Morse v. Freeman

157 N.C. 385 | N.C. | 1911

AlleN, J.

The motion to nonsuit was properly overruled. As both parties claimed title under a common source, the decision of the controversy between the parties depended upon two facts:

1. Did the deed of the defendant cover the land ?

2. If so, had the plaintiff held the land adversely for seven years under his deed?

If the deed of the defendant did not cover the land, the plaintiff was the owner, because both claimed under Freeman, and it was admitted that the land was included in the deed of the plaintiff. If the deed of the defendant did include the dispute, the plaintiff was the owner if he had held possession adversely for seven years under his deed.

Evidence was offered to sustain both contentions of the plaintiff, and, therefore, a judgment of nonsuit could not have been entered.

During the trial the surveyor was allowed to post up in sight of the court and jury a map made on a large scale, purporting to be a copy of tbe court map, and tbe witness was allowed to refer to said map as a matter of demonstration, after tbe surveyor bad stated tbat it was a facsimile or reproduction on a large scale of tbe court map. Tbe use of tbis map by tbe witness and by tbe attorneys in tbe examination of tbe witness was objected to by defendant’s counsel.

It does not appear tbat any exception was entered by tbe defendant to tbe use of tbe map, but if it bad been done, we tbink no error was committed. An unofficial map^ may be used by a witness to illustrate bis testimony, and it can make no difference tbat it is posted on a wall, but in tbis instance tbe map was simply an enlargement of tbe one made under order of tbe court, and there is no suggestion tbat it was not correct.

Tbe defendant also excepts to tbe following parts of tbe charge, which, in our opinion, are well supported by tbe authorities :

1. But if you find from tbe greater weight of tbe evidence tbat there are no natural boundaries, or, in other words, cliffs, or no such cliffs in no such place as are called for, and you, calling to your aid all tbe evidence in tbe case, are unable to locate tbe objects; and you find further tbat tbe last call in tbe deed is a straight line from tbe stake at figure 5 on tbe map to tbe beginning, you will answer tbe first issue “Yes,” since where tbe natural objects or boundaries have not been fixed and ascertained, then course and distance must govern tbe jury in fixing tbe line; therefore, if you locate tbe line by course and distance, you will find for tbe plaintiff. •

2. Tbat if tbe jury should find for defendant on tbe location of bis deed, still if tbe jury shall find from tbe evidence tbat tbe plaintiffs have, claiming under their deed, been in tbe possession of tbe lap, or interference, or any part thereof, continuously, adversely, notoriously, and conclusively for seven years before tbe suit was brought, 30 December, 1909, no other person being seated on tbe lap, tbis would ripen tbe plaintiff’s title, and be should recover.

There is one other assignment of error, but it is not based on any exception appearing in tbe record, and therefore cannot be considered. Thompson v. R. R., 147 N. C., 412.

Tbe assignments of error are for tbe purpose of grouping exceptions already taken, and not to introduce new exceptions.

Upon an examination of tbe whole record, we find

No error.