{ "id": 8694602, "name": "W. B. FRY v. D. A. B. CURRIE and others", "name_abbreviation": "Fry v. Currie", "decision_date": "1884-10", "docket_number": "", "first_page": "436", "last_page": "444", "citations": [ { "type": "official", "cite": "91 N.C. 436" } ], "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": "1 Dev. & Bat., 594", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 8697096 ], "opinion_index": -1, "case_paths": [ "/nc/18/0594-01" ] }, { "cite": "3 Dev., 340", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8693833 ], "opinion_index": -1, "case_paths": [ "/nc/14/0340-01" ] }, { "cite": "85 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277422 ], "opinion_index": -1, "case_paths": [ "/nc/85/0226-01" ] }, { "cite": "6 Ired., 90", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 11274132 ], "opinion_index": -1, "case_paths": [ "/nc/28/0090-01" ] }, { "cite": "3 Dev., 353", "category": "reporters:state", "reporter": "Dev.", "opinion_index": -1 }, { "cite": "10 Ired., 466", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 1972722 ], "opinion_index": -1, "case_paths": [ "/nc/32/0466-01" ] }, { "cite": "3 Dev., 241", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8690264 ], "opinion_index": -1, "case_paths": [ "/nc/14/0241-01" ] }, { "cite": "85 N. C., 258", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277513 ], "opinion_index": 0, "case_paths": [ "/nc/85/0258-01" ] }, { "cite": "1 Dev. & Bat., 594", "category": "reporters:state", "reporter": "Dev. & Bat.", "case_ids": [ 8697096 ], "opinion_index": 0, "case_paths": [ "/nc/18/0594-01" ] }, { "cite": "3 Dev., 340", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8693833 ], "opinion_index": 0, "case_paths": [ "/nc/14/0340-01" ] }, { "cite": "85 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277422 ], "opinion_index": 0, "case_paths": [ "/nc/85/0226-01" ] }, { "cite": "6 Ired., 90", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 11274132 ], "opinion_index": 0, "case_paths": [ "/nc/28/0090-01" ] }, { "cite": "3 Dev., 353", "category": "reporters:state", "reporter": "Dev.", "opinion_index": 0 }, { "cite": "10 Ired., 466", "category": "reporters:state", "reporter": "Ired.", "case_ids": [ 1972722 ], "opinion_index": 0, "case_paths": [ "/nc/32/0466-01" ] }, { "cite": "3 Dev., 241", "category": "reporters:state", "reporter": "Dev.", "case_ids": [ 8690264 ], "opinion_index": 0, "case_paths": [ "/nc/14/0241-01" ] } ], "analysis": { "cardinality": 814, "char_count": 15834, "ocr_confidence": 0.531, "pagerank": { "raw": 4.711933797399526e-07, "percentile": 0.9289999146668396 }, "sha256": "13dc214c2689425e9c4106e1a1d27abd77b90c3690a048c360a5f227347a689e", "simhash": "1:8a34809fe39091c3", "word_count": 2786 }, "last_updated": "2023-07-14T20:07:30.396726+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "W. B. FRY v. D. A. B. CURRIE and others." ], "opinions": [ { "text": "Smith, C. J.\nThe plaintiff claims the land described in his complaint under a grant from the state issued for 100 acres to Thomas Bryant on November 30th, 1820, and successive conveyances from him and others, terminating in a deed made by the sheriff of Moore in the year 1841 to the plaintiff, pursuant to a sale under execution against the heirs at law of John Ray, the last bargainee in the series.\nThe defendant objected to the introduction of this deed as evidence, which objection has since been waived, to the sufficiency of its description of the land and to the efficacy of the judicial proceedings which preceded and led to the sale, in divesting the estate of the intestate, John Ray, therein.\nThe most prominent among the exceptions to the adverse rulings of the court in reference to the action against the heirs, of whom there were-two in number, all under age, to subject the descended lands to the debts of their ancestor, is to the sufficiency of the service of process upon their guardian ad litem, without actual service of the scire facias upon them.\nAfter the repeated adjudications against the force of a similar objection to a practice which has long prevailed and upon the validity of which so many titles depend, and especially, taken by one not interested in the judgment, and in a proceeding wholly collateral, the law must be considered settled upon the point. We are content to refer to but two cases. White v. Albertson, 3 Dev., 241; Matthews v. Joyce, 85 N. C., 258.