#### HATTIE HOWARD BOWMAN and Husband v. WEST HOWARD and Wife.

(Filed 14 December, 1921.)

1. Partition — Pleadings—Ejectment—Court’s Discretion.

Tbe plea of sole seizin in proceedings to partition lands converts them into an action of ejectment; and where tbe pleadings bave become complicated and involved it is witbin tbe discretion of tbe trial judge to order tbe filing of new pleadings to present the clear-cut issue, as such does not change' tbe cause of action.

2. Pleadings — Amendments—Court’s Discretion — Exceptions—Appeal and Error.

Exceptions to tbe pleadings in partition proceedings as to sufficiency of allegations, etc., cannot be sustained on appeal when it appears that upon the plea of sole seizin tbe court has ordered new pleadings to be filed that bave presented tbe clear-cut issue upon tbe evidence introduced at tbe trial.

3. Evidence — Declarations—Ante Litem Motam — Adverse Possession— Limitation of Actions — Appeal and Error — Harmless Error.

Where it is claimed that tbe former owner of lands, under whom a party claims by descent, has acquired title by adverse possession, it is competent to show, as substantive evidence, by a witness owning adjoining lands that ante Utem motam bis grantor staked out a corner therein for tbe purposes of a survey, which tbe ancestor of tbe party acknowledged to be tbe true line; and tbe further statement that tbe ancestor showed tbe witness tbe “common corner” is held too indefinite to be material, under tbe facts of this case.

4. Descent and Distribution — Illegitimates—Slaves—Marriage—Evidence —Hearsay Evidence — Traditions.

Where one claims lands of bis father by descent by reason of tbe subsequent marriage of bis parents, tbe child so born is recognized as legitimate for tbe purpose of inheriting, and this may be shown by evidence of tbe declarations of tbe parents, or by family traditions ante litem motam, this being an exception to tbe rule excluding hearsay evidence. O. S., 279, 2417.

5. Evidence — Adverse Possession — Boundaries — Declarations — Ante Litem Motam.

Where tbe title of a party to tbe action depends upon her legitimacy under a subsequent marriage of her parents, with evidence of family traditions to that effect, the words “reputed father,” used in tbe statute, are construed to mean “considered, or generally supposed, or accepted by general or public opinion” to be such, and an exception claiming that they should be construed to mean “actual father” is without merit.

6. Constitutional Law — Statutes—Descent and Distribution — Illegitimates —Marriage.

Only those who would inherit, or bave a vested right in tbe lands, may contest tbe constitutionality of O. S., 279, providing that a child born out of wedlock may inherit from her father who thereafter married tbe mother of the bastard.

*6637. Trials — Misconduct of Juror — Courts—Discretion—Appeal and Error.

Where, without the knowledge of either the court or the attorneys for the parties, a jury, after taking the case, views the land to which the title is in dispute, and the attorneys are informed of the fact about four hours before the verdict was rendered, and have not called the fact to the attention of the judge, it is in his discretion to set aside the verdict for the misconduct of the jurors, and his action in not so doing is not reviewable on appeal.

Stacy, J., dissenting.

Appeal by defendant from Ray, J., at tbe March Term, 1921, of SCOTLAND.

Tbe plaintiff, Hattie Bowman, instituted before tbe clerk two proceedings for a sale for partition of tbe lot in controversy. In February, 1916, Lizzie Howard London conveyed to West Howard a deed for said lot, and on tbe day following West Howard reconveyed a portion of said lot to bis mother, Lizzie Howard London. In one of these proceedings West Howard was defendant, and in tbe other Lizzie Howard London was defendant. Lizzie died intestate in June, 1920, leaving West Howard as her only heir at law, and be was made party defendant in tbe proceeding originally instituted against her. Upon a plea of sole seizin, tbe cases were transferred to tbe civil docket, and when called for trial were consolidated. Tbe issues and tbe answers thereto are as follows:

“1. Was Charlie Howard, at tbe time of bis death, tbe owner and seized in fee simple and in possession of tbe lands described in paragraph one of tbe petition and amended complaint? Answer: Wes.’

“2. Is tbe plaintiff, Hattie Howard Bowman, tbe sole heir at law of Charlie Howard, deceased? Answer: ‘Yes.’

“3. Is tbe plaintiff, Hattie Howard Bowman, tbe owner and entitled to tbe immediate possession of tbe lands described in paragraph one of tbe petition and amended complaint? Answer: ‘Yes.’ ”

Alter judgment, tbe defendant having entered exceptions of record, appealed.

