{ "id": 8615943, "name": "W. VANCE BROWN et al. v. T. AARON BUCHANAN", "name_abbreviation": "Brown v. Buchanan", "decision_date": "1927-12-14", "docket_number": "", "first_page": "675", "last_page": "679", "citations": [ { "type": "official", "cite": "194 N.C. 675" } ], "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": "140 S. E., 21", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "156 N. C., 59", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11270150 ], "opinion_index": 0, "case_paths": [ "/nc/156/0059-01" ] }, { "cite": "184 N. C., 44", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269022 ], "opinion_index": 0, "case_paths": [ "/nc/184/0044-01" ] }, { "cite": "95 N. C., 309", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11273995 ], "opinion_index": 0, "case_paths": [ "/nc/95/0309-01" ] }, { "cite": "138 N. C., 504", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11269810 ], "opinion_index": 0, "case_paths": [ "/nc/138/0504-01" ] }, { "cite": "165 N. C., 7", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656826 ], "weight": 2, "opinion_index": 0, "case_paths": [ "/nc/165/0007-01" ] }, { "cite": "186 N. C., 215", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8653285 ], "opinion_index": 0, "case_paths": [ "/nc/186/0215-01" ] }, { "cite": "191 N. C., 137", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628008 ], "opinion_index": 0, "case_paths": [ "/nc/191/0137-01" ] }, { "cite": "188 N. C., 532", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8654376 ], "opinion_index": 0, "case_paths": [ "/nc/188/0532-01" ] } ], "analysis": { "cardinality": 536, "char_count": 10688, "ocr_confidence": 0.477, "pagerank": { "raw": 2.2090693170472132e-07, "percentile": 0.7762813584884679 }, "sha256": "3c9df838be14f542d626c81390c4f0d1de1224a8e606cce304becb13a4f3505e", "simhash": "1:82f0ac38cbc5a6b7", "word_count": 1840 }, "last_updated": "2023-07-14T17:26:29.544042+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. VANCE BROWN et al. v. T. AARON BUCHANAN." ], "opinions": [ { "text": "CoNnoe, J.\nAt July Term, 1924, this action, then pending in the Superior Court of Mitchell County, was referred by the judge presiding for trial. 0. S., 573, subsection 3. The order of reference was made, notwithstanding the objection of defendant, who duly excepted thereto. Defendant was, therefore, not deprived of his constitutional right to a trial by jury of the issues of fact arising upon the pleadings. Lumber Co. v. Pemberton, 188 N. C., 532. When the report of the referee, to which exceptions had been duly filed by the defendant, came on/or hearing, defendant tendered issues to be submitted to the jury upon such trial.\nAt the trial plaintiffs offered in evidence State Grant No. 2148, to William Cathcart, dated 20 July, 1796, and duly recorded in Mitchell County. Plaintiffs claimed under this grant. A map, made under an order of the court, and showing the contentions of the parties, was also introduced as evidence.\nTbe following agreement was thereupon entered into by and between counsel representing plaintiffs and defendant, and made a part of the record as a stipulation for the trial of this action:\n\u201cIt is agreed that if plaintiffs shall establish, by the greater weight of the evidence, the beginning corner of the grant to William Cathcart, No. 2148, at the point marked \u2018walnut\u2019 near the mouth of Gouges Creek, then it is admitted that the black line, A, B, C, D, and F, is the correct location of the line claimed .by plaintiffs under Grant No. 2148, and also that the land described in the complaint is included in the boundary of said grant, and that, in such event, the plaintiffs are the owners of such interest as passed by said grant; and it is further admitted that Grant No. 2148 is known as the \u2018Brown Speculation 99,000-acre grant\u2019; and it is admitted that if the plaintiffs fail to establish their beginning corner as just stated, or if the beginning corner shall be established at the place marked \u2018walnut\u2019 on the court map, the junction of the red line with the river, then the grant under which the plaintiffs claim does not cover the land in controversy.\u201d\nThe answer to the issue submitted to the jury was thus made to depend upon the location of the beginning point in the description of the land contained in the Cathcart Grant.