#### MECHANICS BANK AND TRUST COMPANY v. H. B. WHILDEN, E. S. JOHNSTON, Trustee, et al.

(Filed 22 December, 1917.)

1. Evidence — Depositions—Relevancy—Former Trial.

While depositions properly and regularly taken and introduced on a former action between the same parties or those in privity therewith may properly be introduced on the later trial under certain circumstances, their rejection will not be held for error unless it is made to appear that the proposed evidence was relevant and reasonably calculated to have appreciable effect in the verdict.

2. Evidence — Declarations—Corroboration—Appeal and Error.

Declarations not admissible as substantive evidence under the rule are properly rejected as corroborative of evidence excluded on the trial when there is no substantive evidence of like effect.

3. Boundaries — Evidence—Declarations—Interest—Ante Litem Motam.

Parol evidence of declarations as to the placing of the corner of private lands of which the title is in dispute is allowed when made ante litem motam by a declarant who was disinterested at the time, and dead at the time of trial; and in such case the lapse of time is not always controlling.

4. Same — Remote Period — Definite Corners.

Parol evidence of. common reputation as to the placing of a corner, on the question of private boundary, is admissible when shown to have existed for a remote period and direct evidence of its origin is not likely to be procurable; such reputation must always be shown to have existed cmte Utem motam, and should attach itself to some muniment of title, or natural object, or be fortified by testimony of occupation and acquiescence tending to give the land some definite and fixed location.

5. Same — State Grants.

Where both parties to the action claim lands by mesne conveyances under separate grants from the State, and the controversy is made to depend upon the location of the lands under the defendant’s grant, with description, “Beginning at a locust near the gap of the trail, between Johnson’s and McManus’, and runs,” etc., and defendant insists the locus was at “J,” while the plaintiff that it was at “O,” Held, general reputation as to the location of an indefinite tract of land, not shown to have been at a remote period or ante Utem motam, etc.,- is properly excluded, and general reputation as to the location of the Johnson and McManus tracts and the trail between tending to show the corner locus at “O” is competent, it appearing that the declarant was dead, disinterested, and his declarations made ante Utem motam, the lapse of time not considered controlling.

Civil actioN to recover land, tried before Ferguson, J., and a jury at June Term, 1917, of Graham.

• Plaintiff claimed the land under and by virtue of Grant No. 7315, of date August, 1885, covering the land, and introduced said grant in evidence. Defendant, admitting possession, claimed the land .under *53Grant No. 3522, of date May 27, 1872, and introduced same in evidence. It was admitted by defendant tbat plaintiff, by proper mesne conveyances, could connect itself witb its grant introduced by it, and by plaintiff tbat defendants bad a proper paper title connecting tbem witb tbeir Grant No. 3522.

Tbe controversy, tben, was strictly on tbe true location of defendant’s grant and wbetber same covered tbe land in dispute. Tbe calls of said grant are as follows: “Beginning at a locust near tbe gap of-tbe trail, between Johnston’s- and McManus’, and runs N. 45 E. 127 poles to a stake, then N. 80 E. 226 poles to a stake; thence S. 10 W. 223 poles to a stake; thence S. 80 W. 226 poles to a stake; thence N. 320 poles to tbe beginning.”

Defendant insisted tbat tbe beginning comer of tbeir grant, tbe locust, was at a point marked “J” on tbe map, and so placed, tbe course and calls of tbe grant covered tbe land.

, Plaintiff contended tbat tbe locust, or beginning corner of defendant’s grant, was not at “J,” but at a point marked “O,” a mile away or near tbat.

On issue submitted tbe jury rendered tbe following verdict:

“Have defendants located tbeir grant (3522), and if so, at what point is tbe beginning comer ?” Answer: “N.”

Judgment for plaintiff and defendants excepted and appealed.

J. N. Moody for plaintiff.

Bryson & Black, A. W. Horn, and B. 0. Phillips for defendant.

Hoke, J.

We have carefully examined tbe record and find no reason for disturbing tbe result's of tbe trial. It was chiefly urged for error tbat tbe court, on objection of plaintiff, excluded a deposition, offered by defendant, of William Williams taken in a former suit between these parties other than Fred S. Johnston, tbe record of such suit having been first introduced, showing tbat tbe cause involved practically tbe same issue aS tbat now presented, and on proof ultra tbat tbe deponent was now 84 or 85 years of age, very feeble, and resident in tbe State of Tennessee.

So far as tbe subject-matter of the two actions are concerned and tbe identity of tbe issues involved, we incline to tbe opinion tbat tbe deposition could have very well been received in evidence, in accord witb tbe principle expressed and approved in tbe recent and well-considered ease of Hartis v. Electric Ry., 162 N. C., 236, opinion by Associate Justice Allen, a position tbat should undoubtedly prevail in case tbe new party, Fred S. Johnston, has acquired and bolds bis interest in privity with tbe former action, a fact tbat is very probably true. Settee v. Electric *54 Co., 171 N. C., 440; Cooper v. R. R., 170 N. C., 490; Bryan v. Malloy, 90 N. C., 509.

