Owens v. Blackwood Lumber Co.

212 N.C. 133
CourtSupreme Court of North Carolina
DecidedOctober 13, 1937
StatusPublished
Cited by5 cases

This text of 212 N.C. 133 (Owens v. Blackwood Lumber Co.) 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
Owens v. Blackwood Lumber Co., 212 N.C. 133 (N.C. 1937).

Opinion

Clarkson, J.

This action was here before — Owens v. Lumber Co., 210 N. C., 504. On tbe former trial a judgment of nonsuit (C. S., 567) was granted in tbe court below at tbe close of all the evidence. Upon appeal to this Court tbe judgment was reversed. Upon trial in tbe court below there was a verdict in favor of plaintiffs and judgment rendered thereon, from which defendant Blackwood Lumber Company appealed to this Court.' Tbe facts are so thoroughly set forth in tbe former opinion that we will only consider those relating to tbe material exceptions and assignments of error.

Plaintiffs introduced tbe original State Grant No. 1155, with plat attached thereto, dated 18 February, 1878, duly registered 15 February, 1879, in Jackson County, N. C., to Sylvester Galloway.

Tbe mesne conveyances connecting tbe plaintiffs with said State Grant No. 1155, tbe source of their title, are as follows:

1. Power of attorney, dated 14 November, 1903, from Sue E. Booker, née Sue E. Galloway (Sue E. Galloway was tbe widow of Sylvester Galloway, to whom said grant was issued) to Eboda E. Fisher, giving her full and complete power and authority to sell and convey lands and real estate, which was recorded in both Transylvania and Jackson counties.

2. Deeds dated 14 December, 1903, from Sue E. Booker, née Sue E. Galloway, and her husband, William Booker, and Eboda E. Fisher, attorney in fact, to A. S. (Sherman) Owens, with full covenants and warranty and in proper form, conveying him in fee simple tbe lands embraced in said Grant No. 1155, for a consideration of $200.00, and with full description by metes and bounds as tbe same appears in said grant, which said deed was filed on 12 October, 1905, and duly registered in Jackson County on 14 October, 1905, in Book JJ, at page 31.

[136]*1363. Deed dated 30 September, 1907, from Sylvanus Galloway and others, heirs at law of Sylvester Galloway, deceased, to Sherman Owens, conveying to him all their right, title, claim, and interest in the tract of land in controversy and describing the same by metes and bounds, and expressly in the premises calls attention to the fact that Sue E. Booker and husband, William Booker, for a consideration of $200.00, had conveyed said lands to Sherman' Owens by a “certain deed of absolute conveyance, with full covenants of warranty, duly executed, which conveyance is now recorded in the register’s office of Jackson County, State of North Carolina, in Book JJ, page 31,” which said deed was recorded in Jackson County on 26 October, 1907, in Book NN, at page 489, et seq."

The signatures wore, we think, substantially proven under the well settled law. “The genuineness or falsity of disputed handwriting may bo proven by testimony of a witness, not an expert, who is acquainted with the handwriting of the person supposed to have written it, either because he had often seen him write, or who had acquired competent knowledge of his handwriting in some other approved manner. Abbott’s Proof of Facts (4 Ed.), p. 579, par. 4, and cases cited.” Brown v. Hillsboro, 185 N. C., 368 (372).

The defendant contends that the deeds are improperly registered and do not comply with N. C. Code, 1935 (Michie), secs. 997, 3305, and 3308.

The plaintiffs claim title (1) 7 years possession under colorable title, sec. 428, supra; (2) 20 years adverse possession, sec. 430, supra.

Taking the record evidence in its entirety, we cannot so hold; 'but, if error, it was not prejudicial. Bivings v. Gosnell, 141 N. C., 341. The deeds complained of had been on record for about thirty years. When this case was here before we said: “The deeds, if not color, are at least some evidence, under the ancient document rule, to be submitted to the jury on adverse possession for 20 or 30 years, under statutes before set forth. Thompson v. Buchanan, 195 N. C., 155 (160-1); Sears v. Braswell, 197 N. C., 515.” Owens v. Lumber Co., supra, 504 (513); Nicholson v. Lumber Co., 156 N. C., 59.

The defendant contends that the beginning corner, viz.: “Beginning on a chestnut in Rocky Knob Gap on Wolf Mountain,” etc., was in dispute, and that some of the evidence was competent and some incompetent. That it ought to be awarded a new trial on account of the incompetent evidence. We think not on this record.

Let us analyze: H. R. Queen, 68 years old, testified: “My business is surveying, abstracting, and cruising. I have been surveying about 50 years, and abstracting and cruising about 30 years. I was reared about 8 or 10 miles from Grant No. 1155, issued to Sylvester Galloway, in Canada Township. ... In company with S. M. Parker, I made [137]*137a survey of the property described in the complaint, and from that actual survey I prepared some maps. These are the maps. (Plaintiffs desire the jury to be given the maps and the witness be allowed to use them to illustrate his testimony.) Mr. Parker and I made the survey in May, 1935. The first call in Grant No. 1155, to Sylvester Galloway, says, ‘Beginning on a chestnut in Eocky Knob Gap on Wolf Mountain.’ I know where Eocky Knob Gap is; I.have been familiar with it 30 or 40 years, and have been there quite a number of times. . • . . I have seen that chestnut tree standing; the first time I saw it was about 25 or 30 years ago. ... I saw it standing there, 20 or 30 years ago, it was marked as a corner on the northeast and east sides. The custom in this State, with reference to marks of a corner tree, is to blaze three marks on a tree on the side the line leaves it and three on the side the closing line comes back to it. This tree was marked in that way. . . . I wouldn’t like to say a definite number of years old those marks on the tree were 25 or 30 years ago.”

S. M. Parker, admittedly an expert surveyor, gave substantially the same testimony as Queen.

In Hemphill v. Hemphill, 138 N. O., 504 (506), is the following: “The declarations of John E. Hemphill in this deed to the heirs of John Brigman, as to the location of his own line, are hearsay. They are incompetent for the reason that he was interested when the same were made, and the judge below ruled correctly in excluding them. On the second point: The evidence offered from the witness John G. Chambers on the general reputation as to the location of the divisional line: Such evidence has been uniformly received in this State, and the restriction put upon it by our decisions seems to be that the reputation, whether by parol or otherwise, should have its origin at a.time comparatively remote, and always ante litem motam. Second, that it should attach itself to some monument of boundary, or natural object, or be fortified and supported by evidence of occupation and acquiescence tending to give the land in question some fixed or definite location. Tate v. Southard, 8 N. C., 45; Mendenhall v. Cassells, 20 N. C., 43; Dobson v. Finley, 53 N. C., 496; Shaffer v. Gaynor, 117 N. C., 15; Westfelt v. Adams, 131 N. C., 379-384.” Lamb v. Copeland, 158 N. C., 136; Randolph v. Roberts,. 186 N. C., 621; Pace v. McAden, 191 N. C., 137; Brown v. Buchanan, 194 N. C., 675.

Walker McCall, a witness for plaintiffs, 85 years old, testified, in part: “Q. Now, Mr. McCall, do you know the common and general reputation in the community up there as to what was the beginning corner of Grant 1155 ? Ans.: Yes, sir. I guess I have known of that common and general reputation for 50 years. Q.

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Bluebook (online)
212 N.C. 133, Counsel Stack Legal Research, https://law.counselstack.com/opinion/owens-v-blackwood-lumber-co-nc-1937.