{ "id": 11273244, "name": "E. C. HALSTEAD et al. v. F. H. MULLEN et al.", "name_abbreviation": "Halstead v. Mullen", "decision_date": "1885-10", "docket_number": "", "first_page": "252", "last_page": "256", "citations": [ { "type": "official", "cite": "93 N.C. 252" } ], "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": "65 N. C., 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955267 ], "opinion_index": -1, "case_paths": [ "/nc/65/0430-01" ] }, { "cite": "78 N. C., 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688147 ], "opinion_index": -1, "case_paths": [ "/nc/78/0156-01" ] }, { "cite": "79 N. C., 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696507 ], "opinion_index": -1, "case_paths": [ "/nc/79/0546-01" ] }, { "cite": "91 N. C., 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694602 ], "opinion_index": -1, "case_paths": [ "/nc/91/0436-01" ] }, { "cite": "85 N. C., 236", "category": "reporters:state", "reporter": "N.C.", "opinion_index": -1 }, { "cite": "59 N. Y., 269", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 521462 ], "opinion_index": 0, "case_paths": [ "/ny/59/0269-01" ] }, { "cite": "18 N. Y., 515", "category": "reporters:state", "reporter": "N.Y.", "case_ids": [ 2021203 ], "opinion_index": 0, "case_paths": [ "/ny/18/0515-01" ] }, { "cite": "85 N. C., 226", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 11277422 ], "opinion_index": 0, "case_paths": [ "/nc/85/0226-01" ] }, { "cite": "65 N. C., 430", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 1955267 ], "opinion_index": 0, "case_paths": [ "/nc/65/0430-01" ] }, { "cite": "78 N. C., 156", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8688147 ], "opinion_index": 0, "case_paths": [ "/nc/78/0156-01" ] }, { "cite": "79 N. C., 546", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8696507 ], "opinion_index": 0, "case_paths": [ "/nc/79/0546-01" ] }, { "cite": "91 N. C., 436", "category": "reporters:state", "reporter": "N.C.", "case_ids": [ 8694602 ], "opinion_index": 0, "case_paths": [ "/nc/91/0436-01" ] } ], "analysis": { "cardinality": 548, "char_count": 9619, "ocr_confidence": 0.527, "pagerank": { "raw": 4.0350577045616425e-07, "percentile": 0.9071775999295711 }, "sha256": "86adc278ae1d24ae5d22b3d8b48ae86a98f7eb4bf9652fce6d89f45cbaad467e", "simhash": "1:3971beeb02e366e0", "word_count": 1686 }, "last_updated": "2023-07-14T16:31:05.515433+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "E. C. HALSTEAD et al. v. F. H. MULLEN et al." ], "opinions": [ { "text": "Smith, C. J.\nThe complaint alleges the plaintiffs to be the owners of the land, the boundaries whereof are given, the entry thereon of the defendants in June, 1882, and their cutting and removing the timber growing thereon, to their damage two thousand dollars. The defendants deny the plaintiffs\u2019 title, or that they have ever trespassed upon their land. The only issues submitted to the jury were as to the alleged trespasses on the plaintiffs\u2019 land, and by which of the defendants, if any, were they committed, and the extent of the damage done. The verdict is for the plaintiffs, designating by name all the defendants charged, and ascertaining the damages.\nUpon the trial, it appeared that' the lands of the plaintiffs and of the defendants were adjacent, and the controversy was confined to the question of the proper location of the dividing line, and whether the timber was on the plaintiffs\u2019 land and within their boundaries. To ascertain the position of the disputed line, it became necessary to locate one of the lines in the plaintiffs\u2019 deed, which describes it as running \u201c up to and along the Joab Overton line.\u201d A witness, who had been the slave of a former proprietor, under whom the plaintiffs claimed, testified, after objection made and overruled, that about forty*years ago his master directed him not to cut timber beyond Overton\u2019s line, and that Overton would show where the line was. That soon after Over-ton pointed out to witness the division line, the place of which the witness then testified to. It was in evidence that Overton was then in the actual possession of this land, and has been dead for many years. The jjfaintiffs\u2019 deed, upon this location, places the disputed land within its boundaries. The admissibility of the declarations of Overton is the only question presented for consideration in the record brought up on the defendants\u2019 appeal.\nThe inquiry does not call for an elaborate examination, since it is substantially answered in two cases adjudicated in this Court.\nIn Mason v. MoCormick, 85 N. C., 226, in answer to an objection to similar declarations of a deceased owner of an adjoining tract, the Court use this language: \u201cThe declaration, moreover, is not used to ascertain aud fix the limits of the declarant's 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.\u201d\nAnd more recently in Fry v. Currie, 91 N. C., 436, the deed of a deceased party was received as his declaration of the bound-, ary line of an adjacent tract, and the Court, overruling an objection to the competency of the evidence say: \u201cWould not his declaration, 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.\u201d\nThese cases dispose of the exception.\nThe appellant\u2019s counsel here, for the first time, move in arrest of judgment for alleged imperfections in the statement of the plaintiffs\u2019 cause of action, in that:\n(1). The complaint fails to allege that the plaintiffs had title before and at the time of the defendants\u2019 entry;\n(2). The entry is not charged to have been forcible or wrongful, and may have been permissive and lawful, so as not to be in conflict with any right in the plaintiffs.