\nPlaintiffs offered evidence tending to show that said beginning corner is at the mouth of Gouges Creek, at the point marked \u201cwalnut\u201d on the map; defendant offered evidence tending to contradict plaintiffs\u2019 evidence and to show that said beginning corner is at the point marked \u201cwalnut, 3 old corners,\u201d on the map.\nE. L. Wiseman, one of the court surveyors, on his cross-examination by plaintiffs, as a witness for defendant, testified that \u201cold man Sheriff Wiseman\u201d told him, while on the survey, that the corner of the grant was at the mouth of Gouges Creek, and that some said it was at one place and some said that it was at another. On his redirect examination this witness was asked the following questions:\n\u201cQ. Who told you that the line was over on the other ridge? A. Mr. Filmore Eose and a number of fellows there in the mines.\n\u201cQ. Who else, do you recollect? A. Mr. John English, the son of Isaac English, and a brother of Mrs. Wiseman, who was on the stand this morning.\n\u201cQ. If the speculation line ran as they contend, or as the plaintiffs now contend, were they mining inside the speculation line? A. They were right on the line. They had mined above it and below it, and all through there. They stopped me and I went out.\n\u201cQ. Who did you hear say anything about the oaks on the Bald? A. I have heard it rumored that was the corner of the speculation line.\n\u201cQ. Is there any general reputation in that community as to the location of the speculation line on the Balds? Under such reputation, where is the location of the speculation line with relation to the Big Bald, on the Little Bald? A. On the west side of the Big Bald, between the Balds, but more on the west side of the Big Bald.\u201d\nThe witness further testified that he knew of no one, now dead, who had ever made statements to him in regard to the location of the beginning corner, called for in the grant.\nPlaintiffs\u2019 assignments of error based upon exceptions, noted in aj>t time, to the foregoing questions and answers, must be sustained.\nDeclarations with respect to the location of lines and corners, or with respect to general reputation as to such location when offered in evidence, are \u201chearsay,\u201d and as such are inadmissible upon an issue involving such location, unless brought clearly within the exceptions to the rule excluding \u201chearsay\u201d as evidence.\nIn Pace v. McAden, 191 N. C., 137, Adams, J., says: \u201cThe requirer ments for the admission of unsworn declarations are that the declaration be made ante litem motam, that the declarant be disinterested, when it is made, and that he be dead, when it is offered in evidence.\u201d Tripp v. Little, 186 N. C., 215; Sullivan v. Blount, 165 N. C., 7; Hemphill v. Hemphill, 138 N. C., 504. The grounds upon which this exception to the rule excluding hearsay as evidence is based, are stated and discussed by Merrimon, J., in Bethea v. Byrd, 95 N. C., 309, which has been frequently cited and approved by this Court.\nIn Hoge v. Lee, 184 N. C., 44, Adams, J., says: \u201cIn this State both hearsay evidence and common reputation, subject to certain restrictions, are admissible on questions of private boundary, but common reputation should have its origin at a time comparatively remote, always ante litem motam, and should attach itself to some monument of boundary or natural object, or be fortified by evidence of occupation and acquiescence tending to give the land some fixed and definite location.\u201d This principle is also stated by Allen, J., in Sullivan v. Blount, 165 N. C., 7, in the following words: \u201cIt is equally well-settled that evidence of common or general reputation is competent in the location of private boundary, if (1) the reputation had its origin at a time comparatively remote, and (2) existed before the controversy, and (3) attached itself to some monument of boundary, or natural object, or is supported by evidence of occupation and acquiescence tending to give the land some fixed or definite location.\u201d\nIt was error to admit as evidence the testimony of the witness Wise-man with respect to the unsworn declarations of persons as to the location of the corner in controversy, or as to general reputation of lines and boundaries, tending to locate said corner, in the absence of evidence establishing tbe facts upon which such testimony was admissible under the exceptions to the rule excluding such testimony. In view of the stipulation between counsel, this error was especially prejudicial, and entitles plaintiffs to a new trial.