| N.C. | Dec 5, 1843
At February Term, 1843, of Davidson County Court, Azariah Williams, processioner for the said county, made a report to the said court, setting forth that, being called on to procession the land of John Miller (the present plaintiff), he did, on 2 February, 1843, after it had been certified to him that due notice had been given, commence "on the cast bank of the Yadkin at a hickory stump, then run thence north 85 degrees, east 40 chains 21 links, to a black oak, Bonner's corner; then north 2 1/2 degrees, west 65 chains 85 links to a post oak, and then (24) was about to proceed to run south 88 degrees, west 78 chains to a white oak on the bank of the Yadkin and was forbidden to proceed any further by Henry Heart (the present defendant). Said Heart contends that the land is his; that it runs from the post oak south 87 1/2 degrees, west 15 chains, thence south; consequently the lines remain in dispute."
Upon this return of the processioner, the county court at that term ordered a writ to issue, and the same issued accordingly, directed to the sheriff, which, after reciting that the said processioner "had made a report to the court that he was called on to procession the land of John Miller on 2 February, 1843, and was stopped by Henry Heart when about to run from a post oak south 88, west 78 chains to a white oak on the bank of the Yadkin," commanded the sheriff to summon five persons therein named "as commissioners to attend with the processioner and run and settle said disputed line." At the succeeding term the commissioners made a report to the said court under their signatures and seals in the words following, viz.:
"NORTH CAROLINA — Davidson County — ss.
"In obedience to an order of Davidson County Court made at February Term in 1843, appointing the undersigned (here setting out the names fully), freeholders of the said county, to proceed with the processioner of said county, Azariah Williams, to establish the line of land in dispute between John Miller of the one part and Henry Heart of the other part, do report that we proceeded with Azariah Williams, processioner as aforesaid, who had, when processioning said land, been forbidden by Henry Heart; and on 8 March, in the said year 1843, we commenced at a post oak, where said Williams was stopped by said Henry Heart when processioning said land, running thence south 88 degrees, west 78 chains and 42 links to the Yadkin River bank to a white oak, and we did possession and establish the line in dispute between the said parties as above set forth, and did establish the said line as (25) the said John Miller did contend should be between him and *27 Henry Heart, all the parties being present at the said processioning and establishing said line; and after hearing all the allegations and proofs offered by both parties, we became fully satisfied the line and boundaries of said land were as above set forth, and we established them accordingly, this 8 March, 1843. Given under our hands and seals."
To this report the defendant in the county court filed the following exceptions:
1. No sufficient and legal notice was served upon the defendant previously to proceeding by processioner, when said processioner was stopped and forbidden to proceed by said defendant.
2. The names of the persons making the report are not the same as the names of the persons to whom the commission was directed.
3. Commissioners Clouse and Douthat are relations of the plaintiff, and therefore incapacitated to act as jurors in the case.
4. No notice was given to the defendant that the processioner and commissioners were about to procession the land, or that a commission to that intent had issued.
5. The report is ambiguous and inconsistent, stating at one time that the commissioners had established the line in dispute to be 78 chains and 42 links in length, and again "that they did establish the said line as the said Miller did contend," whereas it appears by the report of the processioner that the line claimed by the said Miller was 78 chains in length.
6. That the commissioners having established neither the line claimed by the plaintiff nor that claimed by the defendant, the court would not know to which party to adjudge costs.
7. That the commissioners, instead of processioning the line as ordered by the court, have, as their report shows, merely possessioned it; and without suggesting any possible meaning of the latter expression, the defendant insists that it cannot by any construction be held to indicate a compliance with their commission.
8. That the entire proceedings on the part of the plaintiff have been illegal, null and void, and that the report of the commissioners is illegal and insufficient both in form and substance. (26)
9. That legal owners of the land in dispute, to wit, the heirs of Robert Williams, had no notice of any part of the proceedings.
10. That the processioner in his report did not set forth the lines in dispute nor the circumstances under which the dispute arose.
These exceptions were all overruled by the county court and the report confirmed. The defendant thereupon appealed to the Superior Court, where, upon argument, the report was ordered to be set aside, and from this order the plaintiff, by permission of the Superior Court, appealed to this Court. *28
This case has been submitted here upon the exceptions taken in the county court, and we have accordingly examined them. Several of these create no difficulty, and may readily be disposed of. Among these are the first and fourth, which except to the said report — the first because it does not appear that previous legal notice was given to Heart to attend at the time when the processioning was first attempted and the processioner forbidden by him to proceed, and the fourth that it does not appear that legal notice was given to him to attend the commissioners when about to procession under the order of court, or that he had knowledge of the issuing of the commission. It is a plain principle of law founded on reason, that when a person entitled to notice of any judicial proceeding actually attends thereat and takes no exception for want of notice, he waives all objection for the want or insufficiency thereof. A voluntary appearance saves the necessity of service of process. Anon.,
The second exception, for that the report is not made by the persons named in the commission, is altogether unfounded in fact. The persons named in the commission and those named in the report are identical, and the only pretext for the exception is that one of them, "Henry Eakley," did not, in attaching his signature to the report, write his Christian name at full length.
