Newkirk v. Porter

82 S.E.2d 74 (1954) 240 N.C. 296

NEWKIRK et ux.
v.
PORTER et al.

No. 596.

Supreme Court of North Carolina.

May 19, 1954.

Rountree & Rountree, Wilmington, and Wyatt E. Blake, Burgaw, for plaintiffs, appellants.

Leon H. Corbett and Harry T. Fisler, Burgaw, for defendants, appellees.

ERVIN, Justice.

When the answers are read aright, they admit the plaintiffs' title to the tract of land described in paragraph 2 of the statement of facts. They merely put the actual location of the true dividing line between the plaintiffs' land and the tract claimed by the defendants in issue by alleging, in essence, that the disputed area is covered by the deeds of the defendants rather than the deeds of the plaintiffs. This being true, it was not obligatory for the plaintiffs to offer evidence sufficient to establish title by adverse possession or otherwise. But it was incumbent upon them to present testimony ample to show that the disputed area lies within the bounds of their track. Williamson v. Bryan, 142 N.C. 81, 55 S.E. 77.

The true dividing line between the plaintiffs' land and the tract claimed by the defendants is the defendants' northern line, which is thus defined in their deeds: "Beginning at a red oak near the run of Moore's Creek, running south 88 east 375 poles to a stake in the back line."

The plaintiffs assert with complete correctness that the disputed area necessarily lies within the bounds of their tract if the true dividing line is delineated upon the earth's surface by the large marked white oak tree standing 138 feet east of Moore's Creek and the succession of marked gumtrees.

The plaintiffs undertook to prove at the trial that the marked white oak and the succession of marked gums fix the actual location of the true dividing line upon the earth's surface. To this end, the plaintiffs introduced evidence ample to establish these propositions: First, that the "red oak near the run of Moore's Creek" called for by the defendants' deeds had long since vanished from the earth leaving no reliable trace of its former location; and, second, that Edmond Newton, under whom the defendants claim, had declared, in substance, under the circumstances detailed by the witness W. A. Gurganous that the marked white oak and the succession of marked gums disclosed the actual location upon the earth's surface of the dividing line between the land now owned by the plaintiffs and the tract now claimed by the defendants.

This evidence is sufficient to support a finding by a jury that the disputed area lies within the bounds of the tract admittedly owned by the plaintiffs. As a consequence, it was error to nonsuit the action.

To be sure, it may be argued with much force that Edmond Newton's statement falls short of the requirements of the exception to the hearsay rule which admits declarations concerning private boundaries because it does not refer to a monument of boundary or a natural object called for in the deeds. Caldwell Land & Lumber Co. v. Triplett, 151 N.C. 409, 66 S.E. 343; Bland v. Beasley, 140 N.C. 628, 53 S.E. 443. Be that as it may, the statement satisfies the requirements of the independent rule governing admissions by predecessors in interest, which declares that "any statement by a person holding or claiming an interest in property, which could have been used against him in litigation over such interest, is admissible to the same extent and for the same purposes against parties claiming under him." Stansbury on North Carolina Evidence, section 174. Under this independent rule, a declaration against interest made by a former owner of land during the time of his ownership respecting the location of the boundaries of the land is competent against one who claims under him any interest in the land acquired since the declaration was made. Gray v. Coleman, 171 N.C. 344, 88 S.E. 489; Byrd v. Carolina Spruce Co., 170 N.C. 429, 87 S.E. 241; Ellis v. Harris, 106 N.C. 395, 11 S.E. 248; Cansler v. Fite, 50 N.C. 424; Webb v. Hall, 18 N.C. 278. See, also, in this connection: Carr v. Bizzell, 192 N.C. 212, 134 S.E. 462.

In reaching the conclusion that it was error to nonsuit the action, we do not overlook the circumstance that the defendants pleaded the judgment in the former action as "res adjudicata of all matters and things involved in this action," or the fact that one of the two lawyers who represented the plaintiffs at the trial made this statement to the presiding judge just before the entry of the nonsuit: "We will stand on adverse possession."

The plea of res adjudicata is without merit for the very simple reason that the allegations, the evidence, and the merits of the present action are substantially different from the allegations, the evidence and the merits of the former action. Hampton v. Rex Spinning Co., 198 N.C. 235, 151 S.E. 266.

The trial judge should have ignored the statement of one of the plaintiffs' trial counsel to the effect that the plaintiffs would "stand on adverse possession" as a casual, hasty, or inconsiderate admission not binding the plaintiffs. Davidson v. Gifford, 100 N.C. 18, 6 S.E. 718. The statement was in irreconcilable conflict with the defendants' admission of the plaintiffs' title, and the theory of the plaintiffs' case. Moreover, it was repudiated in express terms by the plaintiffs' other trial counsel.

The statement would not have warranted the compulsory nonsuit even if the answers of the defendants had denied the plaintiffs' title to the land embraced by their deeds and thus compelled the plaintiffs to "stand on adverse possession." The plaintiffs offered testimony on the trial of the present action tending to show that their deeds covered the disputed area. This testimony and the other facts in evidence would have sufficed to show that the plaintiffs and those under whom they claim had acquired title to the 30 acres in controversy by adverse possession under color of title for a period of seven years according to the statute embodied in G.S. § 1-38 had the answers of the defendants denied the plaintiffs' title to the land embraced by their deeds.

For the reasons given, the compulsory nonsuit is

Reversed.