\nWith respect to the remaining assignment of error appearing in the record, based upon plaintiff\u2019s exception to the action of the court, in permitting the jury to take the certified copy of the warrant of survey, with the map attached, into the jury room, and to retain same while engaged in their deliberations, it is sufficient .to cite Nicholson v. Lumber Co., 156 N. C., 59. In the opinion in that case, Holce, J., says: \u201cWhile we uphold the action of the court on the question suggested, the plaintiff is entitled to a new trial by reason of another exception duly entered, for that the court, over plaintiff\u2019s objection, allowed the jury to take this plat and certificate to their room and inspect the same in their deliberations. This is contrary to our practice and has been condemned in several decisions of this Court.\u201d See eases cited.\nOur decision upon the appeal in Gooding v. Pope, ante, 404, 140 S. E., 21, is not an authority upon the question here presented. In that case the papers sent by the court to the jury room, over defendant\u2019s objection, and upon the request of the jury, were admissible in evidence under the statute, C. S., 1784. This statute was enacted to change the rule at common law, theretofore followed in this State, with respect to the admission of writings for the purpose of comparing hand-writings. The distinction between that case and the instant case is, we think, apparent. Upon the authority of Nicholson v. Lamber Co., supra, plaintiffs\u2019 assignment of error with respect to the sending of the certificate and map to the jury room is sustained. . Plaintiffs are entitled to a\nNew trial.", "type": "majority", "author": "CoNnoe, J." } ], "attorneys": [ "Jo%n W. Ragland, Lamberi & Lambert and Merrimon, Adams & Adams for plaintiffs.", "McBee & Berry and Pless, Winborne, Pless & Proctor for defendant." ], "corrections": "", "head_matter": "W. VANCE BROWN et al. v. T. AARON BUCHANAN.\n(Filed 14 December, 1927.)\n1. Reference \u2014 Objections and Exceptions \u2014 Issues\u2014Trial by Jury.\nA party duly and aptly excepting to an order of reference, and also to tbe admissions of evidence before tbe referee, and submitting issues, secures bis right thereby to a trial by jury upon tbe issues presented by him.\n2. Evidence \u2014 Boundaries\u2014Common Reputation \u2014 Hearsay.\nWhere it is agreed by the parties tbat the establishing of a beginning point should control the right of the plaintiff to mine upon the lands in dispute, the testimony of a surveyor to establish the' true location of this point, based upon declarations of common reputation, is admissible as hearsay, unless in accordance with the requisites that they existed before the trial, had their origin at a time comparatively remote, were made ante litem motam, attached to some monument of boundary or natural object, or fortified by evidence of occupation and acquiescence tending to give the land some definite and fixed location.\n3. Jury \u2014 Evidence\u2014Appeal and Error \u2014 Reversal.\nWhere the rights of the parties to the action are made to depend upon the true location of a boundary line of lands, it is reversible error for the trial judge, without consent of the appellant, to permit the jury to take into the jury room with them, to aid in their deliberations of the issue, certain relevant maps, etc., that had been introduced in evidence. Nicholson v. Lumber Go., 156 N. 0., 59, cited and approved; GooWi/ng v. Pope, ante, 404, as to comparison of handwriting cited and distinguished. C. S., 1784, not applying.\nAppeal .by plaintiffs from Moore, J., at July Term, 1927, of Mitchell.\nNew trial.\nAction involving title to mineral interests in a tract of land, situate in Mitchell County, and described in the complaint.\nOnly one issue was submitted to the jury. It was answered as follows:\n\u201cAre the plaintiffs in the above-entitled action the owners and entitled to the possession of the mineral interests in and to the boundary of land described in the complaint? Answer: No.\u201d\nFrom judgment on the verdict plaintiffs appealed to the Supreme Court.\nJo%n W. Ragland, Lamberi & Lambert and Merrimon, Adams & Adams for plaintiffs.\nMcBee & Berry and Pless, Winborne, Pless & Proctor for defendant." }, "file_name": "0675-01", "first_page_order": 743, "last_page_order": 747 }