\nNor is the sheriff\u2019s sale ineffectual by reason of any of the other defects in the proceedings pointed out in the other exceptions. Indeed they are unusually' full and specific. There is a judgment against the administrator ascertaining the debt; the value of the assets in his hands and its insufficiency to discharge the judgment by more than one hundred dollars, besides costs ; the appointment of a guardian ad litem to the heirs of the intestate designated by name; the award of the writ of scire facias against them; the service upon the guardian ad litem; the adjudication of sale; the issue of execution after twelve months delay, reciting the previous action of the court and directing the sheriff to\u2019sell \u201call lands which descended to the heirs of John Ray, deceased, situate in his . county, for the residue of the debt above the value of the ascertained assets and costs, which had been adjudged to Thomas Bryant for debt and $6.05. for costs and charges in said suit expended, wherefore Majory Ann Eliza and John Alex Ray, heirs at law of John Ray, deceased,.are liable as appears to us of record.\u201d\nThe sheriff made return to this execution and executed his deed to the plaintiff with full recitals of the action of the court and his own proceedings under the writ, conveying the tracts of land sold and describing them by metes and bounds.\nWe are unable to discover any defect in these proceedings, obstructing the transfer of the title to the intestate\u2019s lands which, at his death, vested in the said heirs, to the plaintiff who made the purchase.\nThe case of Raiford v. Peden, 10 Ired., 466, is not in conflict but rather supports this conclusion, nor are those of Bonner v. Tier, 3 Dev., 353, and Roberson v. Wollard, 6 Ired., 90, since the heirs are named in the execution.\n2. The appellant\u2019s next exception is to the admission in evidence of a deed from Alexander McIntosh to George Graham, made on August 22nd, 1821, as incompetent to aid in locating the land granted in the year before to Thomas Bryant, because it is of posterior date.\nThis exception was sustained, the court holding that it could not be used for that purpose and so charged the jury according to the appellant\u2019s prayer.\nWe cannot' see how an exception can lie to this ruling, made at the defendant\u2019s request and in most explicit terms. We must assume that the jury acted in accordance with this instruction,- and if it can be supposed they did not, the remedy must be sought, in the application' for a new trial addressed to the discretion of the presiding judge. We cannot entertain an assignment of error in that the jury may have been influenced in arriving at a verdict, by giving weight to evidence they were expressly directed not to consider, in fixing the boundaries of the Bryant grant.\nBut it is not so clear that the deed executed by McIntosh to Graham was not admissible to aid in fixing the beginning of the boundary of the Bryant tract which is, or is supposed to be by the calls of the grant, at \u201c McIntosh\u2019s corner.\u201d His deed is an assertion of ownership of the land defined in it and is his declaration of the locatian of its lines and corners, used by a contiguous proprietor to determine the place of a corner common to both. Would not his declarations made when alive, be competent, as hearsay, not to locate his own, but the boundary of an adjacent tract that calls for and touches it ? The evidence does not come from an interested party to subserve some purpose and to secure some advantage to himself, but it is a concession in disparagement of his claim to a wider boundary for his own land.\nIn Mason v. McCormick, 85 N. C., 226, where such declarations were received and held to be competent, it is said they are \u201c not used to ascertain and fix the limits of the defendant\u2019s own land, but the corner of an adjoining tract, to determine its location, and the evidence is not rendered inadmissible because that corner is coincident with one of his own boundaries.\u201d\nSuch declaration when found in deeds, stands very much upon the footing of an oral utterance to the same effect from one who is dead. Sasser v. Herring, 3 Dev., 340, and other cases cited in the opinion.\nBut it is not necessary to determine the point since the ruling was unfavorable to the plaintiff who does not complain, and the defendant cannot.\nIn order to cover the disputed land with an older title and displace the plaintiff\u2019s claim, the defendant exhibited a grant made on May 17th, 1795, to David Allison, and, to fix the location of the land it conveys, proved numerous delarations of old persons since deceased, as to the position of the beginning comer, and showed that its lines from that point run according to the defendant\u2019s contention would enclose the part in controversy.\nA copy of the grant is not found in the transcript but it is stated that it calls for the \u201c Lewis land,\u201d and the \u201c Black land,\u201d both of which adjoin.\nStarting at the corner understood to be designated by the evidence and marked 42 on the map, and running thence in conformity with the provisions of the grant, the surveyor says \u201c he did not think he made any real connection with the Lewis land or the Black line called for \u2014 Lewis line at 6 and the Black corner at 11,\u201d though he did not run the lines of either of those traets.