Bowen v. . Lumber Co. , 162 N.C. 516 ( 1913 )

The Court has carefuly [carefully] examined the record, and finds no exception to the proceedings which gives the defendant any just ground of complaint. The title to the land was shown to be out of the State, under a patent to Joseph Dwight, dated in 1758. SeeBowen v. Lumber Co., 153 N.C. 366. Plaintiff then exhibited a line of deeds, beginning in 1786 to 1892, three to his own family and himself, bearing date respectively in 1821, 1847, 1892, and offered evidence tending to show that these deeds, more especially those (518) of 1821, 1847, 1892, covered the land in controversy, and that within the boundaries on the highland the plaintiff and those under whom he claimed had lived continuously, to plaintiff's personal knowledge, for 44 years, 60 acres being under fence and cultivated, with house, barn, stables, etc., and that they exercised such dominion and control over the swamp land within the boundary as the same permitted, and that this occupation and control were continuous and exclusive. Under a correct charge, the jury have accepted this as the true version of the facts, and the question of title, therefore, has been properly determined in plaintiff's favor. The only objection seriously urged for error before us was that the court refused to strike out a portion of plaintiff's testimony relevant to the issue. The land having been surveyed and plats made and exhibited on the trial, the plaintiff, testifying in his own behalf, said, among other things, that the deeds of 1821, 1847, and 1892 covered the land in controversy, and proceeded to state more in detail as to certain lines and corners of the land, and more particularly as to the placing of the point of contact with the Ross patent, one of the termini called for in the deeds; the objection urged being that the testimony referred in part to deeds which were older than the witness, and that he testified only from what his deceased father had told him about the boundary. under the decisions and on the facts presented, this source of information may have been entirely legitimate, for it was based, in part, on a declaration of the deceased father, before any controversy and as to the boundary of the Ross patent, a tract adjoining his own, and thus may have been entirely competent under the principle illustrated and applied in Halstead v.Mullen, 93 N.C. 252; Mason v. McCormack, 85 N.C. 226, and other like cases. If, however, the contrary be conceded, the objection is not open to defendant, on the record, for the witness stated that in saying the deeds in question covered the land, he spoke from information received from his father and others, and he also said he had seen the land surveyed and knew of himself of the position of certain lines and corners marked and recognized as part of the boundary. The (519) statement of the witness, therefore, did not rest alone on information derived from his deceased father, and the court made a correct ruling in refusing to strike out the testimony. Those who owned the land at the time of the trespass committed and all who have any interest in the recovery are parties of record, and the objection for defect of parties is without merit. Daniels v. R. R., 158 N.C. 418. The evidence offered tending to show adverse occupation of thelocus in quo on the part of the defendant or its grantors under the deed from Anne Blount, administratrix, was properly submitted to the jury, and rejected. The issue between the parties dependent, chiefly, on questions of fact, has been submitted to the jury under a correct and proper charge, and, as stated, we find no reason for disturbing the conclusion they have reached. There is

No error.