Bunch v. . Bridgers

Smith, C. J. We think the testimony was competent, as explaining the act of expulsion done under a claim of ownership, and in the exercise of an assumed right over the territory. It was part of the res gestee, and while not receivable to show title by a declaration, should have been received as- *60 qualifying and giving character to the act, as an assertion of a right claimed to the possession. The objection is not met by the proposal to allow proof of what the woman said to him, while what he said to her was excluded. The conversation, so far as it is pertinent to the matter in dispute, was all of it receivable or none, for without the whole its true import and meaning might be entirely misunderstood and be misleading. Overman v. Clemmons, 2 D. & B., 185; Green v. Cawthorne, 4 Dev., 409. As the error entitles the defendants to a new trial, it is unnecessary to consider the subject matter of the instructions as asked and given. If the plaintiffs’ land is located as they contend and the defendants deed does not profess to encroach upon it, but is arrested when it meets the plaintiffs’ boundary, the defendants possession has not the support of color of title, and must continue for such a length of time, and be of such a nature as itself to divest the plaintiffs’ title and transfer it to them or one or more of them. In this view the directions given to the jury seem reasonable and fair though their correctness is not intended to be adjudicated in our present disposition of the appeal. There is error and the verdict must be set aside and a venire de novo awarded. Error.