McNeely v. . Laxton

Walker, J., after stating the ease: The plaintiffs, for the purpose of establishing the boundaries of the land claimed by them, introduced as a witness J. T. Perkins, who testified *333 that there is a forked branch on the land of H. C. Taté (under whom plaintiffs claim), and that he had heard the upper prong called “Shingle Branch.” The defendants objected to this testimony but it was admitted. One of the calls in the grant to Anthony and in the deed of Margaret Erwin to H. 0. Tate was for Shingle Branch. What the witness said was some evidence of the true name of the branch. In Willis v. Quinby, 31 N. H., 485, similar testimony was held to be admissible, the Court saying: “The only knowledge men generally have of .the names of others, is derived from, the fact that they hear them so-called. To have heard a man so-called on one occasion, may not be strong evidence, but it seems to us competent.” The Court, in U. S. v. Dodge, 1 Deady, 186 (25 Fed. Cases, p. 879), held evidence that a house had been called by a certain name to be competent. So in State v. McAndrews, 15 R. I., 30, it was said, that “witnesses to prove a name seldom know more than that the person, whose name is in question, answers to the name', or that others call him by it or speak of him as having it.” To the same effect is Horry v. Glover, 10 S. C., Eq. (2 Hill), 393. The Court in that case says the effect of the testimony does not depend on the credit of the person who made the statement as to the name, but upon the credit of the witness who was examined; then the inference is drawn from that fact, that it cannot be conceived why the (slave) should have been called by the name, if it was not in fact his true name. It cannot be considered, says the Court, as hearsay. The other objections to the oral evidence were not well taken, and they require no special discussion. The defendants introduced* the record of a proceeding brought by Mrs. Susan F. Michaux against H. C. Tate and others under sec. 56 of the Code (Eevisal, sec. 328), to set up and-establish certain deeds and conveyances to her father John Jerkins, which had been destroyed by fire, the registry thereof having also been destroyed by fire when the court *334 house was’ burned.. The defendants insisted that the (‘fleet of this proceeding, in which a judgment in her favor was ent< red, was to estop the plaintiffs 'from denying the location of the boundaries as ascertained and declared' by the Court therein. It appears from the record of the' proceeding that it was brought by Mrs. Michaux under ch. 8 of the Code concc-ming “Burnt and Lost Records.” We are unable to concur in that view. The statute expressly declares (seel 56) that the proceeding shall have, “as to the persons notified, the effect of a deed for the (land) executed by the person possessed of the same, next before' the petitioner.” It was necessary to have the land surveyed to -ascertain the bound1 arios as described in the lost instrument, and'the judgment in the proceeding can have only the force and effect of the original conveyance if the latter had not been destroyed, but had itself been in evidence. Waters v. Crabtree, 105 N. C. 402. This is the legal effect of the proceeding by the very terms of the statute. The boundaries were not established under the Processioning Act. Parker v. Taylor, 133 N. C., 103, cited by the defendants’ counsel has, therefore, no application to this case. The exclusion of the evidence of Charles Laxton as to the burning of Mrs. Michaux’s papers, if erroneous, was harmless, as the defendants established the fact afterwards by introducing the record of the proceedings between Mrs'. Michaux, as plaintiff, and H. C. Tate and others, as defendants. : The Court properly instructed^the jury that in determining the length of the line in the calls of the grant, as the length was not stated in the grant but was given in the annexed plat, they might, consider the distance as specified in the plat in locating that line. Cooper v. White, 46 N. C., 389; Redmond v. Mullenax, 113 N. C., 505; Higdon v. Rice, 119 N. C., 623. The defendants’ third prayer for instructions', that if the *335 plaintiffs bad failed to satisfy tbe jury as to tbe location of tbe lines of other tracts called for in. tbe Anthony grant, they should answer the first issue, “No,” was properly refused. Tbe true rule is stated in Moore v. McClain, 141 N. C., 479, citing Redmond v. Stepp, 100 N. C., 212, as follows: “If-only course and distance are given and the beginning is found, the land will be run by course and distance. But when in addition to course and distance, natural objects, marked trees or lines of other tracts are called for, these when shown, will control course and distance and must be reached by a further extension or shortening of the line, so as to reach such objects, trees or adjoining tracts. If none such can be found, then the. course and distance must be the guide in fixing the boundary. This is Ihe correct view and has, in actions of ejectment and trespass, been so recognized. It would impose upon those claiming, as in this case, under old grants, a heavy burden-to require them to find or make search for natural objects or very old lines, before they could make at least a prima facie location of such grants.” See also Harry v. Graham, 18 N. C., 76, where the rule is also clearly stated by Chief Justice Ruffin. The defendant contended that there was no evidence to show that the land granted to Anthony was any part of that described in the complaint. But we think there was some evidence of that fact.' The correspondence between the boundaries as set forth in the compaint and those of the Anthony grant, and the testimony of B. J. ITallyburton, was some evidence that at least a part of the land described in the Anthony grant was included within the boundaries stated in the complaint. The witness Hallyburton testified: “If the jury find 3 to be the N. W. -corner of the Anthony grant, and run thence to 18, the Anthony grant would not cover any of the land in dispute, but if it is located, as claimed by the plaintiff, it would include fifty-six acres in dispute.” The contentions of the parties as to the true location of the *336 Anthony grant were clearly stated in the charge to the jury, and the law arising upon the evidence was correctly applied. The instructions, to which the defendants were entitled, were substantially given by the Court. After a careful consideration of the defendants’ exceptions and of the numerous questions presented by them, we have been unable to discover any error in the rulings and charge of the Court. No error. '