Clark v. . Cagle

DeviN, J. The defendants assign as error the ruling of the trial judge in approving and confirming the denial by the referee of their motion for judgment of nonsuit. It was contended that plaintiffs had not offered sufficient evidence to locate the 30-acre tract of land on which it was alleged the defendants had trespassed. The action, which had been originally instituted to restrain timber cutting on plaintiffs’ land, had resulted in a consent judgment establishing the plaintiffs’ title, as heirs of H. P. Poole, to the three tracts of land described in the judgment from which the 30-acre tract had been cut off and allotted to the feme plaintiff in the partition of the lands of H. P. Poole, thus leaving open only the question of determining the location of the 30-acre tract. The question of title was thus adjudicated. Only the question of locating the boundaries remained. The referee to whom the matter was referred found and reported what he concluded were the true boundary lines and determined the location of the land described. The trial judge has approved and confirmed. It is the established rule that findings of fact by a referee approved by the trial judge cannot be reviewed on appeal if supported by any competent evidence. Anderson v. McRae, 211 N. C., 197, 189 S. E., 639; Dent v. Mica Co., 212 N. C., 241, 193 S. E., 165; Holder v. Mortgage Co., 214 N. C., 128, 198 S. E., 589. The defendants’ appeal presents the question whether there was any competent evidence to support the referee’s findings as to the location of the boundary lines of the described 30-acre tract of land. We note that the defendants admit the title to the 7%-acre tract and do not controvert its location. It would seem from the description of the *235 lands in tbe partition proceeding and in tbe judgment heretofore rendered tbat tbe 30-acre tract was cut off from tbe larger 60-acre tract, and tbat some of tbe lines of tbe 30-acre tract coincide witb those of tbe 7%-acre tract and are so connected therewith as to indicate that the 7%-acre tract was included in and constituted tbe southern end of tbe 30-acre tract. From tbe testimony of a witness who said be bad known these lands for many years, it appears tbat the boundary lines of the 30-acre tract are visible and well defined; tbat the northern boundary is the Morganton Road; that the eastern and southern boundaries were denoted by fences erected by H. P. Poole; tbat tbe western boundary was a well marked line; tbat tbe witness bad seen tbe line at tbe time of tbe partition (to which he was a party) when tbe 30-acre tract was cut off and allotted to tbe plaintiff. Tbe presence of a stump and stone at tbe northeast corner of tbe land was in evidence. We observe also tbat in the partition of tbe lands of H. P. Poole in 1927 tbe 30-acre tract allotted to tbe plaintiff is described as beginning at a poplar and stone pile on tbe Morganton Road, and running thence westwardly along tbe old Morganton Road by various courses 56 poles, thence southwardly 73 poles to a stone; thence eastwardly 26 poles to a corner in tbe line of tbe 7%-acre tract; thence witb its line southwest 19 poles to its corner; thence eastwardly witb its line 41% poles to its other corner; thence witb and beyond its other line north about 17% degrees east 104 poles to tbe beginning. It is apparent from these descriptions tbat within tbe boundary lines of tbe 30-aere tract and at its southern end is located the 7%-acre tract. A portion of tbe west line of tbe 30-acre tract coincides witb tbe west line of tbe 7%-acre tract; tbe south line of tbe 30-acre tract is tbe south line of tbe 7%-acre tract; and tbe east line of tbe 30-acre tract follows tbe east line of tbe 7%-acre tract as far as tbe latter extends, and then continues by tbe same course to tbe beginning on tbe old Morganton Road. "While tbe western boundaries of tbe larger 60-acre tract were not definitely pointed out by tbe testimony, it does appear tbat tbe northern boundary is tbe old Morganton Road, and tbat tbe eastern boundary, extending southward from a point on this road, was denoted by a fence— originally a rail fence and later a wire fence erected by H. P. Poole — ■ on tbe line now indicated on tbe map by tbe letters F to G; and tbat likewise tbe southern boundary was evidenced by a wire fence and trees on the line now indicated on tbe map as G to M. From this tbe reasonable inference is deducible, as testified by tbe witness McIntyre tbat tbe 30-acre tract is tbe “east boundary of tbe old tract of land tbe 60-acre tract.” Thus tbe testimony tends to locate tbe lines of tbe eastern por *236 tion of the 60-acre tract which was cut off into the 30-acre tract so as to include the locus in quo. Again, the description of the 60-acre tract in the deed to H. P. Poole, designates the north line as extending eastward along the Morganton Road 95 (poles) to Angus Martin’s line; thence his line south ten degrees west 100 poles, with the next line running westwardly. "While no evidence was offered as to the location of Angus Martin’s line, this description indicates that Angus Martin’s land lay to the east, and that the line running south from the Morganton Road was both the eastern boundary of the 60-acre tract and the dividing line between the lands of H. P. Poole and Angus Martin; and it was along this line (now indicated on the map by the letters F to G) that H. P. Poole erected a wire fence to replace a previously existing rail fence. We think the plaintiffs have offered some competent evidence to determine the boundaries and locate the plaintiffs’ land as found by the referee and approved by the judge. Hence the motion for judgment of nonsuit was properly denied. At the time of the taking of the testimony before the referee, the defendants noted exceptions to the ruling of the referee in the admission of certain testimony, but in their exceptions to the report of the referee none of these were brought forward, so they could be ruled upon by the judge, except that relating to the admission of the record of the special proceeding for partition. Pack v. Katzin, 215 N. C., 233, 1 S. E. (2d), 566; Anderson v. McRae, 211 N. C., 197, 189 S. E., 639. The exception brought forward was properly overruled, for the reason that the title of the plaintiffs, as heirs of H. P. Poole, to the three tracts of land having been admitted, it was competent to offer the record of this proceeding to show that the 30-acre tract was carved out of these lands and allotted to the plaintiffs. Furthermore, this exception seems to have been abandoned as it was not referred to in brief or argument (Rule 28). Defendants bring forward in their assignments of error exception to the action of the trial judge in attempting at a subsequent term of the Superior Court of Montgomery County to set aside the judgment previously rendered by him, and to substitute therefor another judgment, because of some inadvertence in the first. As the record shows final judgment in the cause was signed 3 October, and at the same time entries of appeal to this Court were noted, the judge was without power at a subsequent term (29 October), and within the time allowed for service of ease on appeal, to set aside the judgment and substitute another, unless by consent. Likas v. Lackey, 186 N. C., 398, 119 S. E., 763; Lawrence v. Lawrence, ante, 221. Notice of the judge’s intention to set aside the first judgment and substitute another was given informally shortly before the subsequent term began, but defendants did not *237 appear or consent, and excepted to tbe action of tbe judge. Tbougb it appears that tbe only change in tbe judgment was in tbe matter of certain allowances and not as to tbe merits, tbe exception now presented on this appeal must be sustained. Tbe substituted judgment will be stricken out, and tbe original judgment affirmed. Allowances constituting items of costs may be adjusted as provided by G. S., 6-7. Modified and affirmed.