\nThis dislocation of the Allison land from tracts which form part of its boundary throws some discredit upon the declarations relied on to locate its first corner; for if it be where they place it, the survey should not avoid but come up to the lines thus called for ; and that they do not afford evidence against the correctness of the location.' But to what extent this fact, assuming it to be a fact, impairs confidence in the statements of these aged men, as to the true position of the corner in space without the presence of a natural object to which they are annexed, it belongs to the jury alone to determine.\nThe defendant submitted several instructions to be given to the jury, of which we only notice such as were refused:\n1. If the jury believe that Kenneth Black and the other aged men pointed out the corner of the Allison grant as being at 42 or A, according to the testimony of the witness, Currie, then they must answer \u201c yes \u201d to the inquiry propounded in the 4th issue: \u2014 Does the Allison grant cover the land in dispute?\nThe instruction assumes the absolute truth of the location, if in fact the declarations were made and are correctly remembered and reported, and denies to the jury the right to judge of its credit and sufficiency to establish the position of the corner. It makes that which is evidence only, and not always most satisfactory evidence, proof of the fact which it tends to support, and not only places hearsay, words not spoken under oath, upon a higher plane than sworn testimony delivered with opportunities for cross-examination, but withholds fiom the jury an essential function to be exercised in the administration of justice, in passing upon the means of information, the accuracy of memory and the truthfulness of those who undertake to fix a corner in space without the sustaining presence of some natural object with which recollection may correct itself. In brief, the court is requested to tell the jury they must accept the location, as ascertained by these declarations and regard the declarations as entitled to absolute and unquestioning credit.\nIt was for the jury, not the court, to determine the value of the evidence and its force in proving the fact for which it was introduced, and there was here the repugnant fact, if the surveyor\u2019s impressions were correct, that the lines of two adjacent tracts which form part of the boundary of the Allison tract as described in the grant, are not reached by a running that makes that corner a starting point. It would have been a usurpation in the judge to deny to the jury the right to say what credit ought to be given to the declarations as tending to show its true position under the grant.\n2. After verdict the defendant moved for a new trial not only on the ground of the several overruled exceptions, set out in the record, but for the further reason because the jury\u2019s response to the issue in reference to the Allison land was against the evidence and without evidence.\nWe cannot precisely understand the force of this assigned ground for a venire de novo as a matter of right. The jury have not found any positive fact without evidence which would be an error in law. They have simply failed to find a fact upon the evidence introduced to prove it. How can the court control the jury and force them to give credit to testimony, without an invasion of their functions ? The result only shows that the declarations of 'the old men did not satisfy them that the corner was where these old men supposed it to be. The finding belongs exclusively to the jury and no court can coerce them to find a fact upon evidence which they disbelieve, however cogent and convincing it may appear to others. Ad questiones facti, non respondent judices; ad questiones legis, non respondent juratores, is a maxim necessary to be maintained in judicial administration.\nIn Noland v. McCracken, 1 Dev. & Bat., 594, the jury had been directed in language not very unlike the proposition now maintained for the appellant, that \u201c where a witness was heard by a jury, who was neither impeached, nor contradicted, whose story was credible, and in whose manner there was nothing to shake confidence, they were bound to believe him.\u201d This instruction was declared erroneous and GastoN, J., in his opinion says : \u201c They (the jurors) are the competent and exclusive judges whether human testimony be inconsistent with the operation of those common principles which regulate human conduct. If thus believing, they do in their consciences actually assent to it, there is no rule of law which compels them to yield to it an official faith. While the competency of witnesses and the relevancy of testimony are made the exclusive subjects of judicial cognizance, the credit of witnesses and the sufficiency of their testimony are as exclusively matters for the determina tion of the jury.