Wilson County Board of Education v. Lamm

173 S.E.2d 281 (1970) 276 N.C. 487

WILSON COUNTY BOARD OF EDUCATION
v.
Bessie H. LAMM, Widow, Virginia Lamm Hayes and husband, J. F. Hayes, Jack F. Hayes, a Minor, Tempie Ann Hayes, a Minor, Jack Thomas Hayes, a Minor, the Free Will Baptist Children's Home, Inc., and all persons not in being who may by any contingency own or acquire any interest in the lands constituting the subject matter of this action by reason of the Last Will and Testament of Grover T. Lamm, Deceased.

No. 30.

Supreme Court of North Carolina.

April 15, 1970.

Connor, Lee, Connor & Reece, by Cyrus F. Lee and David M. Connor, Wilson, for plaintiff-appellant.

Lucas, Rand, Rose, Meyer & Jones, by David S. Orcutt and Louis B. Meyer, Wilson, for defendants-appellees.

MOORE, Justice.

Plaintiff claims title by adverse possession for more than twenty years (G.S. § 1-40). Defendants admit plaintiff's possession but contend that it was not adverse but was a permissive possession which was to cease when the property was no longer used for school purposes.

The trial judge correctly charged the jury that plaintiff could acquire title by adverse possession only if the possession was open, notorious, and adverse. In Locklear v. Savage, 159 N.C. 236, 74 S.E. 347, adverse possession is defined as follows:

"* * * It consists in actual possession, with an intent to hold solely for the possessor to the exclusion of others, and is denoted by the exercise of acts of dominion over the land, in making the ordinary use and taking the ordinary profits of which it is susceptible in its present state, such acts to be so repeated as to show that they are done in the character of owner, in opposition to right or claim of any other person, and not merely as an occasional trespasser. It must be decided and notorious as the nature of the land will permit, affording unequivocal indication to all persons that he is exercising thereon the dominion of owner."

Accord: State v. Brooks, 275 N.C. 175, 166 S.E.2d 70.

The trial court further correctly charged the jury if the plaintiff entered into possession with the permission of the owner such possession would not be adverse unless and until the plaintiff disclaimed such arrangement and made the owner aware of such disclaimer or disclaimed the arrangement in such manner as to put the owner on notice that the plaintiff was no longer using the land by permission but was claiming it as absolute owner. Morehead v. Harris, 262 N.C. 330, 137 S.E.2d 174; Graves v. Causey, 170 N.C. 175, 83 S.E. 1030.

Plaintiff challenges certain testimony offered by the defendants and admitted over the objections of the plaintiff.

J. Walter Harrison, witness for defendants, testified that about 1919 he attended a meeting presided over by E. J. Barnes and held at Lamm's Store for the purpose of selecting a site for a new school. Over plaintiff's objection, Harrison was permitted to testify as follows:

"Q. Did Mr. Barnes indicate at that meeting the selection of the site for Lamm's School?

"A. Yes.

"Q. And did he make any statement with regard to how the land for Lamm's School site was obtained?

"A. Yes sir.

"Q. What statement did he make?

"A. That question was raised several times. When they were asking about where the site was going to be, he showed it to them. It was right there in sight of the store, right in sight of where the school is now. And he told them that Mr. Lamm was giving the site for as long as it was a school. He said, ``After all, that's as long as we want it. What do we want with it if we don't have any school here?'"

Plaintiff contends the admission of this testimony was error. We think not. Barnes was a member of the Board of Education and was present and presiding over a meeting called to select a school site. As such he was speaking for the Board. His statement under such circumstances was competent as an admission of the Board. Stone v. Guion, 222 N.C. 548, 23 S.E.2d 907; McRainy v. Clark, 4 N.C. 698; Stansbury, N.C. Evidence § 167 (2d ed. 1963). This statement by Barnes would also be competent as accompanying or characterizing the act of taking possession of the property. Stansbury, N.C. Evidence § 159 (2d ed. 1963). This assignment of error is overruled.

Plaintiff also contends the testimony of the defense witnesses Simpson and Peele was incompetent. These witnesses testified that prior to the time the school buildings were constructed they heard Grover Lamm make statements to the effect that he was allowing plaintiff to use the property so long as it was needed for school purposes, and then it was to return to him or his estate. At that time Lamm was the undisputed owner in fee but by these statements he conceded plaintiff had the right to go on the land, construct school buildings, and use the land for school purposes as long as it desired. This placed a definite limitation on his title and was clearly a declaration against his interest. 5 Wigmore, Evidence § 1458 (3rd ed. 1940); Stansbury, N.C. Evidence § 147 (2d ed. 1963). Declarations against interest are held admissible in North Carolina when (1) the declarant is dead, (2) the declaration is against a known proprietary interest, (3) the declarant has competent knowledge of the fact declared, and (4) declarant has no probable motive to falsify the fact declared. Carr v. Bizzell, 192 N.C. 212, 134 S.E. 462; Roe v. Journegan, 175 N.C. 261, 95 S.E. 495; Stansbury, N.C. Evidence § 147 (2d ed. 1963). Lamm died in 1952. As the record owner in possession of the property, he had competent knowledge concerning the use of the land, and since by his statements he was placing a limitation on his title, he at that time had no real motive to falsify the nature of this arrangement with the plaintiff. This testimony was properly admitted.

