{ "id": 8616219, "name": "C. J. SPEARS and LEONARD E. SPEARS v. PEYTON RANDOLPH", "name_abbreviation": "Spears v. Randolph", "decision_date": "1955-03-23", "docket_number": "", "first_page": "659", "last_page": "665", "citations": [ { "type": "official", "cite": "241 N.C. 659" } ], "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": "84 S.E. 2d 268", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "241 N.C. 17", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8600157 ], "opinion_index": 0, "case_paths": [ "/nc/241/0017-01" ] }, { "cite": "69 S.E. 422", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "153 N.C. 434", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272863 ], "opinion_index": 0, "case_paths": [ "/nc/153/0434-01" ] }, { "cite": "80 S.E. 892", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "165 N.C. 7", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8656826 ], "opinion_index": 0, "case_paths": [ "/nc/165/0007-01" ] }, { "cite": "18 S.E. 52", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "113 N.C. 55", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8652255 ], "opinion_index": 0, "case_paths": [ "/nc/113/0055-01" ] }, { "cite": "93 N.C. 141", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11272878 ], "opinion_index": 0, "case_paths": [ "/nc/93/0141-01" ] }, { "cite": "39 S.E. 2d 366", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "226 N.C. 485", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8621504 ], "opinion_index": 0, "case_paths": [ "/nc/226/0485-01" ] }, { "cite": "16 S.E. 2d 466", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "220 N.C. 41", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11298838 ], "opinion_index": 0, "case_paths": [ "/nc/220/0041-01" ] }, { "cite": "184 S.E. 535", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "209 N.C. 615", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 2221534 ], "opinion_index": 0, "case_paths": [ "/nc/209/0615-01" ] }, { "cite": "145 S.E. 781", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "196 N.C. 395", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8627166 ], "opinion_index": 0, "case_paths": [ "/nc/196/0395-01" ] }, { "cite": "83 S.E. 2d 785", "category": "reporters:state_regional", "reporter": "S.E.2d", "opinion_index": 0 }, { "cite": "240 N.C. 680", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8609216 ], "opinion_index": 0, "case_paths": [ "/nc/240/0680-01" ] }, { "cite": "97 S.E. 626", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "176 N.C. 640", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8657427 ], "opinion_index": 0, "case_paths": [ "/nc/176/0640-01" ] }, { "cite": "141 S.E. 580", "category": "reporters:state_regional", "reporter": "S.E.", "opinion_index": 0 }, { "cite": "195 N.C. 155", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8628058 ], "opinion_index": 0, "case_paths": [ "/nc/195/0155-01" ] }, { "cite": "36 L.R.A. (N.S.) 162", "category": "reporters:federal", "reporter": "L.R.A.N.S.", "opinion_index": 0 }, { "cite": "12 S.E. 86", "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" ] } ], "analysis": { "cardinality": 671, "char_count": 17607, "ocr_confidence": 0.442, "pagerank": { "raw": 1.478941591806364e-07, "percentile": 0.6607367842681175 }, "sha256": "d31a14543709e9f8bcd4b4fdaad67ccee1ce83c93de9c85b8af150b7c18f60ce", "simhash": "1:a615a2e032f1d312", "word_count": 3045 }, "last_updated": "2023-07-14T21:30:40.140494+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [ "Barnhill, C. J., and DeviN, J., took no part in the consideration or decision of this ease." ], "parties": [ "C. J. SPEARS and LEONARD E. SPEARS v. PEYTON RANDOLPH." ], "opinions": [ { "text": "Parker, J.\nThe plaintiffs discuss their assignments of error under three heads in their brief. In all of these they contend that the Trial Court erred in the admission of evidence.\nUnder their first head in their brief plaintiffs group, and assign as error their Exceptions 1, 2, 3, 4, 22, 23, 24 and 25, contending that the court erred in admitting in evidence a map of the Jennie B. Hunter Estate, and testimony based on the map, all over their objections, and assign three reasons for their contention: First, the map was not identified as being part of tbe records in the Ofiice of the Clerk of the Superior Court of Halifax County. Second, the map is not self-proving and the defendant failed to offer evidence that it was made at the instance of the owner of the land at the time it purports to have been made, or that it has been accepted or recognized by the owner. Third, the defendant failed to offer evidence that the map was a true representation of plaintiffs\u2019 land.