{
  "id": 8650831,
  "name": "G. H. MITCHELL v. T. W. HOGGARD",
  "name_abbreviation": "Mitchell v. Hoggard",
  "decision_date": "1891-02",
  "docket_number": "",
  "first_page": "353",
  "last_page": "357",
  "citations": [
    {
      "type": "official",
      "cite": "108 N.C. 353"
    }
  ],
  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
  "cites_to": [],
  "analysis": {
    "cardinality": 369,
    "char_count": 8063,
    "ocr_confidence": 0.503,
    "pagerank": {
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    "simhash": "1:1e836992a94ec6fd",
    "word_count": 1416
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  "last_updated": "2023-07-14T14:38:29.877932+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "G. H. MITCHELL v. T. W. HOGGARD."
    ],
    "opinions": [
      {
        "text": "MebjriMON, C. J.\nafter stating the case: The case settled on appeal is not affall free from confusion. It seems that the plaintiff contended, on the trial, that he and defendant were tenants in common of the land in controversy, and the Court so held; but, it held further in this connection that there was no evidence of ouster of the plaintiff or demand on his part that he be let into possession But such questions were certainly not raised by the pleadings in any view of them.\nThe complaint plainly alleges that the plaintiff is the owner of the land therein specified; that the defendant is wrongfulh in possession thereof and unlawfully withholds the same, etc. This the defendant denies, and as to the possession, a proper issue raised was submitted to the jury. The parties both claim under the devise above recited. It seems that the Court was of opinion that this devise made the parties tenants in common, and hence the opinion expressed \u2014 that they were. We think such opinion was not well founded, and therefore the plaintiff was not entitled to any benefit from it in any aspect of the case. The devise \u2019 must be construed as a whole, and the intention of the testator must prevail. The first part of the devising clause simply declares the testator\u2019s purpose to devise the tract to the devisees named, but in that immediate connection he qualifies, explains and makes his purpose specific by designating and specifying a \u201cdividing line,\u201d cutting the tract into two distinct parts, and devising to his daughter named the part described, situate on one side of that line, and to the plaintiff the other part, sufficiently designated, situate immediately on the opposite side of that line. The clear purpose was to divide the tract into two parts, and devise one part to the plaintiff in severalty and the other part to the other devisee in severalty.\nIt seems that the real dispute on the trial was as to the true location of the \u201cdividing line.\u201d It is stated in the case settled on appeal that \u201cone of the main points in the controversy was the location of the beginning point on the road for dividing the land \u2014 that is, the 'watering hole\u2019 \u2014 each party claiming different location.\u201d So far as we can see, the parties were not tenants in common, and no question in that respect could arise. The plaintiff contended that the \u201c watering hole \u201d was at one point, the defendant that it was at a different point on the road mentioned, and the true location of the \u201cdividing line\u201d depended upon whether the contention of the plaintiff or that of the defendant was well founded. The cause of action and the pleadings might appropriately and pertinently raise such contentions. It sufficiently appears that such was the real ground of the controversy, and the Court instructed the jury that \u201cit was for them to sa}r, from the evidence, what point was intended by the testator,\u201d etc. There was no exception to this instruction. The evidence produced on the trial was sent up. It tended very strongly to prove that the \u201cwatering hole\u201d was at the point contended for by the defendant and the jury so found. Upon the verdict the Court properly gave judgment for the defendant.\nIt is true, as we have seen, that the Court erroneously said on the trial that the parties were tenants in common of the land, but the opinion thus expressed was immaterial .and not at all pertinent. It did not in its nature mislead or distract the minds of the jury as to the issue submitted to them. It had no application. It is not suggested nor does it appear that it did. It was harmless, and therefore not ground for a new trial.\nThe judgment must therefore be affirmed.\nAffirmed.",
        "type": "majority",
        "author": "MebjriMON, C. J."
      }
    ],
    "attorneys": [
      "Mr. P. B. Peebles, for plaintiff.",
      "Mr. D. G. Winston, for defendant."