G. T. Goodwyn and Russell & Weatherspoon for plaintiff.

Gox & Dunn for defendant.

AdaMS, J.

Tbe plaintiff instituted two proceedings for a sale of land for partition. In each petition she alleged that Charlie Howard died intestate in January, 1916, seized and possessed of tbe lot in controversy, leaving surviving him as bis only heirs at law two daughters, tbe plaintiff and Lizzie Howard London, tbe defendant’s mother, and that tbe plaintiff and tbe defendant were tenants in common and entitled each *664to a one-balf undivided interest. The defendant denied the material allegations, alleged that at the time of her death Lizzie held the title in fee, and that the defendant was sole seized. The eases were thereupon transferred to the civil docket, and when they were called for trial the court granted the plaintiff leave to reply. In each case the plaintiff filed a replication, which, in effect, contradicted her former allegation that she and Lizzie were cotenants, and admitted, as the defendant alleged, that Lizzie was not an heir of Charlie Howard. When the replications were filed, the defendant asked leave to amend his answer so as to allege that he was, and the plaintiff was not, Charlie Howard’s heir at law. The motion was disallowed, and the defendant excepted. The defendant then moved for leave “to reply to the replies,” and excepted to the court’s denial of the motion. The next recourse of the defendant — a demurrer ore terms to the replies — the court held to be unavailing, and again exception was duly entered.

In “A Treatise on the Principles of Pleading,” page 135, Stephen says: “On the whole, therefore, the author conceives the chief objects of pleading to be these: that the parties be brought to an issue, and that the issue so produced be material, single, and certain in its quality. In addition to these, however, the system of pleading has always pursued those general objects also, which every enlightened plan of judicature professes to regard: the avoidance of obscurity and confusion, of prolixity, and delay.” Regard for this familiar principle no doubt moved his Honor to strike out the replications, and to make an order allowing the plaintiff to file a complaint with the usual allegations in ejectment, and allowing the defendant to file an answer thereto. To this order, also, the defendant excepted; but the court properly resolved to clear away the confusion produced by the inconsistent pleadings. The court, it will be noted, did not change the cause of action. The plea of sole seizin had already converted the XDroceeding into an action of ejectment (Sipe v. Herman, 161 N. C., 108), and the obvious purpose of the judge was “to bring the parties to an issue.” The amended pleadings afforded ample opportunity tc safeguard every right these exceptions were intended to preserve. For this reason exceptions 1, 2, 3, and 22 to 25, inclusive, are overruled.

The fourth exception was taken to his Honor’s conclusion that in the defendant’s original answers there was not sufficient allegation that Lizzie Howard London, mother of the defendant, was an heir at law of Charlie Howard. This, ruling was made, however, before the amended pleadings were filed, and was not intended to apply, and by its terms did not apply, to the complaint and answer upon which the consolidated cases were tried. The evidence tended to show that Lizzie was born in Virginia some time before her mother came to North Carolina, and, of *665■course, before sbe made tbe acquaintance of Obarlie Howard. Indeed, after tbe amended pleadings were filed tbe defendant’s chief purpose seems to have been to show tbat tbe plaintiff was not tbe beir of Obarlie Howard; and tbe trend of tbe defendant’s eyidence and tbe charge of tbe court indicate tbat the-defense was based almost entirely on this theory. We are therefore satisfied tbat in tbe respect referred to tbe defendant was not materially prejudiced, and that tbe fourth exception cannot be sustained.

Exceptions 5 to 12, inelusiye, impute error to tbe admission of E. A. Smith’s testimony concerning tbe boundaries' of tbe lot, up to which Obarlie Howard claimed title. Tbe beginning corner of tbe lot in controversy was “at an iron stake, Duncan Smith’s corner.” Tbe witness testified that be was tbe Smith referred to, and knew tbe location of this corner; tbat at tbe time be purchased from McLaurin bis land was surveyed ; and McLaurin at tbat time “put down” the corner in controversy as a corner of tbe land sold to tbe witness.

Charlie Howard bad no paper title. Tbe plaintiff relied upon Howard’s alleged adverse possession, and.it was particularly important for her to show tbe “known and visible lines and boundaries” of tbe lot. Tbe evidence excepted to was competent. Evidence tbat McLaurin bad “put down” the corner was substantive, not hearsay; but if it can be construed as a declaration tending to locate bis own land it was contemporaneous with tbe survey (Cherry v. Slade, 7 N. C., 86); and if as a declaration concerning tbe corner of an adjoining lot, it was likewise admissible. Mason v. McCormick, 85 N. C., 226; Fry v. Currie, 91 N. C., 439. Also, tbe statement of tbe witness tbat. Obarlie Howard showed him tbe “common corner” is entirely too indefinite to constitute reversible error.