\nThe plaintiffs offered in evidence the description of their land from their Complaint, which reads in part as follows: \u201cIt being a paid of Tract No. 6 allotted to the late Dr. Norman C. Hunter in that Special Proceeding entitled \u2018In the Matter of Thomas B. Hunter, Walker F. Hunter, Dr. Norman C. Hunter, Misses Bessie and Janie R. Hunter, Ex Parte,\u2019 said proceeding recorded in Special Proceeding Book 9, at page 149, in the office of the Clerk of the Superior Court for Halifax County; said tract or parcel of land later devised to Carrie J. Hunter by the Will of her husband, the late Dr. Norman C. Hunter, said Will on record in Will Book 13, at page 162, in the office of the Clerk of the Superior Court for Halifax County.\u201d\nThis description from the Complaint contains this further language: \u201cThe calls in the line running with the meanders of Pishing Creek, the calls in the line running from Pishing Creek to the corner of Thomas Whitaker property and the calls in the line running from the Thomas Whitaker property to the Atlantic Coast Line Railroad were taken from a map prepared by A. M. Atkinson during November 1914, said map to be found filed with the papers of that Special Proceeding entitled \u2018In the Matter of Thomas B. Hunter, Walker P. Hunter, Dr. Norman C. Hunter, Misses Bessie and Janie R. Hunter, Ex Parte,\u2019 in the office of the Clerk of the Superior Court for Halifax County.\u201d\nThe map introduced in evidence by the defendant to which plaintiffs objected, is thus described in the Record: \u201cDEFENDANT Oeeebs in evidence Plat Book 2, page 22 of the Clerk of the Superior Court of Halifax County, Map of Jennie B. Hunter Estate, with a legend thereon reading as follows: \u2018Halifax County near Enfield, N. 0. survey by A. M. Atkinson, November 1914, signed Commissioners B\u2019. D. Mann, P. C. Pittman and J. H. Sherrod, Docketed in Special Proceedings Yolume 9, page 149. Marked Defendant\u2019s Exhibit 1.\u201d\nIt would seem that the map introduced in evidence by the defendant is the same map referred to in plaintiffs\u2019 Complaint. Defendant\u2019s map of Jennie B. Hunter Estate was prepared by A. M. Atkinson in November 1914, and docketed in Special Proceedings Yolume 9, page 149. Plaintiffs\u2019 Complaint describes their land as \u201cbeing a part of tract No. 6 allotted to the late Dr. Norman 0. Hunter in that Special Proceeding entitled \u2018In the Matter of Thomas B. Hunter, Walker P. Hunter, Dr. Norman 0. Hunter . . . Janie R. Hunter, Ex Parte,\u2019 said Proceeding recorded in Special Proceeding Boob 9, at page 149 . . And further on the Complaint refers to \u201ca map prepared by A. M. Atkinson during November 1914, said map to be found filed with the papers of that Special Proceeding entitled \u2018In the Matter of Thomas B. Hunter, . . . Janie R. Hunter, Ex Parte\u2019 in the office of the Clerk of the Superior Court for Halifax County.\u201d\nThe description in the Complaint of plaintiffs\u2019 land is that it is a part of tract No. 6 of the division of the Hunter land, and refers to the Atkinson map filed in the Special Proceeding in the office of the Clerk of the Superior Court in Halifax County. Jake Shearin, a registered engineer and witness for the plaintiffs, testified on cross-examination: \u201cYes, I also looked at this map of Record in Halifax in making my survey. I consulted this map. Lot No. 6 shown on this map is the same property owned by Mr. Spears.\u201d Then Shearin was asked: \u201cWould you read to the jury what that map shows the call to be ?\u201d Over the plaintiffs\u2019 objection and exception No. 1 the witness was permitted to answer.\nJulian Trailer, a registered engineer and witness for the plaintiffs, testified on cross-examination: \u201cYes, I checked this map on my survey, also ran this complete line out and then made an angle. Yes, there is one turn on that map. There are two turns in my map. Q. And the one you took from the record, isn\u2019t there? Objection. Overruled. Plaintiffs\u2019 Exception No. 2. A. There is two turns in here.