Poole v. . Gentry

EtíviN, J. Exceptions 19 and 20 challenge the validity of the findings of fact and conclusions of law of the trial judge and the judgment entered thereon upon the ground that the findings of fact were “based upon incompetent evidence and contrary to the weight of all the evidence.” These exceptions are unavailing. The parties waived trial by jury to the issues of fact in compliance with the provisions of the perti *269 nent statute. G. S.. 1-184. This being the ease, the findings of fact of the trial judge are as conclusive as the verdict of a jury if there was evidence to support them. Eley v. R. R., 165 N. C., 78, 80 S. E., 1064. The record contains abundant testimony to justify the findings of fact in question, and the facts found are sufficient to sustain the judgment entered. Fish v. Hanson, 223 N. C., 143, 25 S. E. (2d), 461. Even if there were a foundation for the reason assigned for it, the objection that the findings of fact were “based upon incompetent evidence” comes too late. The plaintiffs permitted practically all of the evidence of the defendants to be introduced without objection. Webb v. Rosemond, 172 N. C., 848, 90 S. E., 306; 53 Am. Jur., Trial, section 135. Moreover, the record discloses indisputably that the testimony of the defendants supporting the findings of fact of the trial judge was competent. It came from witnesses who assisted in partitioning the lands of Gilliard Tweed among his devisees in 1929. and from surveyors who subsequently surveyed Tracts Nos. 3 and 4 on the basis of information derived from such witnesses and the muniments of title of the parties. Southern v. Freeman, 211 N. C., 121, 189 S. E., 190; Roane v. McCoy, 182 N. C., 727, 109 S. E., 842; Beeton v. Goodman, 181 N. C., 475, 105 S. E., 875. Exceptions 1 and 11 are addressed to rulings of the trial court sustaining objections to questions propounded to witnesses by the plaintiffs. These exceptions will not be considered here because the record does not show what evidence the witnesses would have given if they had been permitted to answer the questions. Francis v. Francis, 223 N. C., 401, 26 S. E. (2d), 907. Exceptions 3, 4, and 15 relate to the rejection of the testimony of the plaintiff, Sarilda Poole, concerning extra-judicial declarations of her husband, O. W. Poole, and of A. J. Franklin, the deceased husband of the defendants’ predecessor in title, Ella Franklin. These exceptions are immaterial for the reason that the court subsequently corrected and revised these rulings and permitted this witness to testify to these matters. Metcalf v. Ratcliff, 216 N. C., 216, 4 S. E. (2d), 515. Exceptions 5, 6 and 7 are clearly untenable. The defendants’ witness, E. L. Cutshall, was present at the survey in 1929 when the land of Gilliard Tweed was partitioned among his devisees by the commissioners in the special proceeding, and saw the commissioners mark the hemlock, white oak, and red oak trees called for in their report and in the deeds of the parties as corners of Tracts Nos. 3 and 4. Hence, he was competent to testify as to these matters and as to the location of these natural monuments. Likewise, the court rightly allowed this witness to state that he was present at a survey made by the defendants’ surveyor, Robert Reagan, a short time before the trial, and saw Reagan run a line from *270 the red oak corner to the spot where the hemlock tree stood at the time of the partition in 1929. 11 C. J. S., Boundaries, section 114. Exceptions 8, 9 and 10 must be overruled. The evidence of the surveyor Reagan that at the time of his survey of the premises E. L. Cut-sliall and Sylvester Johnson pointed out to him the white oak corner called for in the report of the commissioners and in the defendants’ chain of title was plainly admissible. Both Outshall and Johnson were present at the original survey in 1929 when the white oak was marked as a corner, and testified as to its location at the trial. Indeed, Johnson was one of the commissioners in the partition proceeding. Bert on v. Goodman, supra. The hemlock called for as a corner of Tracts Nos. 3 and 4 disappeared before the Reagan survey. Consequently, it was competent for Reagan to testify that he undertook to establish the location of this lost corner by extending the line from the white oak and by reversing the line from the red oak until they met, and that these lines intersected within one foot of the spot which the witness Cutshall had pointed out to him as the place where the hemlock had stood. In so doing, Reagan followed an approved method for relocating lost corners. 11 C. J. S., Boundaries, section 13; 8 Am. Jur., Boundaries, section 69. See, also, Cowles v. Reavis, 109 N. C., 417, 13 S. E., 930. Exceptions 12, 14, and 18 relate to the reception and use of the map of Tracts Nos. 3 and 4 designated as defendants’ Exhibit No. 1. This map was prepared by the surveyor Reagan, .and both he and the defendants’ witness, George Sprinkle, who had made an independent survey of these lands, vouched for its accuracy. Consequently, the court properly admitted the map to enable Reagan and Sprinkle to explain their testimony with respect to their surveys of the premises in question. McKay v. Bullard, 219 N. C., 589, 14 S. E. (2d), 657; 32 C. J. S., Evidence, section 730. We have carefully considered Exceptions 2, 13, 16, and 17, and have concluded that none of them are of sufficient merit to justify a new trial. As no harmful error has been made to appear, the judgment of the court below is Affirmed.