MARY A. STALLINGS et al. v. RICHARD HURDLE.

(Filed 15 September, 1915.)

1. Evidence — Hearsay—Declarations.

Declarations made by a person on a survey, in which, he was representing a third person and acting for him in a controversy, not between plaintiff and defendant, or their ancestors in title, but between defendant and the third person, were incompetent, where they were in the interest of the third person.

2. Adverse Possession — Evidence—Sufficiency.

Evidence 7ield to sustain a finding that plaintiffs had been in the adverse possession of a strip of land for the statutory period.

8. Appeal and Error — Questions EeviewaWe — Questions Hot Raised in Trial Court.

It is too late on appeal to raise a question by exception to the charge, entered after trial, which if made at the time could have been cured by proof, which was not offered owing to an admission of appellant. An exception to a charge, that the court erred in charging that twenty years adverse possession was sufficient, raised for the first time on appeal, is equivalent to an exception after trial that the judge did not charge that the evidence was not sufficient to go to the jury, and cannot be entertained.

Appeal by defendant from Ferguson, J., at April Term, 1914, of PeR.quimaNs.

From a judgment for plaintiffs, defendant appeals.

Ward & Grimes and Gharles Whedbee for plaintiffs.

Ward & Thompson and P. W. McMullan for defendant.

Clark, 0. J.

This action was brought to determine the boundary line between plaintiffs and defendant, and the complaint alleged that in an action determined in 1892, in which this defendant was plaintiff and the ancestor in title of the plaintiffs was the then defendant, there was an award duly entered of record in accordance with law, and a plat attached thereto, and that thereunder the land now claimed by the plaintiffs was awarded their ancestor, the then defendant, and such award is pleaded in this action as an estoppel against this defendant. The defendant admits the said award, but denies that the line then adjudicated is as claimed in the complaint, and further pleads that since the entering of said award, and for more than twenty years prior to the beginning of this action, the defendant had been in possession of the land in controversy openly, notoriously, and adversely.

*5At tbe beginning of tbe trial tbe following admission was entered on tbe record: “Admitted by both parties tbat tbe plaintiffs owned east of tbe black line on tbe map and tbe defendant owned west of tbe red line.”

In tbe charge tbe court stated (to wbicb there is no exception) : “It is conceded upon tbe part of tbe plaintiffs tbat tbe defendant owns tbe land west of tbe true line lying between tbe respective tracts, and it is conceded upon tbe part of tbe defendant tbat tbe plaintiffs own tbe land east of tbe true line between tbem.”

Tbe controversy was, therefore, not one of title, but simply a question of boundary, and it is over 2% acres of land, on wbicb tbe plaintiffs allege tbat tbe defendant bas trespassed by cutting and removing a log. Tbe jury found the boundary to be as claimed by tbe plaintiffs, and assessed tbe damages at 5 cents.

Tbe assignments of error may be grouped into three:

1. Tbe defendant excepted to tbe refusal of tbe court to allow tbe defendant to testify as to tbe statement made by one Elsbury Eiddick in regard to tbe location of tbe line.

Tbe statement was made by Eiddick during a survey in wbicb be was representing one Eason, and acting for him in a controversy not between tbe defendant and present plaintiffs, or their ancestor in title, but between tbe defendant .in this action and said Eason. Tbe statement sought to be brought out would have extended tbe boundaries of Eason, whom Eiddick was then representing, and was a declaration in tbe interest of tbe party be was representing. It was, therefore, incompetent. Tbe law as to tbe admission of declarations in such cases is so clearly stated, with citation of authorities, by Mr. Justice Allen in Sullivan v. Blount, 165 N. C., 7, tbat it is not necessary to discuss tbe proposition.

2. Tbe assignments of error 3 to 11, inclusive, relate to tbe question whether there was any evidence tbat tbe plaintiffs bad shown twenty years possession of tbe strip of land claimed by tbem outside of tbe fence; tbe black line approximately representing tbe fence around tbe cleared land of tbe plaintiffs. Aside from tbe finding of tbe arbitrators in 1892, and tbe Babb plat, there was evidence of a line of marked trees' through tbe woods, and tbat tbe plaintiffs and their father bad used tbe piece of land between tbe fence and tbe Babb line continuously and for such purposes as it was susceptible of; tbat they bad hogpens on it; tbat they cut wood on it every year; tbat all their stovewood was cut therefrom, and tbat tbe defendant bad recognized tbe line and bad sold timber up to it.

Tbe doctrine as to what evidence is sufficient to show possession is fully stated by Mr. Justice Walker in Locklear v. Savage, 159 N. C., 236, and in tbe authorities there collected.

*63. The third ground urged as error is that the court charged the jury that twenty years adverse possession on the part of the plaintiffs was sufficient^ and that he should have charged, instead, that thirty years possession was necessary in order to show title out of the State.

The defendant at the beginning of the trial admitted that the plaintiffs owned the land on the east side of the true line, and the plaintiffs admitted that the defendant owned the land on the west side of the true line, and the whole case was tried upon the theory of determining the boundary, and not the question of title. It is too late on appeal to raise a question by exception to the charge, entered after the trial, which if made at the time could have been cured, doubtless, by proof which was not offered owing to the admission of the defendant. Such exception to the charge after trial is equivalent to an exception after the trial that the judge did not charge that the evidence was not sufficient to go to the jury, and cannot be entertained. S. v. Houston, 155 N. C., 433, and cases cited.

No error.