    ],
    "corrections": "",
    "head_matter": "G. H. MITCHELL v. T. W. HOGGARD.\nDevise \u2014 Tenants in Common \u2014 Action to Recover Land\u2014 Trial \u2014 Judge\u2019s Charge.\n1. A devise to *' my daughter E. and my grandson G. one tract of land adjoining lands of H. and M., lying on the south side of the road leading from M. to W., to be divided between the two as follows, * * * so that my daughter E. shall have adjoining the lands of B. and G., tl e land' adjoining the lands of H. and others, to them and their heirs forever,\u201d did not create an estate in common in the entire tract, but an estate in severalty in the devisees respectively to the parcels as established by the dividing line.\n2. An erroneous instruction to the jury upon an immaterial aspect of the case, which does not appear to have misled the minds of the jury from the real issue, is not sufficient ground for a new trial.\nCivil action, tried at February Term, 1891, of Bertie Superior Court, Graves, T, presiding.\nIt appears that George Wynns died many years ago in the-county of Bertie, leaving a will, which was duly proven,, wherein he devised part of his real estate as follows:\n\u201c I give to my daughter, Elizabeth Burden, and my grandson, George IT. Mitchell, one tract or parcel of land adjoining the lands of Elisha IToggard and Giles Mitchell, lying on the south side of the road leading from Giles Mitchell\u2019s to Windsor, to be divided between the two as follows: The dividing line to begin near the place called the Watering Hole on the road, thence running .'-traight to the back line, so that my daughter Elizabeth shall have adjoining the lands of Abram Burden, her husband, and Giles Mitchell and George Ii. Mitchell, to the parcel adjoining Elisha Hoggard and others, to them and their heirs forever.\u201d And there is no other part of the will relating to the same or affecting it.\nThe plaintiff is the male devisee mentioned in this clause of the will, and the defendant claims the land in question deriving title thereto from the feme devisee therein mentioned.\nThe action is brought to recover possession of part of the land so devised to the plaintiff, and as specified in the complaint. He alleges and contends that the \u201c watering hole on the road,\u201d designated in the devise as the beginning of the boundary line, is at a point alleged and specified in the complaint, and that the defendant is in the possession of land described on the plaintiff\u2019s side of that line, etc.\nThe defendant, in his answer, admits the will and the devise therein; alleges that he is the owner of the land so devised to the feme devisee mentioned, and denies that he is in possession of any part of the plaintiff\u2019s land, etc.\nThe case settled on appeal states that on the trial \u201cone of the main points in the controversy was the location of the beginning point on the road for dividing the land,\u201d that is, the \u201c watering hole,\u201d each party claiming a different location.\nThe following issue was submitted to the jury: \u201cIs the plaintiff entitled to the possession of the land described in the complaint? \u201d\nThe plaintiff asked the Court, upon the pleadings, proofs and admissions of the defendant, to answer that issue Yes.\nThis the Court refused, saying that he would reserve any question growing out of the pleadings and tenancy in common until after the verdict. To the refusal so to instruct the jury, the plaintiff excepted.\nThe jury answered the issue thus: \u201c No; we find the watering hole, claimed by the defendant, the starting place.\u201d\nUpon the return of the verdict the plaintiff again asked for judgment for the possession of the land with the defendant, which was refused by the Court, and the plaintiff again excepted.\n\u25a0 There was no evidence of any ouster of plaintiff by defendant, or demand of plaintiff to be let into possession, and refusal by defendant.\nNo demand of plaintiff, as averred, that the Court should instruct the jury-to respond to the issue, Yes.\nHis Honor instructed the jury, that as a matter of law, plaintiff and defendant were tenants in common, and the dispute was the beginning point on the road \u2014 plaintiff claiming one place and defendant another \u2014 and it was for them to say, from the evidence, which point was intended by the testator George Wynns, and they responded accordingly.\nUpon the verdict, the Court gave judgment for the defendant, and the plaintiff appealed to this Court.\nMr. P. B. Peebles, for plaintiff.\nMr. D. G. Winston, for defendant."
  },
  "file_name": "0353-01",
  "first_page_order": 387,
  "last_page_order": 391
}