Gibson v. . TerryGibson v. . Terry
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, shаll 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 adversе possession of the entire land for more than twenty years.
There is evidenсe that A. T. Terry removed to the West shortly after death of his father in October, 1893, аnd that Stephen Terry continued to reside on the land and cultivate it, and that his mоther, 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 O. B. Terry:
*535 Q. State whether Mr. A. T. Terry told you, after the death of his father and before he lеft 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 lеaving the statement of the judge to state for what purpose he asked the question. It is incompetent for the purpose of proving a conveyаnce of land as stated by the court. If the purpose of the question was to elicit evidence tending to prove adverse possession defendаnt 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 apрear in the case on appeal what the witness would have testi-fied tо. He might have answered “Yes” or “No.”
In
Knight v. Killbrew,
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 idеntified 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%. Description: Gibson Mills; value, $223. Also shows personal property listed. Duly verified, usual form, before E. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Tеrry.
Tax list of A. T. Terry — Postoffice: D.onville, Miss. Township: Mineral Springs. Address of agent to- whom nоtice may be given: Stephen Terry. Number of acres: 46%. Description: Gibson Mills; value, $223. Duly verified, usual form, before E. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Terry.
' In 1916, 42% acres listеd, 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.
*536 In tbe complaint tbe land is desсribed as 93 acres, and “being tbe same land that was devised to Stephen Terry and A. T. Terry by Champ G. Terry.”
In bis testimony, tbe defendant admitted tbat there was 93 acres in tbe .tract, and testified further: “Yes, it is a fact tbat I gave in only 46% acres for myself and 46% aсres for A. T. Terry. Yes, it is a fact tbat I always gave it in as bis, and also gave it in as mine, and paid tbe taxes and gave it in tbe same on up through tbe year 1917.”
This evidencе, coming from tbe defendant in person and supported by tbe original tax lists signed by him, is nоt only competent, but very powerful if not conclusive evidence tbat tbе possession of defendant bad never become adverse, but tbat it was рermissive and in recognition of bis brother’s title.
Tbe remaining assignments of error are without merit and need not be discussed.
No error.