Opinion
(December Term, 1860.)
Where a witness testified that a certain unmarked pine had been pointed out to him as the corner of a grant by an old man, at the time of the trial deceased, and there were five particulars in which the description in the grant were supported by the facts proved, it was Held, erroneous to charge the jury that there was no evidence of the location of the grant.
EJECTMENT, tried before French, J., at last Fall Term of RICHMOND.
Cameron and Strange for plaintiff.
Ashe for defendant.
The plaintiff read in evidence a grant from the State to himself, dated 1 January, 1858, conveying the land in controversy.
The defendant offered in evidence a grant from the State to one David Allison, dated in 1795, which is as follows:
"North Carolina. No. 815.
"Know ye, that we have granted unto David Allison, six hundred and forty acres of land in Richmond County, beginning at a pine, between Hitchcock Creek and Mountain Creek, and on the east side of George Collins's, and on the north side of the Grassy Island road, and runs east 320 poles to a pine below McCall's mill; thence north 320 poles to a pine above said mill, then west 320 poles to a corner, then south 320 poles to the beginning. Dated 23 April, 1795."
It was in evidence, that Hitchcock Creek and mountain Creek were each fifteen or twenty miles long and eight or ten miles apart, and between these two streams was, generally, a pine country. It was further in evidence that the Grassy Island road was eight or ten miles long.
One Gillis testified, that about twenty years ago one McCaskill, now deceased, pointed out to him a pine, then green and forked about three or four feet from the ground, as the corner of the Robinson and Harrington land, and represented on the annexed diagram as letter A. The witness heard nothing said about the beginning corner. The pine is between the streams above named, on the edge of the Grassy Island road and about a half mile southeast of George Collins's. McCaskill, spoken of above, was a native of Scotland and came to the United States (159) in 1802, and to the neighborhood of the land in controversy in 1820.
Gillis stated that the pine pointed out to him by McCaskill had no marks of any kind on it.
Assuming the pine, above mentioned (A), as the beginning of the Allison grant and, running course and distance, the first line would end about 160 poles below McCall's mill and the second line about 160 poles above it, and, pursuing the calls of course and distance, the locus in quo would be within the Allison grant.
, SEE 53 N.C. 122.]
The defendant further offered a deed from Sheriff Cole to Toddy Robinson and Henry Harrington, dated in 1796, containing several tracts, each containing 640 acres, and among them was tract "No 815, granted to David Allison on 23 April, 1795."
The court charged the jury, that there was no evidence to be submitted to them of the location of the Allison grant. Defendant's counsel excepted.
(160) Verdict and judgment for plaintiff. Appeal by defendant.
The sheriff's deed to Robinson and Harrington, dated in 1796, for a tract of 640 acres of land, granted to David Allison, "by grant, No. 815, dated 23 April, 1795," we think, makes a link sufficiently strong in the chain of title to connect the land covered by this grant with the title of "Robinson and Harrington," so as to establish that it was the Robinson and Harrington land referred to in the hearsay evidence of Alexander McCaskill, derived through the testimony of the witness Gillis. That evidence was competent on a question of boundary, and, indeed, was not objected to on the trial; consequently, there was some evidence to be submitted to the jury of the location of the Allison grant; for the fact, that by beginning at the pine pointed out by McCaskill as "the corner" of the Robinson and Harrington land and running thence according to the calls of the grant, five general discriptions fit in and concur to prove the accuracy of the witness, and make out a remarkable coincidence, which was well calculated to satisfy the jury that it was the true location of the grant. At all events, in the opinion of this Court, the jury ought to have been allowed to take these several matters into consideration. In aid of the hearsay evidence, we have the facts that it fits the grant in this: First, it is a pine between Hitchcock Creek and Mountain Creek. Second, it is east of George Collins's. Third, it is on the edge of the Grassy Island road. Fourth, running course and distance, the first line crosses the creek below McCall's Mill. Fifth, the second line terminates above McCall's mill. It is true, these descriptions are very general, and neither, taken by itself, would amount to much, but taken together like many small circumstances all pointing the same way, they were fit to be submitted to the jury, and might have enabled them to arrive at a satisfactory conclusion. (161)
PER CURIAM. Venire de novo.
Cited: Williams v. Kivett, 82 N.C. 115.