79 S.E. 286 | N.C. | 1913
From a judgment of nonsuit, upon the first cause of action stated in complaint, plaintiff appeals.
Plaintiff also moves in the Supreme Court for a new trial upon the second cause of action, upon the ground of newly discovered evidence.
The facts are stated in the opinion of the court. The facts pertinent to the first cause of action are these: Plaintiff conveyed to L. L. Taylor, the intestate, by deed dated 20 June, 1899, all the pine and oak timber of certain dimensions on a tract of land, to be cut and removed within seven years. The deed was duly recorded 22 July, 1899. The said Taylor then gave to the plaintiff the following paper:
I, L. L. Taylor, do hereby give H.T. Warwick permission to cut the scattering pine timber on the hill on 2 1/2 acres of his land lying on the southeast corner of his house where he has been cutting cordwood, near a pond or drain in said woods.
L. L. TAYLOR.
Witness: J. L. HARRIS.
This was recorded 4 April, 1913.
On 7 November, 1901, L. L. Taylor conveyed all said standing (70) timber to the Camp Manufacturing Company by deed recorded 7 January, 1902.
Under the deed from plaintiff to Taylor, the time within which the timber must be cut and removed expired 20 June, 1906, but on 9 July, 1902, the plaintiff executed a deed to the Camp Manufacturing Company, confirming the original conveyance, and conferring upon said company the right to cut and remove all the timber until 20 June, 1908. This deed was recorded 19 July, 1902.
During the extended period of two years, between 20 June, 1906, and 20 June, 1908, the Camp Company cut and removed all the said timber, including "the scattering pine timber on the hill on 2 1/2 acres" described in the paper-writing given by Taylor to Warwick, supra, numbering some nineteen sticks.
Upon these facts, the motion to nonsuit was properly sustained.
The evidence shows that all the timber was cut and removed by the Camp Manufacturing Company after the time limit in the deed from plaintiff to Taylor and Taylor to Camp had expired. None of it was cut by the defendant's intestate, Taylor. *57
The authority of Camp to cut the timber was plaintiff's deed to Camp, dated 9 July, 1902, extending the time authorizing the cutting for two years. Had plaintiff not executed this instrument, all the timber, including the "scattering pine timber on the hill," would have reverted to him.
It is difficult to conceive upon this state of facts why plaintiff should recover against Taylor.
There is no assignment of error by plaintiff as to anything that occurred at the trial of his second cause of action, and he relies solely upon his motion for a new trial for alleged newly discovered testimony as to said second cause of action, which said motion is made for the first time in this Court.
Motions for new trial founded upon alleged newly discovered evidence are carefully scrutinized, and we are not disposed to grant them except for substantial cause in cases that come strictly within the established rules of law applicable to them. Simmons v. Mann,
This Court will not grant a new trial for newly discovered evidence for light causes and considerations. It will do so only (71) in cases where it is very probable that substantial injustice has been done by reason of the unavoidable failure to produce the evidence on the trial, and when also it is probable that upon a new trial a different result will be reached and the right will prevail. Evidence merely cumulative is generally considered as insufficient. Simmons v. Mann,supra.
We have examined carefully the affidavits in support of the motion, and the same is denied. The judgment of the Superior Court is
Affirmed.
Cited: Steeley v. Lumber Co.,