#### R. P. TAYLOR et al. v. J. F. MEADOWS et al.

(Filed 26 October, 1921.)

Instructions — Evidence—Testimony of One Witness — Excluding Testimony — Trials—Appeal and Error.

• Where tbe dividing line, or lines, between-the lands of the plaintiff and defendant are in dispute in an action of-ejectment, and deeds and maps of survey relating thereto are in evidence, together with the testimony of the surveyor, an instruction, in effect, that the jury render their verdict accordingly, without regard to the oral testimony offered by either side to show the proper location of the lines, is erroneous in singling out the testimony of one witness by name, and also in taking his evidence out of its proper setting in its relation to the other evidence, which may have tended to modify or explain it.

Appeal by defendants from Horton, J., at April Term, 1921, of GRANVILLE.

Civil action in ejectment. Tbe locus in quo in a small strip of land 80 feet wide by 161 1-3 feet long, situated on tbe north side of Williams-boro Street in tbe city of Oxford. Tbe facts are fully set forth in 175 N. C., 373, where this case is reported on a former appeal, and tbe evidence as there stated is substantially tbe same upon tbe present record.

From a verdict and judgment in favor of plaintiffs, tbe defendants appealed.

A. W. Graham & Son, A. L. Broolcs, James A. Taylor, and D. G. Brummitt for plaintiffs.

Hides & Stem,, Parham & Lassiter, Royster & Royster, and T. T. Hides & Son for defendants.

Stacy, J.

Tbe case at bar has been tried three times in tbe Superior Court, and this is tbe third appeal here. Former opinions reported in 169 N. C., 124, and 175 N. C., 373. As desirable as an ending of this litigation would seem, we are unable to sustain tbe following portion of bis Honor’s charge, which was given at tbe request of tbe plaintiffs, and to which tbe defendants have specifically excepted:

> “That if from tbe calls in tbe deeds and tbe map of survey offered in evidence, and tbe testimony of tbe surveyor explaining such survey, you are satisfied as to tbe proper location of tbe several lines bounding tbe land in dispute, then it would be your duty to act upon tbe same and render your verdict accordingly without regard to tbe oral testimony offered by either side tending to show tbe proper location of tbe line or lines.”

*267Tbis instruction was erroneous, because its effect was to give undue credit to tbe testimony of tbe surveyor. Tbe plaintiffs were not entitled to bave tbe court single out by name any one witness from among all tbe others, wbo bad testified to tbe same matter, and tell tbem tbat if tbey were satisfied from bis evidence, taken in connection witb tbe deeds and tbe map, tbey should render their verdict accordingly. Tbis was in direct conflict witb a number of our decisions. Cogdell v. R. R., 129 N. C., 398; Jackson v. Comrs., 76 N. C., 282; Anderson v. Steamboat Co., 64 N. C., 399. In Weisenfield v. McLean, 96 N. C., 248, Davis, J., speaking for tbe Court, said: “It would be error to single out tbe testimony of one witness, when there are others testifying to tbe same matters, and charge tbe jury tbat if tbey believed tbat- witness, tbey must find in accordance witb bis testimony.” And tbis for tbe very good reason, among others, tbat though tbe witness may speak truthfully, yet bis evidence is given in tbe light of other testimony which may tend to modify and explain it, and it would be improper to take it from its own setting. Willey v. Gatling, 70 N. C., 410.

There are other exceptions appearing on tbe record worthy of consideration, but we apprehend tbey will not arise on another bearing.

For tbe error, as indicated, tbe cause must be tried again, and it is so ordered.

New trial.