Marsh v. . Richardson

Avery, J. after stating the facts: The disputed territory is designated on the plot by the letters C B A D C, and the title to it depends upon the questions, whether the second call of the deed from plaintiff to J. A. Marsh, and that from the latter to defendant (the description in both being the same), terminates at C or B, and whether the third call in said deeds terminates at D or A. The material portion of the description in said deed was as follows, viz.: ‘'Beginning at a stake by a post-oak at the end of a lane, C. Rogers’ corner; thence with his line south 75 west one chain and 80 links to a stake by two pines and two post-oaks, a corner of the lands of Susan Marsh” (admitted by the parties to be at a point represented on the plot by F);' “ thence with a line of said lands south 67| west forty chains and 90 links to a slake by a post-oak and two pines” (either at C or A, according as the contention of the plaintiff or defendant might be sustained by the jury); “thence south 1 east thirty chains to a stake by four pines in an old field” (located, as plaintiff contends, at D, or, as defendant contends, at A). The defendant assigned as error in the charge, especially the fact that in lieu of the 3d, 4th and 5th paragraphs of instruction asked, the Court gave those numbered 1 and 2. The abstract rule laid down by the Court in the first paragraph of the instruction given (embodying a part of the syllabus in Baxter v. Wilson, 95 N. C., 137) is not erroneous; but, in so far as the application of it made by the Court to the facts of this case, is susceptible of the construction that even if the jury should reach the conclusion that the true location of the “stake by the post-oak and two pines” was at B, they must be controlled by the survey made in view of the conveyance (if the plaintiff’s' witness was worthy of *547 credit), and find that said corner was at C, we do not concur with the Court below. But as the jury actually found that the corner was at B, it is evident that they were not misled in the only way in which the objectionable instruction was calculated to misguide them, and therefore the defendant cannot ask to have the verdict set aside on account of an error that did not injure him. There was testimony tending to support the contention of both parties by locating the third corner either at C or B, and the fourth corner called for in defendant’s deed, either at A or D. So that the jury were at liberty, in the exercise of their exclusive right, to locate the disputed line from C to D, or from B to A, or to adopt either of the diagonal lines that may be designated on the plot as C A or B D, and they did find that B D was the true southern boundary, thus dividing the land in controversy and making the defendant’s possession as to one-half of it wrongful. The defendant claimed through three mesne conveyances from the plaintiff— 1. A deed from plaintiff to J. A. Dnnn. 2. A deed from Dunn to J. A. Marsh. 3. A deed from J. A. Marsh to the defendant. The plaintiff, as a witness in his own behalf, was allowed to testify that at the time of the sale to Dunn, “ a survey was made, but only one line was ruu, and that line was run from C to D,” and that was marked by him at the time, and he also then put up a pine knot and marked four pines as pointers at D. The defendant objected on the ground that the testimony was rendered incompetent by The Code, § 590, and excepted to the refusal of the Court to sustain said objection. Subsequently, on the cross examination of the same witness, the fact was developed that J. A. Dunn (who had died before the trial) was present at said survey. *548 Said J. A. Marsh was also examined, and his testimony, after similar objection, was substantially ihe same as that of plaintiff, and, in addition, that no line was then run from Bto A. We do not consider that the evidence of either was justly amenable to the objection made, because there was no proof offered of a transaction or communication with J. A. Dunn. March v. Verble, 79 N. C., 19; Isenhour v. Isenhour, 64 N. C., 641. Brower v. Hughes, 64 N. C., 612. The evil intended to be prohibited by section 590, was that of allowing an interested witness to testify as to a transaction or communication between himself and a person who was dead, and whose testimony as to the same transaction had m>t been offered in the shape of a deposition or declarations in relation to the same matter. Neither of the w itnosses, in fact, spoke of a transaction with Dunn, but of an independent fact We must infer from the circumstances that others, perhaps many living persons, were present at the survey besides the two examined, and that the witnesses could have been contradicted if they did not tell the truth. We do not think that defendant’s exception comes within 'he mischief intended to be obviated by the statute. Leggett v. Glover, 71 N. C., 2 1; Peacock v. Stott, 90 N. C., 518. It was conceded on argument that error could not be assigned for failure to charge as requested in paragraph seven of the instruction asked by defendant, which was hand'ed to the Judge after the close of the evidence; but if no such admission had been made, the ruling of the Court, in refusing to entertain the prayer of defendant,'is fully sustained by adjudications of this Court. Powell v. Railroad, 68 N. C., 395; Taylor v. Plummer, 105 N. C., 56. Judgment affirmed.