Exceptions 13 to 20, inclusive, assail tbe admissibility of Charlie’s and Oelie’s declarations concerning tbe paternity of Hattie. There was evidence for tbe plaintiff which tended to show tbat Oelie and Lizzie, her older daughter, were brought from Virginia to Eockingbam in 1862; tbat after tlie custom of slaves Oelie intermarried with Obarlie Howard a few years afterward, and that Hattie was born after tbe marriage. C. S., 2497; Bettis v. Avery, 140 N. C., 187; Erwin v. Bailey, 123 N. C., 628; Long v. Barnes, 87 N. C., 330. If tbe jury should accept this evidence, tbe declarations, made ante litem motcim by tbe alleged father and mother, who have since died, were admissible without regard to C. S., 279. Family tradition or pedigree is a recognized exception to tbe rule which generally excludes hearsay evidence. Hodges v. Hodges, 106 N. C., 374; Rollins v. Wicker, 154 N. C., 560; Turner v. Battle, 175 N. C., 219; Moffitt v. Witherspoon, 32 N. C., 186.

*666In answer to tbe question whether he knew the reputed father of Hattie, a witness was permitted to testify over the defendant’s objection that he knew her as Charlie Howard’s daughter. , O. S., 279, is as follows : “When the mother of any bastard child and the reputed father of such child shall intermarry or shall have intermarried at any time after the birth of such child, the child shall in all respects after such intermarriage be deemed and held to be legitimate, and is entitled to all the rights in and to the estate, real and personal, of its father and mother that it would have had had it been born in lawful wedlock.”

In the case on appeal it is said: “No contention as to the statute was made by the defendant except as to the construction of the words ‘reputed father,’ which the defendant contended should be construed to mean ‘actual father.’ ” The exception is not meritorious. The word “reputed” means considered, or generally supposed, or accepted by general or public opinion. 34 Cyc., 1625; Black’s Law Dic., 1022; Pav. Co. v. Lyons, 43 Pac., 599. In McBride v. Sullivan, 155 Ala., 174, Simpson, J., says r “The use of the word ‘reputed’ was intended merely to dispense with absolute proof of paternity, so that, if the child is ‘regarded,’ ‘deemed,’ ‘considered,’ or ‘held in thought’"by the parents themselves as their child, either before or after marriage, it is legitimate.”

The issues were framed so as to present the various contentions-of each party; and the theory upon which the defense was conducted indicates that the instruction to which the thirty-first exception was-directed is not reversible error. Upon this theory his Honor’s charge as to adverse possession also is approved. The first paragraph of the charge, construing C. S., 279, is free from error, and the second paragraph is sustained by the authorities. McBride v. Sullivan, 155 Ala., supra; 22 C. J., 239; Kelly v. McGuire, 15 Ark., 555. If the brothers or sisters of Charlie Howard bring suit to recover the land, the constitutionality of section 279 may be put to the test, but upon the evidence in this case and the theory of the defense we are at a loss to see how the defendant can invoke the doctrine of vested rights.

The forty-fifth exception is to the refusal of the court to set aside the verdict for alleged misconduct of the jury. Charlie Howard claimed to have had possession of the land for more than twenty years under known and visible lines and boundaries. The court found these to be the facts: Without permission of the court or the consent of counsel, the jury went near the property, and one or two of the jurors walked into the yard, and were told by a woman who was there how far back the lot extended. She said nothing about possession. The jury returned to the courthouse about nine o’clock, and before the court convened the officer in charge remarked in the presence of counsel for each party that the jury had gone over the lot. Approximately four hours elapsed *667before the verdict was returned, during which counsel had ample time and opportunity to investigate the facts. The court held that the conduct of the jury might have been prejudicial to the defendant, but that the defendant’s counsel remained silent when they should have spoken, and denied the motion.

