100 S.E. 313 | N.C. | 1919
This action was brought to recover the land described in the complaint. Defendant denied plaintiff's title and alleged ownership in himself. There was a controversy as to the location of lines and boundaries, which presented the question in dispute as to the true ownership.
Verdict and judgment for defendant, and plaintiff appealed. The record in this case has been amended under a writ of certiorari. As the record was originally, it appeared that the court had ruled out certain testimony of a witness, Noah Moore, to the effect that Roebuck had bought wood which had been cut from the land. This was competent and if no amendment had been made there would have been error. But the amendment has removed it from the case.
First. There was general objection to evidence which was, at least, competent as corroborative, and plaintiff did not ask that the evidence, be restricted to that purpose. The objection fails. Rule of this Court No. 27;Dunn v. Lumber Co.,
Second. It was competent for defendant to state that his deed covered the land in dispute and that he was let into possession of the same. Why not? He was stating facts within his knowledge.
Third. The question as to the Crandall corner and the answer thereto were properly admitted, in the absence of proper objection. The question was, in form, competent, and the answer that Perkins showed the corner to the witness was corroborative of Perkins, who had before been examined as a witness about it. Under a general objection it was competent. Rule 27 and cases supra. His Honor, too, again repeated the warning as to statements of living or interested declarants.
Fourth. It was competent for the witness, when asked about the corner at the pine, to state that he knew where (203) the stump was, and, besides, it appears to have been harmless and not prejudicial (Buckner v. R. R.,
Fifth, Plaintiff complains that the court did not sufficiently caution witnesses and the jury as to declarations of living or interested witnesses, but we think that he did do so, and in language that could not be misunderstood.
Sixth. As to the charge, we do not think that plaintiff's criticism of it is warranted. The court placed the burden, at the outset, distinctly upon the plaintiff. He stated that the latter must recover, if at all, upon the strength of his own title and not upon the weakness of the defendant's and that no burden rests upon the latter. It is all upon the plaintiff. He could not have been more explicit or correct on this part of the case. The defendant was not required, by the law, to introduce any evidence. He might rely on that of the plaintiff and on his ability to show that plaintiff's contentions on his own showing was erroneous, and that he had not located his land or proved his right to recover. The court was arraying the contentions of the parties and its meaning was that if plaintiff had offered evidence which satisfied them by its preponderance that his claim was correct, he (204) was entitled to their verdict, and that if the defendant had not introduced evidence tending to show, and sufficient to show, that plaintiff was mistaken in his contention he would be taking a chance to lose the verdict. He was balancing the contentions of the parties as against each other. The language, if prejudicial to either side, was more against the defendant than against the plaintiff, for there was no burden on the former at all. It was the duty of plaintiff to make out his case and not to rely on the inability of the defendant to sustain his contention or to show any title.
Speaking of the burden of proof in ejectment, the Court says in Moore v.McClain,
It may be further stated that as there are some parts of the charge to which this exception is taken which are clearly correct, and as plaintiff has not singled out the erroneous part, his exception must fail. Nance v. Telegraph Co.,
The thirteenth assignment of error, the last one being merely formal, is subject to the same objection. The particular error is not pointed out and excepted to, there being several different propositions in the instructions, some of which are plainly correct. Nance v. Telegraph Co.,supra.
But when the entire charge is considered, especially the statement of defendant's contention, it is apparent that the court did not mean that it required more than seven years adverse possession to ripen the title but seven years or more would be sufficient, and the jury so understood it. He indicated seven years as the minimum period, and the expression was doubtless used because the evidence showed, such a possession for more than seven years, and the judge had stated the plaintiff's contention to be that he had occupied the land adversely for more than seven years, or "for seven years and upward," without any correction from the plaintiff. The court sufficiently instructed the jury that they should decide with the plaintiff, if they found that he had been in adverse possession, as had been contended by him.
There was no substantial error in the rulings or charge of the court, if error at all, and even if there was slight error, it is not of sufficient importance to warrant a reversal (Griffin v. R. R.,
The case has been correctly tried, as we think, without prejudice to any just right of the plaintiff.
No error.
Cited: Fox v. Texas Co.,
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