Plaintiff next assigns as error the admission of testimony by defense witnesses Moore and Jones relating to statements made by Lamm years after the plaintiff had constructed the buildings and had taken possession of the property in question. Statements made by Lamm at that time concerning his purported agreement with the plaintiff would be self-serving and should have been excluded. Gouldin v. Inter-Ocean Insurance Co., 248 N.C. 161, 102 S.E.2d 846; Williams v. Young, 227 N.C. 472, 42 S.E.2d 592; Stansbury, N.C. Evidence § 140 (2d ed. 1963).

Not every erroneous ruling on the admissibility of evidence, however, will result in a new trial. The burden is on the appellant not only to show error but to enable the court to see that he was prejudiced or the verdict of the jury probably influenced thereby. Hunt v. Wooten, 238 N.C. 42, 76 S.E.2d 326; Stansbury, N.C. Evidence § 9 (2d ed. 1963). The admission of incompetent testimony will not be held prejudicial when its import is abundantly established by other competent testimony, or the testimony is merely cumulative or corroborative. Bullin v. Moore, 256 N.C. 82, 122 S.E.2d 765; Town of Belhaven v. Hodges, 226 N.C. 485, 39 S.E.2d 366; Carpenter, Solicitor v. Boyles, 213 N.C. 432, 196 S.E. 850. The testimony of defense witnesses Harrison, Simpson and Peele concerning the same or similar statements made by Lamm was properly admitted. We therefore hold that the admission of similar testimony from the witnesses Moore and Jones was not such error as to require a new trial.

Plaintiff also assigns as error the testimony of H. D. Browning, Superintendent of Schools and Secretary of the Board from 1945 to 1967, who testified that in 1947 he first discovered that the plaintiff had no deed for the property in question. Over plaintiff's objection he was allowed to testify:

"In 1961 or thereabouts I paid a visit to Mrs. Bessie Lamm at her home at Lamm's Crossroads.

"Q. And did you at that time offer to purchase the Lamm's School site from Mrs. Bessie Lamm and Virginia Lamm Hayes?

"A. Well I don't know if it would be an offer to purchase. I called on Mrs. Lamm to discuss with her, as I remember it, the possibility of securing a fee title to the Lamm's School site. And in the conversation, I think I told Mrs. Lamm that I wasn't speaking for the Board but I was thinking it would be only fair to reimburse the family for about the same cost as the Board paid for the Sims and New Hope schools at the time they were purchased. It was all about the same time."

Plaintiff contends this testimony constituted an offer to compromise and as such should have been excluded. Ordinarily, evidence of an offer to compromise or settle a disputed claim will not be admitted. Stein v. Levins, 205 N.C. 302, 171 S.E. 96; Annot., 15 A.L.R. 3d 13 (1967). But an offer to compromise necessarily implies an existing dispute, a claim to be adjusted, or a controversy to be settled. Such was not the case here. When Browning called on Mrs. Lamm, plaintiff had been in possession of the land in question for more than twenty years, and the defendants were not then seeking to disturb that possession. There was no dispute between the parties at that time. Even had there been a dispute, Browning's statement was too vague and too indefinite to constitute an offer. At most he was simply exploring possibilities. As stated in John L. Roper Lumber Co. v. Richmond Cedar Works, 168 N.C. 344, 84 S.E. 523 Ann.Cas.1917B, 992:

"* * * A party is not bound to admit, and does not necessarily admit, title in another, because he prefers to get rid of that other's claim by purchasing it. He has a right to quiet his possession and protect himself from litigation in any lawful mode that appears to him most advantageous or desirable. To hold otherwise would compel him to litigate adverse claims, or, by buying one, forego any right to claim the benefit of the statute of limitations as to all others. The acts and declarations of the possessor may, doubtless, be given in evidence with a view of showing the character of his claim, but whether the possession is adverse or not is a question for the jury to determine upon all the evidence."

This assignment of error is overruled.

Other assignments of error made by the plaintiff have been carefully considered but as they were adequately treated in the opinion of Britt, J., of the Court of Appeals, no further discussion is deemed necessary. The plaintiff simply failed to establish title by adverse possession, and no error of law requiring a new trial has been made to appear. The decision of the Court of Appeals is therefore

Affirmed.

LAKE, J., dissents.