Martin v. . Vinson

Allen, J. The exceptions to the exclusion of certain parts of the depositions offered by the appellants are not discussed in the brief, and *133 are therefore deemed abandoned. This leaves two questions for decision under the peremptory instruction of his Honor: (1) Did the appellants offer evidence tending to prove that they are the heirs at law of Josiah Bridger and of Carter Bridger? (2) Is there evidence that the land described in the devise in the will of E. D. Bridger is the' same land that was devised by Josiah Bridger to his son Carter? If there was evidence of these two facts, then there was error in the instruction of his Honor directing the jury to answer the issue “No”; and if there is a failure of proof as to both, the appellants have shown no interest in the land in controversy. Upon the first question, the depositions offered in evidence by the appellants furnished evidence of the relationship, and if accepted by the jury, would justify a finding that the appellants are heirs. We do not think, however, that there is any evidence identifying the land in the will of E. D. Bridger as the same land devised by Josiah Bridger to his son Carter, father of E. D. Bridger. The appellants rely upon the expression in the will of E. D. Bridger, “and came by my father.” If the expression had been “came by my father by inheritance,” or “came by my father, being the land devised to_ him by Josiah Bridger,” there might have been evidence of identification; but the fact that he received the land from his father in the absence of other proof, and taken in connection with the fact that E. D. Bridger does not undertake to devise his interest in the land, but the land itself, furnishes no evidence upon the disputed question. In other words, if the appellants are heirs, and it is the same land and Carter Bridger died intestate without having executed a conveyance for the land, then they would be entitled to one-third of the land, and E. D. Bridger would have been the owner of a one-third interest. On the other hand, if the land is the same, and Carter Bridger executed a conveyance to E. D. Bridger, he would have been entitled to the whole; and when E. D. Bridger devises the land and not his interest therein, it is equivalent to a declaration on his part that he owns the entire land, and not an interest therein; and when he describes it “as the land that came by my father,” it means, in the absence of explanation, that he was entitled to the whole of the land from his father. Again, the land devised in the sixth item of the will of E. D. Bridger may have passed to the testator from his father, Carter Bridger, without being the same land devised by Josiah Bridger to Carter. It may have been acquired by Carter by purchase or by inheritance from some other person, and not under the devise of Josiah. We are more inclined to adopt this conclusion, rather than permit land titles to rest upon mere *134 speculation, as the records were open to appellants and they could have easily shown how R. D. Bridger acquired title. ' As said in Byrd v. Express Co., 139 N. C., 273, and approved in Finch v. Michael, 167 N. C., 325, “There must be legal evidence of the fact in issue, and not merely such as raises a suspicion or conjecture in regard to it. The plaintiff must do more than show the possible liability of the defendant for the injury.” We therefore conclude there was no error in the instruction given to the jury. No error.