Not infrequently a new trial is granted when jurors, without the authority of the court or consent of the parties, have examined or inspected a place or thing which is the subject of conflicting evidence, but ordinarily the disposition of matters of this kind is within the sound discretion of the court. When the question relates to a juror’s misconduct, it is generally within the discretion of the presiding judge to refuse to grant a new trial, if he is satisfied that the verdict should not be set aside. Harrington v. R. R., 157 Mass., 582; Bank v. Burns, 120 N. W. R., 626; S. v. Tilghman, 33 N. C., 513; Willeford v. Bailey, 132 N. C., 408; S. v. Boggan, 133 N. C., 766; S. v. McKenzie, 166 N. C., 296.

We have considered all the exceptions relied on, and find no sufficient cause for disturbing the verdict.

No error.

Stacy, J.,

dissenting in part: I think the forty-fifth exception, or the one directed to his Honor’s refusal to hear and consider the defendants’ motion for a new trial, based upon the alleged misconduct of the jury, is fatal, and should he held for reversible error. I have no desire to controvert the well settled principle that ordinarily the disposition of such matters is reposed in the sound discretion of the trial court; but, to my mind, the instant case does not come within the rule stated. The exception presents a legal rather than a discretionary ruling, and it comes to us as a question of law; otherwise I should be content.

This proceeding was instituted upon a petition for partition, and subsequently converted into an action of ejection. After the issues had been given to the jury for their consideration, they were permitted to go upon the lands and to view the locus in quo. This was done without permission of the court or consent of counsel. “One or two of the jurors went into the yard and asked a woman how far the lands went back, and she informed them that the land went back to the fence on one side and to the hog-pen on the other. The lands had been recently plowed, and they were in clear view from the position the jury occupied.”

The officer in charge of the jury remarked in the presence of counsel for the defendants that the jury, while out walking, had gone, over the lands in controversy, but he said nothing about their having talked to the woman in the yard. This remark was made on Friday morning, just before the opening of court, approximately four hours before the *668jury returned its verdict, and was not called to tbe attention of tbe judge until after tbe verdict bad been received. During tbe major portion of tbis time, however, it should be said, counsel for defendants, as well as tbe court, were engaged in tbe trial of another cause. I now quote from tbe record:

> “Upon tbe foregoing finding of facts tbe court was of tbe opinion that tbe aforesaid conduct of tbe jury might have been prejudicial to tbe defendants and their cause, but refused and declined to set aside tbe verdict for reasons stated by tbe court as follows:

> “ 'That both of counsel for defendant remained quiet when tbe court finds that they should and could have been diligent and called tbe court’s attention to tbe matter, and having failed to call the court’s attention to tbe matter and waiting until tbe jury bad returned their verdict, and having failed to make their motion for a mistrial in apt time, tbe court concludes, and so finds, that they are now estopped to impeach tbe verdict of tbe jury upon tbe facts presented to and as found by tbe court, and tbe motion is denied.’ ”

It should be remembered that the most hurtful part of the conduct of tbe jury, to wit, tbe conversation they bad with tbe woman on tbe place, was not known to counsel prior to the' rendition of the verdict. Tbis fact seems to have been overlooked by his Honor below, and herein lies tbe. error. It will be readily conceded that if tbe matter were subject to correction, and bad been known, and counsel remained silent when it was their duty to speak, they ought not to be beard now. But if tbe defendants were entitled to a venire de novo, as a matter of right, why should their motion be denied simply because it is made for a new trial rather than for a mistrial? S. v. Miller, 18 N. C., 500. These subtle distinctions and technicalities were considered material at tbe common law, but not so with us under tbe Code of Civil Procedure. To deny a legal right merely for tbe observance of form is to forsake tbe substance for tbe shadow. Indeed, this would be keeping tbe spirit of tbe new and more liberal practice to tbe ear and breaking it to tbe hope.

Speaking to tbis question in S. v. Tilghman, 33 N. C., 553, Pearson, J., says: “We take tbis plain position: If tbe circumstances are such as merely puts suspicion on tbe verdict by showing, not that there was, but that there might have been undue influence brought to bear on tbe jury, because there was opportunity and a chance for it, it is a matter within the discretion of tbe presiding judge. But if the fact be that undue influence was brought to bear on tbe jury, as if they were fed at tbe charge of the prosecutor or tbe prisoner, or if they be solicited and advised bow their verdict should be, or if they have other evidence than that which was offered on the trial (italics mine), in all such cases *669there bas, in contemplation of lawj been no trial; and this Court, as a matter of law, will direct a trial to be bad.”

Time forbids a more extended investigation, but tbe foregoing will suffice to indicate tbe outline and basis for tbe reasons wbicb constrain me to dissent from tbe otherwise clear and forceful opinion of tbe Court.