The exception, however, is not available to defendant on the present record, for the reason that it nowhere appears either that the deposition was introduced on the former trial or that it was sufficiently regular in the way of notice or otherwise to justify its admission, and, further, it is nowhere shown by suggestion or otherwise that the contents of the deposition were material to the inquiry. Waiving the question of any irregularity of the deposition, as the objection was. not made on that ground, it has been uniformly held with us that, in order for the rejection of evidence to constitute reversible error it must appear that the proposed evidence was relevant and was reasonably calculated to have appreciable effect on the decision of the issue. Goins v. Training School, 169 N. C., 736.

The objection to the declarations of this deponent and other persons as to the placing of a disputed corner fails with the exclusion of the deposition. It appéaring that the declarant is now. alive, his statements are not admissible as substantive evidence under the requirements for the reception of hearsay evidence of this character. They could only, therefore, be received in corroboration of his testimony, and this having been excluded, the exception is disallowed. We do not understand that the learned and careful counsel insist on this objection if -the deposition has been properly excluded.

Defendants, further, object to the exclusion of two questions on general reputation, as follows:

a. “Is there a general reputation in that country as to what tract of land covers the sawmill branch country?”

b. “Is there a general reputation in that country as to what tract of land the locust at J is the corner of ?”

We have repeatedly held that declarations and common reputation, under some circumstances, are competent in this State on questions of private boundary. Sullivan v. Blount, 165 N. C., 7; Lamb v. Copeland, 158 N. C., 136; Bland v. Beasley, 140 N. C., 628; Hemphill v. Hemphill, 138 N. C., 504; Yow v. Hamilton, 136 N. C., 357.

The conditions for the reception of such evidence of either kind are given in Lamb v. Copeland, supra, as follows: “Parol evidence of declarations as to the placing of the corner of private lands of which the title is in dispute is allowed when made ante litem motam by a declarant who was disinterested at the time and dead at the time of the trial; and in such case the lapse of time is not always controlling.

“Parol evidence of common reputation as to the placing of a corner on the question of private boundary is also admissible in this State when the same is shown to have existed from a remote period and direct *55evidence of its origin is not likely to be procurable. Suck reputation must always be shown to have existed ante litem motam, and should attach itself to some monument of boundary, or natural object, or be fortified by testimony of occupation and acquiescence tending to give the land some definite and fixed location.”

In further elucidation of the requirement that evidence of .common reputation must give itself some fixed and definite placing, the Court, in Bland v. Beasley, supra, at p. 632, quotes from Mendenhall v. Cassels, 20 N. C., 43, as follows:

> “In a country recently and of course thinly settled, and where the monuments of boundary are neither so extensively known nor so permanent in their nature as in the country of our ancestors, we have from necessity departed somewhat from the English rule as to traditionary evidence. ¥e receive it in regard to private boundaries, but we require that it should either have something more definite to which it can adhere, or that it should be supported by proof of' corresponding enjoyment and acquiescence. A tree, line, or water course may be shown to have been pointed out by persons of a bygone generation as the true line or water course called for in an old deed or,grant. A field, house, meadow, or wood may be shown to have been reputed the property of a particular man or family, and to haves been claimed, enjoyed, and occupied as such. But a mere report, unfortified by evidence of enjoyment or acquiescence, that a man’s paper-title covers certain territory is too slight and unsatisfactory to warrant a rational and conscientious person in making it the basis of a decision affecting important rights of his fellow men, and therefore, as far as we are advised, has never been received as competent testimony.”

Applying these principles, if it be conceded that these questions sufficiently comply with the requirement that the common reputation sought for should fix itself on some definite placing, they altogether fail as to the additional requirement that such reputation, to be admissible, must be shown to have had its origin at a remote period or, that it arose even ante, litem motam; this last being always essential.

Again, it was objected that the witness Crisp, testifying for plaintiff, was allowed to give the declarations of Frank Cooper, deceased, as to the location of the McManus place and the Johnston place and as to the location of the trail between the Johnston and McManus places, his answer tending to support plaintiff’s position that the beginning corner of defendant’s grant was at “O,” etc., and did not cover the land in dispute. All the conditions required by the authorities for the reception of such evidence were present here. This trail being a locative call in defendant’s grant, it appeared that the declarant was dead, disinterested, and that his declarations were made ante litem motam and, as shown in *56 Lamb’s casa, supra, tbis being tbe relevant declaration of a deceased witness as 'to tbe location of a specified call of tbe grant; tbe lapse of time is not, as in case of common reputation, always considered controlling.

So far as we can see, tbe remaining exceptions are without merit, and on tbe record, we are of opinion that tbe judgment belpw should be affirmed.

No error.