Summary
In Jones v. Huggins, 1 Dev. Rep. 223, an ancient survey was rejected, though urged not to be the act of the party, but of the surveyor who was then dead.
Summary of this case from DEN d. DANCY v. SUGGOpinion
July Term, 1827.
From Onslow.
1. A witness who has seen many certificates of survey attached to grants and purporting to have been made by a surveyor who had been many years dead, is competent, from the knowledge of his writing thus acquired, to prove that a particular plat of survey is in the handwriting of the deceased surveyor.
2. A survey, though ancient, made by direction of the owner of lands, for his own convenience, is not admissible evidence for him or those claiming under him.
THIS was an action of trespass q. c. f., tried before Daniel, J. The plaintiff deduced title under a grant for 640 acres of land to one Joel Martin in 1713, a conveyance to John Starkey in 1759, and subsequent descents and devises to himself. The plaintiff also deduced title to himself, under a grant to John Starkey in 1760, for 80 acres, to which grant was annexed a certificate of survey purporting to have been made 24 October, 1759, by John Skibbow, deputy surveyor of Onslow. A long continued and actual possession was then shown of land alleged to be in both grants, of neither of which was a corner or line tree to be found; and in order to locate them, the plaintiff gave evidence of the general reputation respecting their boundaries. As further evidence, it was proposed to submit to the jury a map or plan, purporting to represent the two tracts of land, on which were laid down various water-courses, dwelling-houses, and other objects, and at the foot of the map was a memorandum in these words: "This plan represents 660 acres of land in Onslow County, on the west side of White Oak River, beginning, etc. [setting forth the various courses and distances], as by the patent granted, etc., doth appear. Explained for John Starkey, Esq., 24 October, 1759. P. J. Skibbow, D. S." The plaintiff proved by an aged resident of the county that John Skibbow was dead before his recollection, and that (224) he had understood from general report that Skibbow in his lifetime acted as a surveyor or deputy surveyor of the county; that the witness had seen many plats of surveys attached to grants of land and purporting to be made by Skibbow, and, from the acquaintance with his handwriting thus acquired, believed that every word in the memorandum and in the map produced was of the proper handwriting of Skibbow. Whereupon the judge, notwithstanding an objection taken thereto by the defendant's counsel, received the map in evidence and left its weight and effect to be judged of by the jury.
Badger for the appellant.
Gaston contra.
A verdict was found for the plaintiff, and a new trial being refused, the defendant appealed.
I consider that the evidence offered of Skibbow's handwriting was legally admitted, and that it was certainly free from the objection of its being proof from comparison of hands. The witness was an aged man, and Skibbow had died before his remembrance. The witness's knowledge of the general character of Skibbow's handwriting was derived from having inspected many plats of surveys annexed to grants, which surveys purported to have been made by him, who was reputed to be a surveyor or deputy. I think this satisfies the rule of law, that the witness must have acquired his knowledge of the handwriting by sufficient means; for the authenticity of these grants held by various persons as the muniments of their estates cannot reasonably be questioned. The offices where they issue, and where they are recorded, the small temptation presented to commit forgery and the facility of (228) detecting it, place these documents on more elevated ground than bank bills or postoffice franks and bring them within the operation of the rule stated by Le Blanc, J., in Roe v. Rawlings, 7 East, 282. This very point has been so decided in New York, as appears from the case quoted at the bar.
But on the question whether the survey itself be competent for the plaintiff, the Court is of opinion that it is inadmissible as being a private memorial procured to be made by Starkey for his own convenience, and is not evidence for him, or for any one who claims through him. The reason for excluding such evidence is decisive, viz., that it might benefit men to include in such surveys more than belonged to them. There must consequently be a new trial.
PER CURIAM. Judgment reversed, and new trial awarded.
Approved: Dancy v. Sugg, 19 N.C. 515; Dobson v. Whissenhunt, 101 N.C. 645; Burwell v. Sneed, 104 N.C. 118; Riddle v. Germanton, 117 N.C. 389.