The third and ninth exceptions are untenable, for they are not shown to be founded in fact. The third is, for that two of the commissioners were of kin to the plaintiff; and the ninth, for that the legal ownership of the lands in dispute was in the heirs of Robert Williams, and they had no notice of the proceedings. Now of either of these allegations no evidence was offered, nor was either of the exceptions supported by affidavit. But besides the matter of the third exception, which is in the nature of a challenge, ought to have been brought forward when the appointment of commissioners was made; and as to the objection made in the ninth exception, it is enough that before the processioner the defendant claimed the land to be his, and the adjudication of the commissioners affects only the rights of the parties contesting.
The seventh exception is for that the commissioners, instead of reporting that they had processioned the line in dispute, reported that they had *29 possessioned the same. We have no hesitation in overruling this exception. The context put the meaning beyond all doubt. That shows that, in obedience to the order of the court, they proceeded with the processioner to run the line from the post oak "south 88 degrees, west 78 chains and 42 links to the Yadkin River bank to a white oak, and did establish the line in dispute between the said parties as above." This is processioning, and the term to which objection has been taken may be rejected as superfluous.
The remaining exceptions, which need not be separately considered, present the material inquiry, whether the proceedings set forth with sufficient certainty the matter in dispute between the (28) contending parties and the finding of the commissioners thereon, so as to warrant the court in ordering the same to be recorded and adjudging costs against the party failing in the contest. And, first, with respect to the subject in dispute, are the respective claims and allegations of the parties so stated that it may plainly appear upon what matter they are at issue? We are of opinion that although this is not done in the most approved form, it nevertheless appears with reasonable certainty. The processioner reports that he commenced to run the land claimed by the plaintiff at a hickory stump on the east bank of the river, and ran out the first line therefrom north 85 degrees, east (within 5 degrees of a due east course) 40 chains 21 links to a black oak, Bonner's corner; that he then run thence a second line north 2 1/2 degrees, west (that is, very nearly north) 65 chains, 85 links to a post oak; and thus far it appears that there was no dispute. He further states that he was then proceeding to run the third line; that is to say, from the post oak south 88 degrees, west 87 chains to a white oak on the bank of the river; and he must be understood as being about to run this as the line claimed by Miller, and that he was forbidden so to do by the defendant Heart, who "contended" that the land was his; that it runs from the post oak south 87 1/2 degrees, west 15 chains, thence south. Now, upon this, we think it manifestly appears that Miller claimed that the third line of his tract ran from the post oak south 88 degrees, west 78 chains to a white oak on the bank of the river, north of the hickory stump, his beginning corner on the river, and that Heart insisted that it ran south 87 1/2 degrees, west 15 chains only, and thence, without regard to the river, turned off to the south, and that the land between the line as claimed by Miller and the line as he asserted it ought to run was his (Heart's) land. These were then the respective allegations of the parties as to a dividing line between them, and the matter in issue was, Which of these two alleged lines was the true one? The processioner was (29) forbidden to run the line as claimed by the plaintiff because, by so doing, the defendant alleged that the processioner would go upon his *30 land, for that it (meaning the line) ought to run a different course and distance, viz., the course and distance insisted on by the defendant. As technical forms are not required, the report of the processioner we hold to be sufficiently certain. There is less difficulty with respect to the report of the commissioners. The only objection to it, except the hypercritical one before noticed founded on the substitution of the word "possession" for "procession," is that they make the distance on the line from the post oak to the white oak, claimed by the plaintiff, 42 links of a chain greater than the distance which the plaintiff claimed to run in order to reach that white oak. This affects not in the slightest degree the controversy between the parties. The commissioners have established the line as claimed by the plaintiff, for they establish the same termini and the same course to be the termini and course thereof, and whether the distance by actual measurement does or does not exceed that claimed or called for (42 links) is wholly immaterial.
Upon the whole matter, this Court is of opinion that there was error in setting aside the report of the commissioners. The defendant must pay the costs of the appeal.
PER CURIAM. Reversed.
Cited: Porter v. Durham,
(30)