Mechanics Bank & Trust Co. v. Whilden

BROWN, J., concurring; WALKER, J., concurs in the concurring opinion. This is an action to remove a cloud from title.

The plaintiff claims under a grant issued by F. H. Busbee, (280) trustee, of date 18 August, 1885, and the defendant under a grant issued to D. F. Goodhue, of date 27 May, 1872, and both parties introduced evidence to sustain their respective claims.

The principal controversy between the parties is as to the location of the Goodhue grant, the plaintiff contending that its beginning corner is at H on the plat, in which event it would cover only a small part of the land in the plaintiff's grant, and the defendant contending that it is at A on the plat, which location would cover nearly all of the land in the plaintiff's grant. There was a locust tree at A and one at H, and his Honor permitted a witness for the plaintiff to say that he had heard three persons say that the locust at H was a corner of the Goodhue tract, and the defendant excepted.

There was no evidence fixing the time when the declarations were made, or that those making them were disinterested, or that they were dead at the time of the trial.

There was a verdict and judgment in favor of the plaintiff, and the defendant appealed. The evidence of the declarations of certain persons as to the location of the Goodhue corner was incompetent because hearsay, and should have been excluded.

"The restrictions on hearsay evidence of this character — declarations of an individual as to the location of certain lines and corners — established by repeated decisions, are: that the declarations be made antelitem motam; that the declarant be dead when they are offered, and that he was disinterested when they were made." Hemphill v. Hemphill, 138 N.C. 506.

None of these requirements were met by the plaintiff, and as the declarations are condemned under the general rule excluding hearsay evidence, it was its duty to prove the facts bringing the evidence within the exception.

In Dobson v. Finley, 53 N.C. 499, Chief Justice Pearson says: "In the latter, to wit, hearsay evidence, it is necessary as a preliminary to its admissibility to prove that the person whose statement it is proposed to offer in evidence is dead; not on the ground that the fact of his being dead gives any additional force to the credibility of his statement, but on the ground that if he be alive he should be produced as a witness"; and this language is quoted with approval in Shaffer v. Gaynor, 117 N.C. 15;Westfelt v. Adams, 131 N.C. 379, and Yow v. Hamilton, 136 N.C. 358.

The question discussed by the defendant as to the right to maintain an action to remove a cloud from title, when the deeds of the defendant, if located according to the plaintiff's contention, are outside the lines of the plaintiff's deeds, is not presented, because the deeds of the defendant cover a part of the land in the deeds of the plaintiff in any event.

For the error pointed out there must be a

New trial.