\u201d\nIt appears to us that the evidence clearly shows that the map introduced in evidence by the defendant, over the plaintiffs\u2019 objection, was a part of the Records in the Office of the Clerk of the Superior Court of Halifax County.\nIt also seems from the Records referred to in the pleadings and from the evidence that Janie R. Hunter and Jennie B. Hunter are the same person. In addition, plaintiffs in objecting to* the admissibility of the map, make no intimation that they were different persons.\nThe Atkinson map> is referred to in plaintiffs\u2019 Complaint, was consulted by their witness Shearin, was checked by their witness Trailer, in their surveying the line contended for by plaintiffs, purports to be over 30 years old, seems to have been made at the instance of Janie R. Hunter and the others in the Ex Parte Proceeding, and accepted by her and them while owning the land as a true representation of Janie R. Hunter\u2019s land, was relevant to the inquiry, was produced from proper custody, and on its face was free from suspicion. It was admissible in evidence under the Ancient Documents Rule. Nicholson v. Eureka Lumber Co., 156 N.C. 59, 12 S.E. 86, 36 L.R.A. (N.S.) 162; Thompson v. Buchanan, 195 N.C. 155, 141 S.E. 580; 20 Am. Jur., Evidence, Secs. 932-934; Stansbury, N. C. Evidence, Sec. 196; 32 C.J.S., Evidence, Sec. 746.\nGates v. McCormick, 176 N.C. 640, 97 S.E. 626, relied upon, by plaintiffs is distinguishable because proper or natural custody was not shown.\nThe plaintiffs make no contention in their brief that any of the testimony based on this map was incompetent, except that the introduction of the map was error. There was no error in admitting the map in evidence, and in admitting the testimony based thereon, and Exceptions 1, 2, 3, 4, 22, 23, 24 and 25 are overruled.\nUnder their second head in their brief plaintiffs group, and assign as errors their Exceptions 5, 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, contending that the Trial Court erred in admitting evidence as to the general reputation of the beginning of the boundary line and of the boundary line between the lands of plaintiffs and defendant because the evidence did not show, as plaintiffs contend, that such reputation arose ante litem motam.\nUnder their third head in their brief plaintiffs group, and assign as errors their Exceptions 6, 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17 and 18, contending that the Trial Court erred \u201cin admitting testimony as to declarations made by a person deceased when he was the owner of defendant\u2019s land and testimony based upon such declarations.\u201d\nIt is elementary learning that an assignment of error must present a single question of law for consideration by an appellate court. As to when it is proper to group more than one exception under one assignment, see Dobias v. White, 240 N.C. 680, 83 S.E. 2d 785.\nSuch grouping of exceptions necessitates \u201ca voyage of discovery\u201d to ascertain which of the evidence admitted over objection and exception was of general reputation, and which of declarations, and would seem to approximate a broadside assignment.\nThis Court said in Peltz v. Burgess, 196 N.C. 395, 145 S.E. 781: \u201cWe have often held that common reputation, to be admissible, 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\nThe summons in this case was issued 16 September 1953, and served upon the defendant the next day. One of the plaintiffs testified, \u201cI have owned this land that is in contention since 1951.\u201d There is no evidence in the Record that there was any dispute over the boundary line before 1951.\nPlaintiffs\u2019 Exceptions 5, 6, 7, 8, 9, 10, 11, 12, 13, 14 and 15 appear in the testimony of the defendant Peyton Randolph, Sidney Randolph and Jack Whitehead. The evidence admitted over objections and these exceptions is substantially this: There has been in the community for some forty years or more a general reputation as to the boundary line between the land of plaintiffs and defendant \u2014 Sidney Randolph testified he was 51 years old and had known the general reputation of the boundary line since he was big enough to walk around \u2014 ; and that the general reputation is that the beginning of the line was a Hickory Tree that fell into Fishing Creek, and that a wire fence attached to the tree ran along the line.