White v. Price

75 S.E.2d 244 (1953) 237 N.C. 347

WHITE et ux.
v.
PRICE et ux.

No. 165.

Supreme Court of North Carolina.

March 18, 1953.

E. R. Tyler, Roxobel, John R. Jenkins, Jr., Aulander, for plaintiffs, appellees.

Jones, Jones & Jones, Ahoskie, Pritchett & Cooke, Windsor, for defendants, appellants.

DEVIN, Chief Justice.

In their appeal the defendants have brought forward numerous exceptions to rulings of the court noted during the course of the proceeding, from the initial order of reference to the signing of the judgment, but after an examination of the entire record we are left with the impression that no harm has resulted to the defendants from any of these rulings which would warrant us in setting aside the verdict and judgment rendered.

The controversy falls within a narrow compass. A single question was raised by the pleadings and that was whether the disputed portion of the dividing line between the lands of the plaintiffs and defendants, for a distance of some 1500 feet, should be located along the center of a ditch, or along the center of a path or cartway on the southeast side of the ditch. The plaintiffs claimed the path; the defendants the ditch. The width of the strip involved was 4 to 7 feet. The court's final instruction to the jury epitomized the issue. He charged the jury if they found from the evidence and by its greater weight the location of the line to be in accordance with plaintiffs' contention they should answer the issue that the true dividing line was the line from the corner marked G, a straight line to the figure 2 on the road. And if not so satisfied, they should answer that the true dividing line was the line from G with the center of the ditch to the point on the road marked A.

We deem it unnecessary to set out in detail the testimony offered in the trial. It is sufficient to say that there was evidence in the record tending, to support the contentions of both parties. The jury has considered all the evidence relating to the controverted issue, and has resolved the question in favor of the plaintiffs. The decision thus reached must stand unless there be found such substantial error in the rulings of the trial judge as would appear to have affected the determination of this issue adversely to the defendants. The burden is on the appellants not only to show error but that the result was materially affected thereby to their hurt. Garland v. Penegar, 235 N.C. 517, 70 S.E.2d 486; Hodges v. Malonc & Co., 235 N.C. 512, 515, 70 S.E.2d 478.

The order of compulsory reference of the case was based on the ground that it involved a complicated question of boundary or required a personal view of the premises, G.S. § 1-189, subd. 3. The defendants excepted to the order, and now assign error for the reason that the question of boundary raised by the pleadings was not sufficiently complicated to justify a reference. However, we resolve the doubt in favor of the validity of the order.

The exceptions to the referee's report are sufficient in form to entitle the plaintiffs to trial by jury on the issue tendered. Marshville Cotton Mills v. Maslin, 200 N.C. 328, 156 S.E. 484; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842; Simmons v. Lee, 230 N.C. 216, 53 S.E.2d 79; Murphy v. Smith, 235 N.C. 455, 70 S.E.2d. 697.

The continuance of the case and the allowance of time to the plaintiffs to file exceptions to the referee's report were matters within the discretion of the court, and no prejudicial effect is perceived. Kerr v. Hicks, 131 N.C. 90, 94, 42 S.E. 532; Coleman v. McCullough, 190 N.C. 590, 130 S.E. 508; Todd v. Smathers, 235 N.C. 123, 68 S.E.2d 783; McIntosh, sec. 533.

The defendants noted exception to the testimony of the witness F. L. Odom as to the declaration of a deceased person, J. E. Odom, relative to the boundary line here in question. The defendants contend this evidence was incompetent, and that the court erred in admitting it. Under the fule stated in Yow v. Hamilton, 136 N.C. 357, 48 S.E. 782, and Corbett v. Hawes, 187 N.C. 653, 122 S.E. 478, in order to render hearsay evidence or declarations as to boundary competent it must appear that the declarant is now dead, that he was at the time of the declaration disinterested, and that the declaration was made ante litem motam. It appears from the record here that J. E. Odom was divested of title to the land in 1938; that he is now dead, and that this proceeding was instituted in 1950. There was no evidence of prior controversy. Plaintiffs contend it is reasonably to be inferred from the witness' testimony that the declaration was made at a time when witness and not the declarant was owner of the land, and hence that the declarant at that time was disinterested, and further that declarant died before the controversy arose. Stansbury, sec. 151. It would seem that if the declaration was made after 1938, and before suit, it would be competent under the rule, and that in the absence of anything to the contrary the presumption on appeal in favor of the correctness of the trial judge's ruling would apply. However, it appears that evidence of similar nature was admitted without objection. Defendants' assignment of error on this ground is not sustained.

Evidence was also admitted tending to show the general reputation, on the one hand, that the path was the line, and on the other that the ditch was so regarded, and that both the path and the ditch had been there from a remote period, one witness thought as much as one hundred years. Owens v. Blackwood Lumber Co., 212 N.C. 133, 193 S.E. 219; Hemphill v. Hemphill. 138 N.C. 504, 51 S.E. 42; Stansbury, sec. 150. The competence of this evidence was not challenged.

There was no exception to the sufficiency of the verdict. However, the rule is that the verdict may be interpreted and given significance by reference to the pleadings, evidence and charge of the court. Jernigan v. Jernigan, 226 N.C. 204, 37 S.E. 2d 493.

We have examined defendants' exceptions to the judge's charge to the jury, as well as each of the other exceptions noted, and find nothing therein which should be held prejudicial to the defendants' rights.

We conclude that the verdict and judgment should be upheld.

No error.