{ "id": 11277422, "name": "A. R. MASON by next friend v. RACHEL McCORMICK and others", "name_abbreviation": "Mason v. McCormick", "decision_date": "1881-10", "docket_number": "", "first_page": "226", "last_page": "229", "citations": [ { "type": "official", "cite": "85 N.C. 226" } ], "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": "83 N. C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278412 ], "opinion_index": -1, "case_paths": [ "/nc/83/0500-01" ] }, { "cite": "4 Dev. & Bat. 124", "category": "reporters:state", "reporter": "Dev. & Bat.", "opinion_index": -1 }, { "cite": "81 N. C-. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685689 ], "opinion_index": -1, "case_paths": [ "/nc/81/0114-01" ] }, { "cite": "63 N. C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276328 ], "opinion_index": -1, "case_paths": [ "/nc/63/0048-01" ] }, { "cite": "2 Dev. & Bat. 241", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 11275231 ], "opinion_index": -1, "case_paths": [ "/nc/19/0241-01" ] }, { "cite": "8 Dev. 340", "category": "reporters:state", "reporter": "Dev.", "opinion_index": -1 }, { "cite": "4 Dev. & Bat., 24", "category": "reporters:state", "reporter": "Dev. & Bat.", "opinion_index": 0 }, { "cite": "1 Car. L. Rep., 514", "category": "reporters:state", "reporter": "Car. L. Rep.", "case_ids": [ 12135685 ], "opinion_index": 0, "case_paths": [ "/nc/4/0514-01" ] }, { "cite": "83 N. C. 500", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11278412 ], "opinion_index": 0, "case_paths": [ "/nc/83/0500-01" ] }, { "cite": "81 N. C-. 114", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8685689 ], "opinion_index": 0, "case_paths": [ "/nc/81/0114-01" ] }, { "cite": "63 N. C. 48", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11276328 ], "opinion_index": 0, "case_paths": [ "/nc/63/0048-01" ] }, { "cite": "2 Dev. & Bat. 241", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 11275231 ], "opinion_index": 0, "case_paths": [ "/nc/19/0241-01" ] } ], "analysis": { "cardinality": 427, "char_count": 6674, "ocr_confidence": 0.444, "pagerank": { "raw": 3.1067092308169805e-07, "percentile": 0.8597055272334411 }, "sha256": "bc4564000a323504ee36586a80d82b69b24d55b211184d6fa02916d588348105", "simhash": "1:a0716c06a2408eca", "word_count": 1161 }, "last_updated": "2023-07-14T15:20:18.719028+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "A. R. MASON by next friend v. RACHEL McCORMICK and others." ], "opinions": [ { "text": "Smith, C. J.\nThe plaintiff claims the tract of land represented in the surveyor\u2019s map within the yellow lines designated by the figures 1, 2, 3, 4, 5, under a grant from the State issued November 22nd, 1872, for one hundred and-ninety-seven acres. The defendants derive title under a grant issued November 18th, 1873, to George Elliott for four hundred and seventy acres, and which they allege covers the place in dispute. The controversy is as to the loca-lion of the land 'described in the Elliot .grant and rectangular in form.\nThe plaintiff contends that its first corner 'is at 42 in Mc-Neill\u2019s boundary, and is comprehended in the red lines 42, 46, 47, 52, while the defendants insist that the beginning is in McNeill\u2019s line further east at A, and the, tract is included in the diagram A, B, C, D.\nIf the defendants\u2019 contention be sustained, they are not tresspassing upon the plaintiff\u2019s land j if the plaintiff\u2019s be sustained, they are, and the plaintiff is entitled to recover.\nTwo issues were submitted to the jury, in answer to which they find that the plaintiff is the owner of all the land mem tioned in his complaint, except the part included in the triangle 2, 48, 52, and that Duncan McCormick, the defendants\u2019 testator, was at the commencement of the action in possession of all the plaintiff\u2019s land, except the triangular figure represented by the marks 1, 2, L.\nThe third issue was as to damages, and they are assessed at $200.\nThere are two exceptions to be considered in the appeal.\n1. The admission of the declarations of John McNeill as to the position of the first corner of the Elliott grant on his line.\n2. The reception of the record of a former suit of the defendants against the plaintiff and others for an injunction and to stay trespasses.\nFirst-: The objection to the evidence of the declarations of the deceased owner of the McNeill tract, is based upon his supposed interest in establishing his own boundaries by this location of angle of an adjoining tract. The objection is not tenable. Both parties to the action place that corner in the declarant\u2019s line, and to him it is entirely immaterial whether it is at one or the other point.