gave in only 46 1/2 acres for myself and 46 1/2 acres for A. T. Terry. Yes, it is a fact that I always gave it in as his, and also gave it in as mine, and paid the taxes and gave it in the same on up through the year 1917."

This evidence, coming from the defendant in person and supported by the original tax lists signed by him, is not only competent, but very powerful if not conclusive evidence that the possession of defendant had never become adverse, but that it was permissive and in recognition of his brother's title.

The remaining assignments of error are without merit and need not be discussed.

No error.