64 S.E. 212 | N.C. | 1909
This action was brought to recover two contiguous tracts of land, containing about one hundred and sixty-eight acres. Title was admitted to be out of the State, and the plaintiffs own the land, unless the defendants have acquired title thereto by adverse possession. The plaintiffs alleged that the defendants' possession was (437) not adverse, but they held the same by permission of the plaintiffs. In order to show that the defendants were merely tenants of the plaintiffs, the latter introduced as a witness Scott Smoke, who testified as to a conversation between him and Emily Bean, one of the defendants, while she was living on the land, concerning a letter to the plaintiffs. The court excluded the testimony, so far as it related to the contents of the letter, but admitted it as tending to prove a declaration by Emily Bean in acknowledgment of the plaintiffs' title and in disparagement of her own. For this purpose it was clearly competent, and the testimony was properly restricted to that purpose. Yates v. Yates,
The testimony of A. D. Hamilton, which was objected to by the defendants, was substantially to the same effect as that of Scott Smoke except that it related to a declaration of Richard Bean in disparagement of his title, and tended to show that Bean was in possession, not claiming in his own right, but in subordination to the plaintiffs' title. This kind of evidence has always been held to be competent, as will appear by reference to Shaffer v. Gaynor, supra, and the cases therein cited.
The testimony of the witness Scott Smoke was competent against Emily Bean, and if the defendants intended to raise the question that it was not so against the other defendants they should have requested the judge to restrict it, but no such ground of objection is stated in the case. See Rule 27 (
It was competent for Mr. Bradshaw to testify that he was the agent of Francis A. C. Hill and others, and as such had charge of the land, paid the taxes and collected the rents. This is not a case of proving an agency by the declaration of the alleged agent, but by the testimony of the agent, under oath.
We do not see any error in the refusal of the court to give the instruction requested by the defendants. The judge correctly charged the jury as to what would constitute such adverse possession of the land by the defendants as to defeat the plaintiffs' recovery. He told (438) the jury that if Thayer's acts in cutting the timber were committed without the knowledge or acquiescence of the defendants they would not affect their claim or impair their rights, but it would be otherwise if he were recognized by the defendants as acting for and in behalf *360 of the plaintiffs. This instruction was as favorable to the defendants as they had any reason to expect.
The jury found, in response to the issues, that the plaintiffs are the owners of the land in controversy, and awarded damages. Upon this verdict judgment was entered for the plaintiffs, and defendants appealed. We find no error, after a most careful examination, in the rulings or judgment of the court.
No error.
Cited: Tise v. Thomasville,
