{ "id": 8656678, "name": "MARTHA GIBSON et als. v. STEPHEN TERRY", "name_abbreviation": "Gibson v. Terry", "decision_date": "1918-12-04", "docket_number": "", "first_page": "533", "last_page": "536", "citations": [ { "type": "official", "cite": "176 N.C. 533" } ], "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": [ { "cite": "157 N. C., 367", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 }, { "cite": "86 N. C., 402", "category": "reporters:state", "reporter": "N.C.", "opinion_index": 0 } ], "analysis": { "cardinality": 380, "char_count": 6474, "ocr_confidence": 0.465, "pagerank": { "raw": 5.8591662004228935e-08, "percentile": 0.3675368718407907 }, "sha256": "5825487cf6813d82c4fb782396c90fd6ed9f3719a144d6f16e6f20891c2577d8", "simhash": "1:5ce5ed1eac2c3806", "word_count": 1114 }, "last_updated": "2023-07-14T20:39:13.878101+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "MARTHA GIBSON et als. v. STEPHEN TERRY." ], "opinions": [ { "text": "Beown, J.\nThe land described in the complaint was devised by Champ G-. Terry to his two sons, A. T. Terry and Stephen Terry. The will contained the \u201cfurther proviso that my sons, A. T. and Stephen Terry, shall take good care and provision for my beloved wife, Eliza A. Terry, during her natural life.\u201d\nThe defendant pleads that he has been in the actual and adverse possession of the entire land for more than twenty years.\nThere is evidence that A. T. Terry removed to the West shortly after death of his father in October, 1893, and that Stephen Terry continued to reside on the land and cultivate it, and that his mother, Eliza Terry, resided with him until her death in 1904. A. T. Terry died intestate 16 June, 1917, leaving the plaintiffs and Stephen Terry as his heirs at law.\nThe defendant asked the following question of witness O. B. Terry:\nQ. State whether Mr. A. T. Terry told you, after the death of his father and before he left for the West, what he had done with his interest in this land \u2014 whether he told you he had given his interest in this land for Mr. Stephen Terry to take care of his mother?\nObjection by plaintiffs; sustained. (The court stating that if-the purpose of the question was to prove conveyance of land, the same was incompetent. The defendant stated no other purpose and the objection was sustained.) Defendant excepts.\nThis exception cannot be sustained. It was defendant\u2019s duty after leaving the statement of the judge to state for what purpose he asked the question. It is incompetent for the purpose of proving a conveyance of land as stated by the court. If the purpose of the question was to elicit evidence tending to prove adverse possession defendant should have so explained in response to the court.\nThere is another reason why the exception cannot be sustained. While the question indicates what the defendant was endeavoring to prove, it does not appear in the case on appeal what the witness would have testi-fied to. He might have answered \u201cYes\u201d or \u201cNo.\u201d\nIn Knight v. Killbrew, 86 N. C., 402, the Court says: \u201cIt is a settled rule that error cannot be assigned in the ruling out of evidence unless \u2022it is distinctly shown what the evidence was in order that its relevancy may appear, and that a prejudice has arisen from its rejection.\u201d This is cited with approval by Justice Allen in Stout v. Turnpike Co., 157 N. C., 367.\nIt should have been stated in making up the case on appeal what the witness would have testified to if permitted to answer the question.\nPlaintiffs offer original return of tax records identified by Stephen Terry in his cross-examination. Objection by defendant; overruled; defendant excepts.\nTax records are as follows:\nTax list of Stephen Terry \u2014 Postoffice: Ellerbe, N. C. Township: Mineral Springs. Number of acres: 46%. Description: Gibson Mills; value, $223. Also shows personal property listed. Duly verified, usual form, before E. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Terry.\nTax list of A. T. Terry \u2014 Postoffice: D.onville, Miss. Township: Mineral Springs. Address of agent to- whom notice may be given: Stephen Terry. Number of acres: 46%. Description: Gibson Mills; value, $223. Duly verified, usual form, before E. L. Thomas, list taker, 9 May, 1917. (Signed) Stephen Terry.\n' In 1916, 42% acres listed, each in name of A. T. Terry and Stephen Terry and signed by Stephen Terry, but address of agent to whom notice may be given left blank.\nIn tbe complaint tbe land is described as 93 acres, and \u201cbeing tbe same land that was devised to Stephen Terry and A. T. Terry by Champ G. Terry.\u201d\nIn bis testimony, tbe defendant admitted tbat there was 93 acres in tbe .tract, and testified further: \u201cYes, it is a fact tbat I gave in only 46% acres for myself and 46% acres for A. T. Terry. Yes, it is a fact tbat I always gave it in as bis, and also gave it in as mine, and paid tbe taxes and gave it in tbe same on up through tbe year 1917.\u201d\nThis evidence, coming from tbe defendant in person and supported by tbe original tax lists signed by him, is not only competent, but very powerful if not conclusive evidence tbat tbe possession of defendant bad never become adverse, but tbat it was permissive and in recognition of bis brother\u2019s title.\nTbe remaining assignments of error are without merit and need not be discussed.\nNo error.", "type": "majority", "author": "Beown, J." } ], "attorneys": [ "A. B. McPhail and W. B. J ones for plaintiffs.", "L. Medlin and Bynum & Thomas for defendant." ], "corrections": "", "head_matter": "MARTHA GIBSON et als. v. STEPHEN TERRY.\n(Filed 4 December, 1918.)\n1. Appeal and Error \u2014 Objections and Exceptions \u2014 Evidence\u2014Ground of Exception \u2014 Statement by Court.\nUpon the trial of an action to recover lands, there was evidence that the father of the plaintiffs, A., and the defendant, S., took the lands by devise from their father, with provisions that they should care for their mother until lier death; that A. moved West after the death of his father, and that S. remained with his mother until her death. S. offered to show by his witness the declarations of A. before he moved away, which were excluded by the judge, under his statement that they were incompetent if for the purpose of proving a conveyance of the land: Held, the evidence for that purpose was incompetent, and it devolved upon the defendant to state any other ground upon which he had offered it, if any he had, for his exception to have consideration thereon.\n2. Appeal and Error \u2014 Objections and Exceptions \u2014 Unanswered Questions \u2014 \u25a0 Record.\nException to the exclusion of questions asked a witness upon the trial must show, in some proper way, the relevancy and bearing the expected answers would have on the controversy, so that the Supreme Court may determine whether the appellant has been prejudiced, or the exception will not be considered.\n3. Limitation of Actions \u2014 Title \u2014 Adverse Possession \u2014 Tax Lists \u2014 Admissions \u2014 Evidence.\nThe original tax list offered on defendant\u2019s cross-examination, over his signature, which fact he admitted, showing that the land in controversy had been listed by him in the name of plaintiff\u2019s ancestor, under whom they claim, within a shorter period than twenty years, is evidence against the defendant\u2019s claim of title by adverse possession for the twenty-year period.\n\u2022 PetitioN for partition, in which, defendant pleaded sole seisin, tried before Adams, J., at September Term, 1918, of RICHMOND.\nThe only issue submitted or tendered is as follows: Is plaintiff\u2019s cause of action barred by the statutes of limitation? Answer: \u201cNo.\u201d\nA. B. McPhail and W. B. J ones for plaintiffs.\nL. Medlin and Bynum & Thomas for defendant." }, "file_name": "0533-01", "first_page_order": 585, "last_page_order": 588 }