95 S.E. 662 | N.C. | 1918
The plaintiffs sued for the recovery of a parcel of land in the city of Oxford 30 feet wide by 161
It appears from the record that there was a sharp dispute between the parties as to the beginning corner of the larger lot, of which thelocus in quo is alleged by the defendant to be part. The deed under which the defendants claim describes it as being "at a (374) planted stone on Williamsboro Street about six feet southeast of a large red oak, the southeast corner, thence S. 59 W. 135 feet to a planted stone, thence N. 15 1/2 W. 161
The defendants, in this state of the evidence, proposed to prove that from 1883 until his death in 1911, J. M. Currin, under whom they claimed, and, since that time to the commencement of this action, the defendants used the land in dispute, fenced it, built a stable on it, and cut down, removed and converted to their own use several large oak trees then standing upon it; that this was done near the front door of the Taylor residence, and in full view of the Taylors, and that they made no objection, nor did they protest against the same. This evidence was, at first, admitted, and afterwards, at plaintiffs' request, stricken out, and defendants excepted.
There was a verdict for the plaintiffs and judgment thereon, from which this appeal was taken by the defendants.
after stating the case: We think it was competent for the defendants to show that they held possession of the disputed land for many years, without objection from the Taylors, and, for (375) this purpose, to prove the facts and circumstances in regard to building the fence on the land, erecting a stable thereon, cutting down trees, valuable for shade, firewood, and so forth, and converting the same to their own use. There was fair ground for dispute as to the location of the beginning corner of the lot conveyed by the Taylor-Biggs-Currin deed, and, Where is that corner? is the principal question in the case, and it is not like the one decided in Davidson v.Arledge,
"1. If the words simply designate the lots by number, the boundary, as circumscribed by actual use and occupation, is the one meant by the bargainor. But where they refer to the lots not only by number, but `as known and designated in the plan' of the town, which plan contains a specific description thereof, it is the same as if that description were incorporated in the deed, and the latter must prevail; and it is incompetent to show by parol that the boundaries were intended to be different." Davidson v. Arledge,
"2. Where there is a dispute as to the dividing line between two adjoining tracts, the acts and admissions of the adjoining proprietors recognizing one line as the true one, are evidence of its location when the line is unfixed and uncertain, but where it is well ascertained such acts and admissions are not competent evidence either to change the line or to estop the party from setting up the true line." Davidson v. Arledge,
That is not precisely our case, for there is nothing in the deed of Biggs to Currin, that so certainly designates this lot as to exclude parol evidence, but, in one respect, the cases are alike, for it was the duty of the judge to tell the jury what, in law, are the corners and lines of the deed, and for the jury to decide where they are. He would say to them that the beginning corner of the lot is that described in the deed, viz., "At a planted stone on Williamsboro Street, about six feet southeast from a large red oak," and that wherever they found this corner to be, whether at red A, as designated on the map, or at A, would be, in law, the beginning corner. But this requires the jury to pass upon the important question of fact as to where is this corner, designated as the beginning; and in doing so, they must consider the deeds and any relevant facts or circumstances which will enable them (376) to make discovery of the true corner, after searching for it in the light of the evidence. Where is the point described in the deed as on the street about six feet southeast of the big red oak, was purely a question of fact, and in solving it the jury had the right to inquire whether the stump was that of the red oak mentioned in the deed, and if so, to consider the distance and direction from it to the corner as claimed by the defendants, and also to consider the fact that the deed fixes the corner on the street and not away from the street, and also what was said about the stone and the post, and the fence and *400 trees; the building of the stable, and the fact as testified by the surveyor, that the line as claimed by the plaintiffs would cut off one end of the prize-house to the depth of seven feet and pass through the middle of the front of that house. Why are these not pertinent facts? They could also consider the declaration of any of the plaintiffs as to the true line, which was against his interest. Roe v. Journegan, at this term. This would not be changing a fixed and ascertained line, but merely determining by proof where the line is, if its true location is disputed, as it is here.
We said at the last term, in Wiggins v. Rogers,
It was held in Barfield v. Hill,
(377) The building of a fence and house on the land, and the other acts of which proof was offered, were trespasses and likely to meet with strenuous objection from any one claiming to own the land, but not so if defendants had the right to so use the land.
If it was settled where the lines are, no one of them could be changed by mere parol evidence, and not even by an oral agreement or understanding, but here the location of the line is in doubt, and the object is to find out where the line is, and oral evidence of the acts and conduct of the parties is admissible. Haddock v. Leary, supra. *401
In Hanstein v. Ferrell,
Plaintiff's counsel have called our attention to certain evidence in regard to the width of this lot on the street, and the location of an alley ten feet wide in the rear, and also to their contention that Currin had sold all of his land except the Prize-House lot, as showing conclusively that the lot in question could not be located as contended by the defendants, as it would be much wider than represented on the map (168 feet instead of 135 feet). But these are all matters for the jury to consider. The defendants say that the map shows that if you start at "A prime," which they contend is the true beginning corner and run with the calls of their deed, the lot will be 135 feet wide and embrace the land in dispute.
The defendants state in their brief: "If all the testimony as to the location of the fence and the rock at its end and the 35 years acquiescence by the Taylor family in the cutting of trees, building of stables, fencing the 30 feet of land, was admissible, and the deed, fence, and rock, his Honor left in the record, then the corner on the (378)street 61 feet southeast of the prize-house was 30 feet east of the corner of the lot Taylor conveyed to Biggs and Biggs to Currin." This shows their contention. This is not a conclusive case for the Taylors, as argued for the plaintiffs, but is one for the jury, and the learned judge so regarded it, as will appear from his charge. The evidence leaves the issue as to title and right of possession in grave doubt, and this doubt must be settled by the jury. *402
The defendants excepted to this instruction: "If, however, you shall find by the greater weight of the evidence that this land in controversy is included within the boundaries of the land conveyed to Mrs. Taylor by Mr. Crews, then you should answer the issue `Yes,' and in that event you need not further consider the claim of the other parties plaintiff." His Honor afterwards charged as to the defendants' contention and instructed the jury how to answer the issues if they found that the line is where the defendants contend it is, but the instruction to which this exception was taken and quoted above, considered by itself, and without proper reference to the defendant's contention, and their finding as to it, was calculated to mislead the jury, as it was not then properly qualified, and the other instruction was so widely separated from it. But we do not find it necessary to consider whether we should grant a new trial on this account, as the error already explained is sufficient for that purpose.
We conclude that there was error in rejecting evidence.
New trial.
Cited: Sc.,
(379)