52 N.C. 46 | N.C. | 1859
In order to establish the boundary of a grant under which he claimed, the plaintiff introduced one Morris, who stated that he was the son of Peter Morris, a chain-carrier at the survey of the entry for the grant; that his father, who was dead when the witness testified, had pointed out to him a corner as the third corner, and told him that there were other corners which he (witness) could find in certain directions; that he made search and found marks, which he has since known, and that he pointed them out on the survey of the disputed land. The survey of the land was made partly by the information of Morris, and found to correspond mainly with his statement as to the first line and corner. The defendant's counsel objected to the declarations of Peter Morris, unless he showed the line or corner at the time; but the court admitted the whole statement, and the defendant excepted.
Verdict and judgment for the plaintiff. Appeal by the defendant. Traditionary evidence has long been received by the courts of North Carolina in questions of private boundaries, as well as public. This has been recognized by the judges as a departure from the rules of the common law, but, nevertheless, it has been adhered to without deviation. It is now settled that hearsay from a deceased person is competent in questions of boundary between private estates. The necessity for such a departure from the common-law principle (47) grew out of the inartificial manner in which the lands of the State were originally surveyed and marked, making it necessary, in order to fix the position of the respective parcels, to resort more frequently to tradition, and to give this kind of evidence greater efficiency by enlarging its limits. Whatever may have been the reason, this extended use of hearsay, according to the rule above laid down, is now firmly established.
The precise point, and the only one presented in the bill of exceptions, is whether the declaration of a deceased person is admissible to establish a corner tree, which is not in view at the time of the declaration, *38 but the position of which is described by the declarant, so that it is found by a witness.
We can perceive no reason why such testimony is not admissible. The hearsay becomes definite by the aid of the witness, who, following the directions given, finds the tree, and while it might be considered as of doubtful admissibility, disconnected from the evidence of the living witness, yet, aided by that, it seems to us clearly competent. We do not wish to be understood as laying down a rule that declarations of deceased persons as to corner or line trees not in view would be incompetent. That might depend upon whether their positions were so defined by the declarant as to make it practicable to identify them, or prove their location to the satisfaction of the court and jury. The point before us is whether the hearsay evidence offered, connected with the other testimony giving it definiteness, was properly left to the jury, and that only we undertake to decide.
The force of the proof would, of course, depend upon the identification of the tree found with the tree meant by the deceased, which was properly submitted as a matter of fact, we suppose, to the jury. Assuming it to be the tree meant, it was established to be a corner by proof
equal to the case of the deceased, on the spot, placing his hand upon the tree and making the declaration; and more cogent than the declaration of the deceased showing a spot where (as he said) a corner tree (48) had stood, or showing a stump upon which a marked tree once grew; and yet, these two latter cases, as well as the first, have been sanctioned by judgments of this Court. The case now before us is stronger than the last mentioned, for the reason that when witnesses are equally credible, a fact which is irrefragably inferred from other facts established by separate witnesses is more credible than if one witness had sworn to it. The pertinency and force of these considerations will be seen when we advert to the ground of the objection to the evidence, viz., its want of definitiveness and significance. Mendenhall v.Cassels,
Our conclusion is, it was not error in the judge to allow the entire declarations of the deceased person, connected with the other testimony in the cause, to go to the jury.
PER CURIAM. No error.
Cited: Westfelt v. Adams,
