Perkins v. Clarke

84 S.E.2d 251 (1954) 241 N.C. 24

Miss Cora PERKINS
v.
F. L. CLARKE and wife, Mrs. F. L. Clarke.

No. 311.

Supreme Court of North Carolina.

November 3, 1954.

W. H. Strickland, Lenoir, Proctor & Dameron, Marion, for plaintiff, appellee.

G. W. Klutz, A. R. Crisp, Hal B. Adams, Lenoir, for defendants, appellants.

HIGGINS, Justice.

The evidence, both record and parol, discloses that J. Thad Perkins made deeds to his children on September 20, 1921, conveying the southern portion of his farm to his sons, Robert H., Samuel O., and Frank E. Perkins. The first call in the description of this deed is the line in controversy: "Beginning at the forks of Rocky Branch, William Carroll's corner in the Micheaux line, running an easterly course to a mahogany tree on Wilson's Creek." This tract of land with the same calls was conveyed to the defendant, F. L. Clarke, on January 19, 1946, by Robert H., Samuel O., and Frank E. Perkins.

On September 20, 1921, J. Thad Perkins conveyed the northern portion of his farm to Cora A. Perkins, an unmarried daughter who is the plaintiff in this action, and to Ernest L. Perkins, an unmarried son. This tract contained the J. Thad Perkins home. This deed does not contain specific calls, but the description is as follows:

"Adjoining the lands of Robert H. Perkins, Samuel O. Perkins, and Frank E. Perkins on the South, George T. Perkins and wife on the North. Bounded upon the East by the A. W. Perkins tract; on the North by George T. Perkins and wife; and on the West by John Perry and others; and on the South by Robert H. Perkins, Samuel O. Perkins and Frank E. Perkins. This tract of land included all the land owned by J. Thad Perkins, lying on Wilson's Creek between George T. Perkins and wife tract on the North, and the Robert H. Perkins, Samuel O. Perkins and Frank E. Perkins on the South."

On March 9, 1932, Ernest L. Perkins conveyed his interest in the above described lands to Cora Perkins.

The defendants' answer sets up a dividing line between the lands of the parties. It is apparent, therefore, that the southern line of the Cora Perkins land and the northern line of the Clarke land are one and the same, and consequently the line in dispute.

Since the location of the line settles the dispute, the court, therefore, properly refused to submit the issue of title tendered by the defendants. A similar question was before this Court in the case of Clark v. Dill, 208 N.C. 421, 181 S.E. 281, and we quote from Chief Justice Stacy's opinion: "Upon the trial, the defendant tendered issues of title, as well as of boundary, and excepted to the refusal of the court to submit the former. * * * The merit in appellant's exception is dissipated by the following statement in the case on appeal: `From the testimony of both plaintiff and defendant the title to the J. H. Dill land was never in dispute and the title to the Clark land was not brought into dispute except as to the question of where the true line should run between them.' The case was tried purely as a proceeding to establish the boundary line between the land admittedly occupied by the plaintiff and the adjoining land admittedly occupied by the defendant. It is provided by C.S. § 362 that the `occupation of land constitutes sufficient ownership for the purposes of this chapter.' Williams v. Hughes, 124 N.C. 3, 32 S.E. 325."

The deeds offered by the parties show the plaintiff is the owner, and all the evidence shows she is in possession of the lands immediately north of the defendants' northern boundary line; that the defendant F. L. Clarke is the owner and in possession of the lands immediately south of that line is likewise shown by all the evidence. The true location of the boundary line, therefore, is the question in dispute.

The map filed with the record shows the red line from Red 1, the forks of Rocky Branch, north 86 degrees east 260 poles to a mahogany on Wilson Creek, and Red 2 is a straight line. This represents plaintiff's contentions. The map shows the purple line beginning at Purple A, a large beech on Rocky Branch, running south 76 degrees east 94 poles to a dogwood, north 881/2 degrees east 7 poles; south 75 degrees east 10 poles; south 55 degrees east 10 poles; south 82 degrees east 14 poles to a stone and spring; south 212 degrees east 121/2 poles; north 821/2 degrees east 33 poles to a bridge and stake on Wilson's Creek. This line represents defendants' contentions.

