Opinion
(Spring Riding, 1805.)
General reputation or hearsay is admissible as evidence in questions of boundary.
PLAINTIFF's patent called for a white oak, then the second line, then the third to a creek, then down the creek to the beginning. He proved a marked white oak, on a branch emptying into the creek, and running from thence so as to form an acute angle between it and the creek. He proved, also, a red oak at the third corner, and a red oak was called for in the patent, and that where the red oak stood the second line would terminate, if drawn from the end of the first line, beginning at the white oak. This white oak standing on the branch was at the (350) distance of 200 or 300 yards from the creek.
Under the charge of the court, however, the jury found a verdict establishing it as the beginning, and the verdict remained undisturbed.
This verdict was found on the hearsay of a witness now dead, who heard a former proprietor, now also dead, say that the white oak was the beginning tree; and on the hearsay of another witness, who said he ran out the land for the said proprietor when he purchased it, and began at the said white oak, in 1766. The original survey was made in 1753, or earlier.
, SEE 3 N.C. 305.]
If the beginning was at A, then C D was the true line of the patent. If at B, then E F was the true line. The plaintiff claimed to C D, and prevailed, as the white oak at A was established instead of the beginning at B on the creek.
NOTE. — See Standen v. Bains, 2 N.C. 238; Tate v. Southard, 8 N.C. 45; Taylor v. Shuford, 11 N.C. 116; Mendenhall v. Cassells, 20 N.C. 49. But the rule of admitting hearsay in questions of boundary must be confined to what deceased persons have said. Gervin v. Meredith, 4 N.C. 439. And the hearsay evidence must not be post litem motam. Dancy v. Sugg, 19 N.C. 515.
Cited: Hurley v. Morgan, 18 N.C. 430; Hartzog v. Hubbard, 19 N.C. 243; Whitehurst v. Pettipher, 87 N.C. 179; Smith v. Headrick, 93 N.C. 212; Shaffer v. Gaynor, 117 N.C. 20; Yow v. Hamilton, 136 N.C. 359.