\u201d\nThis is emphatically enforced in the statute which forbids a judge to \u201c give .an opinion whether a fact is fully or sufficiently proved, such matter being the true office and province of the jury.\u201d The Code, \u00a7 413, and numerous references under the section.\nIt has been urged that there was no evidence to support the plaintiff\u2019s location of the land described in the Bryant grant.\nIn answer to this objection it may be said that it was not made at the trial, and the adjudications are too numerous and uniform to need repetition, that error cannot be first assigned in this court for an omission in the trying judge to give a charge when not requested to give it.\nNor is this rule of practice at all modified by that prescribed in The Code, \u00a7 412, Par. 3, which declares:\n\u201c If there be error either in the refusal of the judge to grant a prayer for instructions, or in granting a prayer, or in his instructions generally, the same shall be deemed excepted to without the\u2019filing of any formal objections.\u201d\nIt is obvious that an omission to give a charge to which a party would have been entitled will not be a reviewable error unless requested and refused.\nAnd it is equally manifest that the expression \u201c in his instructions generally \u201d is meant to' embrace such instructions as involve an erroneous statement of the law. When-the judge undertakes to lay down the law he must lay it down correctly, that is, the legal proposition must be in itself correct.\nIt is becoming so common for counsel to criticise instructions, not for an inherent and apparent error, but for an alleged error in its relations to the evidence, that we deem it proper to announce that we can consider only exceptions made in the court below, and under the statute such as are included in its terms. It would do great injustice to the judge to have his rulings revised when no exception was taken at the time, or to have reversed on appeal instructions other than such as contain an erroneous proposition of law; and beyond this in our opinion it was not the intention of the general assembly to go in putting the enactment in its present form.\nUpon a calm review of the whole!] case we must declare there is no error in the record, and the judgment must be affirmed.\nNo error. Affirmed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Messrs. Mclver & Black, Guthrie and Murchison, for plaintiff.", "Messrs. John Manning and Hinsdale & Devereux, for defendants." ], "corrections": "", "head_matter": "W. B. FRY v. D. A. B. CURRIE and others.\nGuardian and Ward \u2014 Ejectment\u2014Verdict\u2014Evidence\u2014Judge\u2019s Charge.\n1. The law applicable to this ease did not require actual service of process upon infant defendants: it was sufficient, if served upon the guardian ad litem; and there is no defect in the proceedings resulting in a sale of the land of the infants.\n2. In ejectment, where it is alleged that the jury gave undue weight to evidence they were directed not to consider in fixing a disputed boundary, the complaining party must seek his remedy in a motion for a new trial addressed to the discretion of the presiding judge. An assignment of error upon such ground will not be entertained here. The.court intimate that in this case the excluded evidence (declaration of grantor in a deed) is competent in aid of location of boundary of a tract of land adjoining the grantor\u2019s.\n3. The surveyor\u2019s testimony and the declarations of the aged persons, since deceased, bearing upon the location, were properly left to the jury, who alone must determine the value of the evidence as tending to show the true position of the land in dispute. The ' court can not coerce them to find a fact upon evidence they dis- \u25a0' believe.. >\n, 4. An omission to give a charge to which a party would have been entitled is not error, unless the same was requested on the trial \u2022and refused. The Code, \u00a7 412, construed.\n(Whiter. Albertson, 3 Dev., 241; Matthews v. Joyce, 85 1ST. C., 258; Raifordr. Peden, 10 Ired., 466-;- Bonner v. Tier, 3 Dev., 353; Roberson v. Wollard, 6 Ired., 90; Mason v. McCormick, 85 N. C., 226; Sasser v. Herring, 3 Dev., 340; Woland v. McCracken, 1 Dev. & Bat., 594, cited and approved.)\nEjectment tried at Pall Term, 1883, of Moore Superior Court, before McKoy, J.\nDefendants appealed.\nMessrs. Mclver & Black, Guthrie and Murchison, for plaintiff.\nMessrs. John Manning and Hinsdale & Devereux, for defendants." }, "file_name": "0436-01", "first_page_order": 450, "last_page_order": 458 }