\nAfterwards without objection Henry Clay, Calhoun Braswell and Frank Whitehead gave substantially the same testimony as to the general reputation of the beginning of the boundary line and the line.\nThis general reputation seems to have arisen ante litem motam. Even if this evidence were incompetent, exceptions to its admission cannot be sustained, because it appears that testimony of like import was thereafter admitted without objection. Teseneer v. Mills Co., 209 N.C. 615, 184 S.E. 535; Edwards v. Junior Order, 220 N.C. 41, 16 S.E. 2d 466; Belhaven v. Hodges, 226 N.C. 485, 39 S.E. 2d 366.\nDuring the testimony of Sidney Randolph he said on direct examination he was familiar with the boundary line. Counsel for plaintiffs at that point was permitted to question him and the Record shows this:\n\u201cMr. Randolph, who told you what the dividing line was ?\n\u201cA. Well, it has been there ever since I can remember. Father and everybody around there knew that was the line.\n\u201cHe owned it at the time he told you?\n\u201cA. Yes.\nOBJECTION\n\u201cThe Court. I will permit him to say whether he knows the reputation but not what it is.\u201d\nAfterwards Sidney Randolph gave testimony as to the general reputation. The testimony of Sidney Randolph as to the boundary line was not what his father told him, but its general reputation.\nThe assignments of error based on exceptions 5 to 15, both inclusive, are overruled.\nJack Whitehead, a witness for defendant testified that he knew the general reputation as to the beginning point of the dividing line between the lands of plaintiffs and defendant, and had known it since he was 6 years old. He then testified as to the general reputation of the line. Whitehead was then asked by counsel for plaintiff, who was permitted to interrupt the direct examination: \u201cWho told you where that line was ? A. Mr. Paul Randolph and Mr. Walker Hunter. Mr. Hunter was interested in the lands? A. Yes.\u201d Motion to strike witness\u2019 testimony. Overruled. Plaintiffs\u2019 Exception 16. \u201cAnd Mr. Randolph, he owned it too? A. At that time he did, yes.\u201d Motion to strike witness\u2019 testimony. Overruled. Plaintiffs\u2019 Exception 17. On cross-examination this appears in tbe Record in narrative form, not in questions and answers: \u201cMr. Paul Randolph is one who told me what I have testified to about the dividing line,, the fence being the dividing line. I have had Mr. William Randolph tell me the same thing. I think Paul Randolph was the owner of the land at the time he made the statement. MotioN to Steiee witness\u2019 testimony \u2014 Overruled\u2014plaintiffs\u2019 ExceptioN 18.\u201d\nThere is no evidence in the Record that William Randolph had ever had any interest in defendant\u2019s land. It would seem that Walker Hunter owned adjoining land, but that Walker Hunter had never had any interest in the defendant\u2019s land.\nThe mere fact that a deceased declarant as to boundaries owns an adjoining tract of land does not necessarily make him interested, and render his declaration incompetent. Bethea v. Byrd, 93 N.C. 141; Lewis v. Lumber Co., 113 N.C. 55, 18 S.E. 52; Sullivan v. Blount, 165 N.C. 7, 80 S.E. 892. Declaration of a deceased owner of adjoining land as to where his corner was is incompetent, because he is interested. Chrisco v. Yow, 153 N.C. 434, 69 S.E. 422. Walker Hunter told Whitehead where the boundary line was between the land owned by plaintiffs and that owned by defendant. No interest of Hunter\u2019s is made to appear.\nPlaintiffs say in their brief: \u201cLikewise it was error to have allowed the witness Jack Whitehead to testify, \u2018Mr. Paul Randolph is one who told me what I have testified to about the dividing line, the fence being the dividing line\u2019 (Plaintiffs\u2019 Exception 18 (R p 25) when Paul Randolph was the owner of the defendant\u2019s land at the time he made the statement and therefore the other testimony given by Mr. Whitehead covered by plaintiffs\u2019 exceptions numbers 12, 13, 14, 15, 16 and 17 (R pp 23, 24) was inadmissible.