{
  "id": 11274059,
  "name": "HARPER, v. ANDERSON",
  "name_abbreviation": "Harper v. Anderson",
  "decision_date": "1902-06-13",
  "docket_number": "",
  "first_page": "538",
  "last_page": "540",
  "citations": [
    {
      "type": "official",
      "cite": "130 N.C. 538"
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
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    "name_long": "North Carolina",
    "name": "N.C."
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    {
      "cite": "70 N. C., 706",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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    {
      "cite": "128 N. C., 222",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
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      "case_paths": [
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  "last_updated": "2023-07-14T15:31:43.301896+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
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  "casebody": {
    "judges": [],
    "parties": [
      "HARPER, v. ANDERSON."
    ],
    "opinions": [
      {
        "text": "CLARK, J.\nTbomas Anderson bought two adjoining tracts of land, tbe \u201cDickens tract\u201d and \u201cMicajah Anderson tract,\u201d at different times and under distinct deeds, describing each tract by metes and bounds. At bis death in 1898, be devised tbe \u201cDickens\u201d land to' plaintiff and her brother, Micajah Anderson, and by decree in partition proceedings tbe same was afterwards divided, tbe defendant not being a party. Tbe \u201cMicajah Anderson tract\u201d was devised to the defendant, who- has remained in possession of tbe locus in quo. It was in evidence that Tbomas Anderson cleared up tbe locus in quo, and cut a canal, which differed from the boundary, between the aforesaid tracts, and there was evidence by the defendant that, thereafter, Thomas Anderson always called the land south of and up to the canal the \u201cMicajah Anderson\u201d land, and the land north of the canal and up to the canal the \u201cDickens land.\u201d The locus in quo is eight acres on the south side of the canal, and the survey made under the order of the Court showed that it was within the boundaries of the original \u201cDickens\u201d land, as described in the deed therefor. There was also evidence tending to show that it was within the bounds of the original \u201cMicajah Anderson\u201d tract, as described in the deed therefor.\nIt was in evidence both by plaintiff and defendant that Thomas Anderson (their father) put the plaintiff in possession of the Dickens land up to the canal thirteen years before his death, and put the defendant in possession of the Micajah Anderson tract up to the canal eighteen years before his death, and they remained on the opposite sides, cultivating the land up to the canal, as their common boundary, up to Thomas Anderson\u2019s death, neither being required to pay rent.\nThe plaintiff introduced in evidence a survey and plot of the division of the Dickens land between the plaintiff and her brother, to show title in the plaintiff, and that the description in the Dickens deed covered the locus in quo. Defendant\u2019s objection was overruled, and he excepted. There was error, for defendant was not a party to that proceeding, and is in nowise bound by it.\nAt the close of the evidence, \u201cthe Judge was of the opinion that plaintiff was entitled to recover, and charged the jury to find for the plaintiff, which was done by the Judge answering the issue for the jury.\u201d This was error. The question for the jury was not that of two parties claiming under distinct deeds, where the boundaries of the deeds must govern, but here the title came from the same source, the will of their father. The question is, What did he mean when he spoke of the \u201cDickens\u201d land and the \u201cMica j ah Anderson\u201d land? Whether the locus in quo wras intended by him to be embraced in one or the other, was not to be determined solely by whether it was included within the bounds of the one or the other\u2019 deed, but that fact must be taken into consideration, together with the admission that he had made the canal a new boundary, putting one devisee in possession up to the canal on one side for eighteen years before his death, and the other on the other side up to the canal for thirteen years, thus treating it as a new boundary, and the evidence that, after digging the canal, Thomas. Anderson always termed the l.and on one side thereof the \u201cDickens\u201d land, and that on the other the \u201cMicajah Anderson\u201d land. Peebles v. Graham, 128 N. C., 222. This, if found true by the jury, would be very pregnant, if not conclusive, evidence that the testator had that division in mind in writing his will, especially taken in connection with the admitted long possession of the respective devisees up to the canal as the dividing line. Where the boundary is, is a fact to be decided by the jury. Clark v. Wagoner, 70 N. C., 706. Besides, \u201cA Judge may say to a jury there is no\u00a1 evidence tending to prove a fact, but he can never say a fact is proved.\u201d Cox v. R. Co., 123 N. C., 604.\nError.",
        "type": "majority",
        "author": "CLARK, J."
      }
    ],
    "attorneys": [
      "John L. Bridgers, for tbe plaintiffs.",
      "G. M. T. Fountain, for tbe defendant."
    ],
    "corrections": "",
    "head_matter": "HARPER, v. ANDERSON.\n(Filed June 13, 1902.)\n1. BOUNDARIES \u2014 Description\u2014Deeds-\u2014Questions for Jury.\nWhere a person wills two tracts of land, as the \u201cDickens\u201d and \u201cMicajah Anderson\u201d tracts, and there is contradictory evidence as to what land is covered by these two tracts, such evidence should be submitted to the jury.\n2. EVIDENCE \u2014 Partition Proceedings \u2014 Boundaries.\nWhere there is a dispute as to the boundaries of a tract of land, the survey and plat of the land, in a partition proceeding, is not competent evidence in another action in which one of the parties was nor a party to the partition proceedings.\n3. E VLDENCE \u2014 Sufficiency\u2014Verdict\u2014Directing.\nA trial judge may say ro a jury there is no evidence tending to prove a fact, but he can never say a face .s proved.\nActioN by Adrian Harper and wife against J. H. Anderson, beard by J udge E. W. Timberlahe and a jury, at October Term, 1901, of tbe Superior Court of Edgecombe County. Erom a judgment for tbe plaintiffs, tbe defendant appealed.\nJohn L. Bridgers, for tbe plaintiffs.\nG. M. T. Fountain, for tbe defendant."
  },
  "file_name": "0538-01",
  "first_page_order": 576,
  "last_page_order": 578
}