Margaret McLennan v. R. C. Chisholm.

Supreme Court of North Carolina

Margaret McLennan v. R. C. Chisholm.

66 N.C. 100

CourtSupreme Court of North Carolina

DecidedJanuary 5, 1872

StatusPublished

Cited by5 cases

This text of 66 N.C. 100 (Margaret McLennan v. R. C. Chisholm.) is published on Counsel Stack Legal Research, covering Supreme Court of North Carolina primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Margaret McLennan v. R. C. Chisholm., 66 N.C. 100 (N.C. 1872).

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Opinion

BoydeN, J.

The only question made in this case, is, as to the charge of His Honor.

*101 'I

His Honor instructed the jury, that if the Alexander Me-Leod tract of land, being the land in dispute either adjoined the plantation of the testator, or lay contiguous thereto, the plaintiff was entitled to recover. In this charge, we think that if there was any error, it was certainly not to the prejudice of the plaintiff.

It will be remembered, that there was no evidence, offered on the part of the plaintiff, that the tract of land in controversy had been used by the testator as a part of his plantation. But the plaintiff attempted to show that it adjoined the plantation, • or that it lay contiguous thereto ; and His Honor instructed the jury that if it adjoined the plantation or lay contiguous thereto, then the plaintiff was entitled to recover.

This was quite as favorable a charge as the plaintiff was entitled to, upon the testimony; as the Court does not hold, that it would certainly follow, that if it adjoined or lay contiguous, it would pass to the devisee under the words “my plantation.” It might not, as it by no means follows, that by the term “my plantation,” all the adjoining and contiguous lands pass.

The true enquiry was, did the particular tract of land, which lay a mile and a quarter from the residence of the testator, across Mountain Creek, where there was a blacksmith shop, occupied only as such, constitute it, a part of the plantation. It might have been, so considered and so used by the testator, but there is no proof in the cause, that the tract in controversy was and is a part of the plantation, or that it was considered as a part thereof by the testator; but the plaintiff seems to have put her case solely upon the ground that the tract in dispute either adjoined or lay contiguous to the plantation; but the jury have found that the land neither adjoined, nor was contiguous.

It is true, that in the case of Howe v. Davis 10 Ire. 431, it was settled that as £the devisor actually cultivated two tracts, one of which he called his home place, and the *102 other the Brown place, yet as he cultivated both tracts as one farm, they passed under the designation of his plantation, and in the case of Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20, the Court held that “my plantation,” carried two tracts which were half a mile apart, when both tracts had been cultivated together by the testator as one farm.

In our case, there was no proof that the tract in dispute, had ever been cultivated as a part of the plantation of the devisor.

Thebe is no Ebbob. Let this be certified.

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BoydeN, J.

The only question made in this case, is, as to the charge of His Honor.

*101 'I

His Honor instructed the jury, that if the Alexander Me-Leod tract of land, being the land in dispute either adjoined the plantation of the testator, or lay contiguous thereto, the plaintiff was entitled to recover. In this charge, we think that if there was any error, it was certainly not to the prejudice of the plaintiff.

It will be remembered, that there was no evidence, offered on the part of the plaintiff, that the tract of land in controversy had been used by the testator as a part of his plantation. But the plaintiff attempted to show that it adjoined the plantation, • or that it lay contiguous thereto ; and His Honor instructed the jury that if it adjoined the plantation or lay contiguous thereto, then the plaintiff was entitled to recover.

This was quite as favorable a charge as the plaintiff was entitled to, upon the testimony; as the Court does not hold, that it would certainly follow, that if it adjoined or lay contiguous, it would pass to the devisee under the words “my plantation.” It might not, as it by no means follows, that by the term “my plantation,” all the adjoining and contiguous lands pass.

The true enquiry was, did the particular tract of land, which lay a mile and a quarter from the residence of the testator, across Mountain Creek, where there was a blacksmith shop, occupied only as such, constitute it, a part of the plantation. It might have been, so considered and so used by the testator, but there is no proof in the cause, that the tract in controversy was and is a part of the plantation, or that it was considered as a part thereof by the testator; but the plaintiff seems to have put her case solely upon the ground that the tract in dispute either adjoined or lay contiguous to the plantation; but the jury have found that the land neither adjoined, nor was contiguous.

It is true, that in the case of Howe v. Davis 10 Ire. 431, it was settled that as £the devisor actually cultivated two tracts, one of which he called his home place, and the *102 other the Brown place, yet as he cultivated both tracts as one farm, they passed under the designation of his plantation, and in the case of Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20, the Court held that “my plantation,” carried two tracts which were half a mile apart, when both tracts had been cultivated together by the testator as one farm.

In our case, there was no proof that the tract in dispute, had ever been cultivated as a part of the plantation of the devisor.

Thebe is no Ebbob. Let this be certified.

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66 N.C. 100, Counsel Stack Legal Research, https://law.counselstack.com/opinion/margaret-mclennan-v-r-c-chisholm-nc-1872.

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