108 S.E. 755 | N.C. | 1921
Civil action in ejectment. The Locus in quo in a small strip of land 30 feet wide by 161 1/3 feet long, situated on the north side of Williamsboro Street in the city of Oxford. The facts are fully set forth in
From a verdict and judgment in favor of plaintiffs, the defendants appealed.
The case at bar has been tried three times in the Superior Court, and this is the third appeal here. Former opinions reported in
"That if from the calls in the deeds and the map of survey offered in evidence, and the testimony of the surveyor explaining such survey, you are satisfied as to the proper location of the several lines bounding the land in dispute, then it would be your duty to act upon the same and render your verdict accordingly without regard to the *284 oral testimony offered by either side tending to show the proper location of the line or lines."
This instruction was erroneous, because its effect was to (267) give undue credit to the testimony of the surveyor. The plaintiffs were not entitled to have the court single out by name any one witness from among all the others, who had testified to the same matter, and tell them that if they were satisfied from his evidence, taken in connection with the deeds and the map, they should render their verdict accordingly. This was in direct conflict with a number of our decisions. Cogdell v. R. R.,
There are other exceptions appearing on the record worthy of consideration, but we apprehend they will not arise on another hearing.
For the error, as indicated, the cause must be tried again, and it is so ordered.
New trial.
Cited: Taylor v. Meadows,
(268)
