#### R. H. SPRUILL et al. v. W. T. HOPKINS.

(Filed 28 May, 1913.)

Evidence — Boundaries—Declarations of a t-iving Person.

Testimony of the declarations of a living person as to the boundaries of land in dispute is incompetent.

Appeal by defendants from Webb, J., at Spring Term, 1912, of Tyrrell.

This is an action to recover damages for cutting timber on a strip of land, claimed by tbe plaintiff to be a part of tbe Clayton tract of land.

Tbe defendants admit that tbe plaintiffs are tbe owners of tbe Clayton tract, but they deny that tbe land in controversy is a part of that tract.

*527Tbe Belgrade and Holly Grove tracts of land adjoin tbe Clayton tract.

Botb parties claim title under W. S. Pettigrew, wbo was tbe father of Charles Pettigrew.

Charles Pettigrew is now living, and there is no evidence in the record that he was at any time the owner of the land in dispute, or of the Belgrade land, or of the Holly Grove land.

Mr. Nooney testified for plaintiff: “Am 69 years old. I was overseer for Mr. Charles Pettigrew. I know the Clayton tract of land. Mr. Charles Pettigrew, while in possession of the Holly Grove and Belgrade tracts, told me not to cut on the land now in dispute. Said it was a part of the Noah Spruill’s Clayton land.” Defendants excepted.

There was a verdict and judgment for the plaintiffs, and defendants excepted and appealed.

M. Majette and W. M. Bond for plaintiff.

I. M. Meekins and Ward & Grimes for defendant.

Per CukiaM.

The evidence of the witness Nooney was very important on the issue before the jury, and was clearly hearsay and incompetent.

It is not brought within the rule admitting the declarations of a deceased witness, as the declarant is living; nor does it appear that either party claims under him, or that he was more than an agent in possession of the Belgrade and Holly Grove lands. Cansler v. Fite, 50 N. C., 426; Lawrence v. Hyman, 79 N. C., 211; Perkins v. Brinkley, 133 N. C., 350.

The evidence also fails to show that Mr. Pettigrew had any knowledge of the boundaries, or that he was doing more than expressing an opinion that the land in dispute was a part of the Clayton tract.

There must be a

New trial.