\nThe declaration, moreover, is not used to ascertain and fix the limits of the declarant\u2019s own land, but the corner of an adjoining tract to determine its location, and the evidence is not rendered incompetent because that corner is coincident with one of his own boundaries.\nSuch evidence is not admitted where the declaration comes from \u201c the owner of the land, however ancient, in behalf of those claiming the same land under a different title,\u201d as wa3 said by Chief Justice Henderson in Sasser v. Herring, 3 Dev.; 340. To this effect are all the cases, Hartzog v. Hubbard, 2 Dev. & Bat., 241; Dancy v. Sugg, Ibid, 515; Hedrick v. Gobble, 63 N. C., 48; Caldwell v. Neely, 81 N. C., 114; Smith v. Walker, 1 Car. L. Rep., 514,\nSecond; The ground of the objection to the introduction of the record of the former suit in which the present defendants were plaintiffs and the present plaintiff in association with others, was a defendant, is not set out, and we are unable to see its force. That action was prosecuted on behalf of the defendants in this by one J. F. Shaw, their agent, whose own oath verified the complaint, and upon whose separate affidavit an injunction restraining the alleged trespasses was obtained to continue till the hearing!\nThe affidavit affirms that Duncan McCormick died in the year 1873 in possession of the land previously mentioned, and that the plaintiffs, (the present defendants) have been in possession ever since, up to January 8th, 1874, the date of its verification. The admissions of this accredited agent in prosecuting the suit and in protecting the interests of the. parties he represented are clearly competent upon the issue as to the defendants' occupation of the disputed land.\nAn affidavit made fey a party for a certiorari may be read in evidence against him to show any facts which are provable by mere admissions or representations, Mushatt v. Moore, 4 Dev. & Bat., 24, and in like manner when made by an agent \u201c whose testimony has been used,\u201d in the language of the court in Ryan v. McGehee, 83 N. C., 500, \u201c to indorse certain actions on the part of the court for the benefit of the defendant, and to which he has thereby given credit.\u201d A record may be admitted in evidence in favor of a stranger against one of the parties, not''as a judgment conclusively establishing the fact, but as a deliberate declaration or admission of such fact. \u201cIt is therefore,\u201d says .Greenleae, \u201cto be treated according to the principles governing admissions, to -which class of evidence it properly -belongs.\u201d 1 Greenl. Evi., \u00a7527 a. The ruling is clearly within these references, and the exception must be overruled.\nThe transcript in this\u2019 appeal is needlessly voluminous, attended with much costto theparty who may have it to pay, and in the examination, greatly increasing the labors of the \u25a0court. The rule which charges the party in fault with the costs of copying these parts of the record, not necessary to show a cause properly -constituted in court, and having no bearing upon the rulings, the -subject of exceptions, will be enforced.\nIt must be declared that there is no error and the judgment is affirm eel\nNo error. Affirmed..", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "\u2022Mr. N. W. Ray, for plaintiff.", "\u25a0Mr. W. A. Guthrie, for defendants." ], "corrections": "", "head_matter": "A. R. MASON by next friend v. RACHEL McCORMICK and others.\nBoundary^-Declaration of Deceased Owner \u2014 \u25a0Evidence\u2014Record of Former Action.\n1. The declarations of a dec\u00b0ased owner of land, locating an angle of an adjoining tract, is admissible, though the corner so- established is coincident with one of his own boundaries, where both parties to the action place .the corner in the declarant\u2019s line and it is immaterial to him at what point it is fixed.\n2.' Upon an issue as to the defendant\u2019s occupation of land in dispute, it is proper to introduce the record of a former suit by the defendant against the plaintiff and others for an'injunction and to stay trespass, for the purpose of showing, by an affidavit made in that cause in behalf of the plaintiff therein, a deliberate admission of such possession.\n'(Sasser v. Herring, 8 Dev. 340; Hartzog v. Hubbard, 2 Dev. & Bat. 241; Dancy v. Sugg, lb. 815 ; Hedrick v. Gobble, 63 N. C. 48 ; Caldwell ~v. -Neely, 81 N. C-. 114; Smith v, Walker, 1 Car. L. R. 514; Mushatt v. Moore, 4 Dev. & Bat. 124-; Byan v. McGehee, 83 N. C. 500, cited and approved.)\n\u25a0Civil Action to recover land tried at Spring Term, 1881, -of Cumberland Superior Court, before Gudger, J.\nVerdict and judgment for plaintiff, appeal by defendants.\n\u2022Mr. N. W. Ray, for plaintiff.\n\u25a0Mr. W. A. Guthrie, for defendants." }, "file_name": "0226-01", "first_page_order": 238, "last_page_order": 241 }