\u201d\nWhat Paul Randolph told Jack Whitehead was brought out by plaintiffs\u2019 counsel. The source of Jack Whitehead\u2019s knowledge of the general reputation of the boundary line was not derived solely from Paul Randolph. Even conceding that what Paul Randolph told him was incompetent as a source of information as to general reputation, Jack Whitehead\u2019s testimony as to the general reputation should not have been stricken out, because of testimony of like import later, without objection, by Henry Clay, Calhoun Braswell and Frank Whitehead. Exceptions 16, 17 and 18 are overruled.\nThe burden is on the appellants not only to show error, but to show prejudicial error amounting to the denial of some substantial right. Billings v. Renegar, 241 N.C. 17, 84 S.E. 2d 268. This they have not done.\nNo error.\nBarnhill, C. J., and DeviN, J., took no part in the consideration or decision of this ease.", "type": "majority", "author": "Parker, J." } ], "attorneys": [ "George G. Green and Buxton Midyetie for Plaintiffs, Appellants.", "Johnson & Branch and Allsbrooh \u2022& Benton for Defendant, Appellee." ], "corrections": "", "head_matter": "C. J. SPEARS and LEONARD E. SPEARS v. PEYTON RANDOLPH.\n(Filed 23 March, 1955.)\n1. Boundaries \u00a7 5e\u2014\nWhere the complaint refers to a map on file in the office of the clerk of \u25a0the Superior Court of a county in a prior proceeding, and .the map is introduced in evidence from the plat'book of the clerk\u2019s office, with identification that it was the same map referred to in the complaint, and the map purports to he over 30 years old, it is competent in evidence under the Ancient Documents Rule, and may be used as a basis of testimony by the witness, proper custody of the map having been shown.\n2. Appeal and Error \u00a7 23\u2014\nAn assignment of error should present a single question of law for consideration by an appellate court.\n3. Boundaries \u00a7 5c\u2014\nCommon reputation, to be admissible, 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. Testimony in this case held substantially in accord with the rule, or at any rate, its admission was not prejudicial since testimony of like import was thereafter admitted without objection.\n4. Appeal and Error \u00a7 39e\u2014\nExceptions to testimony cannot be sustained when it appears that testimony of like import was thereafter admitted without objection.\n5. Boundaries \u00a7 5c\u2014\nThe witness\u2019 testimony in this case as to the boundaries held based on general reputation, and not what la particular person told the witness as to the boundaries.\n6. Boundaries1 \u00a7 5d\u2014\nThe mere fact that a deceased declarant owns an adjoining tract of land does not make him interested and render his declaration as to boundaries incompetent, but the adverse party must make his interest appear in order for an exception to the testimony to be sustained.\n7. Boundaries \u00a7 5c\u2014\nTestimony as to a boundary line based upon general reputation is not rendered incompetent because the witness, who had testified that he knew the general reputation, also testified that a predecessor in title, while owning the land, had told the witness the location of the line.\n8. Appeal and Error \u00a7 38\u2014\nThe burden is on appellants not only to show error, but to show preju-dioial error amounting to the denial of some substantial right.\nBarnhill, O. J., and Devin, J., took no part in the consideration or decision of this case.\nAppeal by petitioners from Hubbard, Special Judge, November Special Term 1954 of Halifax:.\nProcessioning proceeding to determine the true boundary line between the lands of the petitioners and respondent.\nThis proceeding was brought before the Clerk of the Superior Court, and upon denial of petitioners\u2019 title it was transferred to the Superior Court for trial. At the trial in the Superior Court the parties stipulated that neither denied the title of the other to the lands described in the petition and answer.\nOne issue was submitted to the jury: \u201cWhat is the true dividing line between the lands of the plaintiffs and the lands of the defendant ?\u201d The jury answered the issue, \u201cCD,\u201d which was the line as contended for by the defendant.\nFrom judgment on the verdict, the petitioners appealed, assigning error.\nGeorge G. Green and Buxton Midyetie for Plaintiffs, Appellants.\nJohnson & Branch and Allsbrooh \u2022& Benton for Defendant, Appellee." }, "file_name": "0659-01", "first_page_order": 697, "last_page_order": 703 }