Exceptions were taken to the testimony of the surveyor because he surveyed and set out on his map the disputed line as contended for by the plaintiff. On cross-examination he also testified that he surveyed and set out on the map the defendants' contentions. The court's order directed the surveyor to survey the contentions of the parties and there was no exception to that order.

One hundred three exceptions were taken during the trial. Sixty-nine assignments of error are discussed in the brief. Many of the exceptions were taken to the testimony of witnesses who stated that they knew, and had known for many years the location of objects called for in the deeds, such as the forks of Rocky Branch, the Carroll's corner, the Micheaux line, the mahogany on Wilson's Creek; and some of the witnesses related these objects to the points on the surveyor's map. This evidence was clearly competent. The witnesses were testifying from their own knowledge. Each testified that he knew the location of the objects about which he testified. Evidence from personal knowledge is not to be confused with evidence of declarations made by others. In the latter case, in order to make the declarations competent it would be necessary to show the declarations were made ante litem motam by a disinterested party, since deceased. The distinction is set forth in Maynard v. Holder, 219 N.C. 470, 472, 14 S.E.2d 415.

Defendants' assignments of error Nos. 66, 75, and 85 relate to the admission of evidence for the limited purpose of impeaching the testimony of Ernest L. Perkins, a witness for the plaintiff who had testified that the red line between Red 1 and Red 2 was the correct dividing line. He was then asked on cross-examination if he had not made the statement in the presence of a number of witnesses to the effect he had pointed out to the defendant or his son a different line, at or near purple line A to B as the correct line. This Perkins denied. Witnesses were called by the defendants to testify that they had heard Perkins make the statements which he had denied making. This evidence was admitted for the purpose of impeachment only, and the jury was instructed not to consider it as substantive evidence. Undoubtedly, the ruling of the court was correct. Proof of what Perkins said in the hearing of others would violate the hearsay rule and could be admitted only under the exception which admits such hearsay evidence for the purpose of impeachment. In the case of State v. Wellmon, 222 N.C. 215, 217, 22 S.E.2d 437, 439, the Court said: "`It is well settled, that the credit of a witness may be impeached by proof that he has made representations inconsistent with his present testimony'". And in the case of Pate v. Tar Heel Steamboat Co., 148 N.C. 571, 62 S.E. 614, this Court said: "Of course the declarations of the boat hand made after the occurrence are incompetent for the purpose of proving the condition of the bateau. Southerland v. [Wilmington & W.] R. Co., 106 N.C. 100, 11 S.E. 189. But having been examined by the defendant as its witness as to the condition of the bateau, it was competent to impeach or contradict his evidence upon that point, by his declarations on that subject to Glover. * * * His Honor properly confined the scope and effect of the question to `impeaching evidence.'"

A witness for plaintiff was asked as to the condition of Miss Cora's health. The question was objected to by the defendants, overruled, and the following answer given: "Her health has been failing right considerably for ten years and she can't hardly hear at all; we almost have to squall to get her to hear what we are saying and she can't understand a radio at all, and she has had her eyes examined twice in the last year and the doctor told her she had double cataracts and there is nothing they could do for her. She is about blind. She can't read her own letters. She sleeps very little at night." Obviously, the question was asked for the purpose of explaining the plaintiff's failure to take the stand and testify. The answer of the witness perhaps went further than was proper for that purpose, and perhaps further than was contemplated by the question. The defendant made no motion to strike. At any rate, in view of the rather compelling evidence disclosed by the record, the evidence objected to could not have influenced the jury in its decision on a clear cut question as to the location of the boundary line.

We have examined the other exceptions and assignments of error, including those taken to the charge. They are without substantial merit. The issue was one of fact. Much testimony was offered by both parties. Its probative force was for the jury. No reason appears why the verdict should be disturbed.

No error.