\nThe motion is based upon \u00a7242 of The Code, as construed in Meekins v. Tatum 79 N. C., 546; Williamson v. Canal Co., 78 N. C., 156, and other decided cases. The section applies to complaints that fail \u201cto state facts sufficient to constitute a cause of action,\u201d possessed by the plain,tiff\u2019 to be enforced against the defendant, or in other words, when it appears therefrom that the action will not lie. But imperfect statements, or omissions in the allegations, not of the substance of the cause of action, should be pointed out by demurrer, and not upon a fair rendering of the provisions of the prescribed pleading, and practice in connection with the section referred to, be allowed, after a trial upon the .merits and an appeal to this Court, to defeat the action altogether, when first taken in this Court. Such objections ought to be taken at the appropriate time and in the mode directed, or be deemed waived, leaving such as enter into the essence of the action, alone the basis of a motion to dismiss the action.\nIn Garrett v. Trotter, 65 N. C., 430, the late Chief Justice thus expresses his own, and the opinion of the Court: \u201cWhen there is a defect in substance, as an omission of a material allegation in the complaint, it is a defective statement of the cause of action, and the demurrer must specify it, to the end that it may be amended by making the allegation; and when there is a statement of a defective cause of action, the demurrer must specify it, to the end that, as there is no help for it, the plaintiff may stay his proceeding without a further useless incurring of costs.\u201d\nThe uew system, in its whole structure and scope, looks to a trial of a cause upon its merits, and discountenances objections for defects which may be corrected and removed when made in apt time, and will not entertain them after trial and verdict. This is manifest from \u00a7\u00a7272 and 276, the latter of which, in positive terms, declares that \u201cthe Court and the Judge thereof shall, in every stage of the action, disregard any error or defeat in the pleadings which shall not affect the substantial rights of the adverse party; and no judgment shall be reversed or be affected by reason of such error or defect.\u201d Accordingly, the interpretation put upon these clauses in the Courts of New York, where they are the same, is that such defects as would be remediable by amendment that does not change substantially the claim or defence, will not sustain an application to dismiss the action. Loundsbury v. Purdy, 18 N. Y., 515.\nIn Hoffheimer v. Campbell, 59 N. Y., 269, Chief Justice Church uses this language: \u201cIf the objection had been taken at the trial, the complaint might have been amended, or the additional facts supplied. It is a general rule in the trial of actions, that defects which, if pointed out, may have been supplied or avoided, will not be assailable, on the appeal.\u201d\nThe rule is thus aunounced by a recent author after an examination of the cases: \u201cThis defect\u201d (that the complaint does not state facts sufficient to constitute a cause of action), \u201cand want of jurisdiction over the subject of the action, are the radical grounds of objection to a pleading, the only ones not waived by pleading to the merits, and were the defects of substance met by the old general demurrer.\u201d * * * * \u201c Such demurrer should be interposed to a pleading or any of its counts or statements, when it shows that no legal wrong has been done; or that the law will not redress it; or that the party has mistaken his remedy; or when there has been -an omission of some material averment necessary either to establish the wrong, or to so connect the parties with it, as to entitle the plaintiff to redress.\u201d . Bliss\u2019 Code Plead., \u00a7\u00a7413, 416. As explicit is the rule in Pomeroy on Rem. and Rem. Rights, \u00a7548 et seq.\nIt seems to us, that the general terms in which the section under examination is expressed, require a construction consistent with the other provisions of the act, and such restrictions as we have suggested, in order thereto.\nThe wholesome rule thus indicated must be observed, and if appellants were permitted to make such objections when not made below, upon the hearing of an appeal, it would be subversive of fair trials and but a snare for the unwary- We cannot allow it to be done.\nThe plaintiffs here allege their ownership of the land, the defendants\u2019 entry and the damages sustained. These are the essential elements in the action, and the imputed omissions are of the very kind, if substantial, to be met by demurrer and removed by amendment. The real subject of controversy was eliminated and passed on by the jury, and the defendants were not at all misled, and must abide the result. The Code, \u00a7\u00a7269 et seq.\nThere is no error, and the judgment must be affirmed.\nNo error. Affirmed.", "type": "majority", "author": "Smith, C. J." } ], "attorneys": [ "Messrs. Qrandy & Aydlett and E. F. Lamb, for the plaintiffs.", "Messrs. Pace & Holding and Geo. V. Strong, for the defendants." ], "corrections": "", "head_matter": "E. C. HALSTEAD et al. v. F. H. MULLEN et al.\nBoundary \u2014 Evidence\u2014Pleading.\n1. The declarations o\u00ed a deceased person in relation to the location o\u00ed the line dividing his lands from those of anothei, are admissible on the trial of an issue between subsequent owners or claimants of such adjacent lands, involving their boundaries.\n3. The new system of pleading in its whole structure and scope, looks to a trial of causes upon their merits, and discountenances objections whiqh may be removed.\n3. Objection to a defective statement o\u00ed a cause of action must be taken advantage o\u00ed by demurrer or will be deemed to be waived, while a statement of a defective cause o\u00ed action may be taken advantage of at any time by motion to dismiss.\n(Mason v. McCormick, 85 N. C., 236; Fry v. Carrie, 91 N. C., 436 ; Meeldns v. Tatum, 79 N. C., 546; Williamson v. Canal Co., 78 N. C., 156 ; Garrett v, Trotter, 65 N. C., 430, cited and approved!.\nThis was a civil action tried before Shepherd, Judge, at Fall Term, 1885, of Camden Superior Court.\nThere was a verdict and judgment for the plaintiffs, from which defendants appealed.\nThe facts are stated in the opinion.\nMessrs. Qrandy & Aydlett and E. F. Lamb, for the plaintiffs.\nMessrs. Pace & Holding and Geo. V. Strong, for the defendants." }, "file_name": "0252-01", "first_page_order": 284, "last_page_order": 288 }