This is an action of trespass, and to recover possession of land. Both parties claim under a common source of title. It is admitted that the plaintiffs are owners of the first two tracts of land described in the deed from Biggs and Jones, trustees, to W. H. and Exum Carstarphen, by virtue of the deed to them from the heirs of the said Carstarphens.
The sole question at issue is whether the deed from the Carstarphen heirs to H. A. Coltrain embraced the third or 50-acre tract of land described in the deed from said trustees. All the evidence is to the fact that the 50-acre tract of land was timber land. The original answer practically admitted that the deed under which the plaintiffs claim embraces the 50-acre tract, and the answer sets up a demand for reformation on the ground of mutual mistake or mistake of the draftsman in drawing the deed. No evidence was introduced to that effect, and the sole question remains whether the deed under which the plaintiffs claim embraces said 50-acre tract.
Mary F. Coltrain, the plaintiff, claims under the deed from her husband, H. A. Coltrain, who is now confined as a lunatic in the asylum at Raleigh, and who is represented by his wife, Mary F. Coltrain, who sues as next friend and also in her own behalf.
Exception 1 is that J. L. Coltrain, witness for the plaintiff, was asked on cross-examination: "Did your father make a deed to you? Yes. Did the deed to you cover part of the land described in the deed to your father?" On objection, the last question was properly ruled out. The deed will speak for itself. The defendants do not contend that any part of the 50-acre tract was in that deed. And, indeed, they deny that the father ever owned that tract. It is immaterial whether any of the other lands were included in the deed to the witness. Besides, the error, if any, was cured by the subsequent admission of the deed itself, which was put in evidence by the defendants.
(44) Exception 3. S.C. Carstarphen, one of the defendants, was asked: "What conversation, if any, did you have with H. A. *Page 67 Coltrain some time after execution of your deed to him, relative to his ownership of the 50-acre tract of land or any act of possession exercised by him?" This question was properly excluded by the court, on the objection of the defendant. H. A. Coltrain was insane, and the plaintiff Mary F. Coltrain claims under her husband and also sues as his next friend. Revisal, 1631, excludes this testimony. Bunn v. Todd, 107 N.C. 267.
Exception 4. The defendant C. D. Carstarphen was asked: "What conversation, if any, just prior to the institution of this action, did you have with J. L. Coltrain, son of H. A. Coltrain, in which you informed him of a prior conversation with his father in which his father said that he did not claim the 50-acre tract, had never bought it, and had never listed it for taxation or paid taxes thereon." This question was properly excluded, upon objection of the plaintiff. The conversation is hearsay, and, besides, is barred by Revisal, 1631.
Exception 6. The court declined to charge as follows: "There are not sufficient acts of ownership upon part of plaintiff to show title by possession," without adding, "provided you find that the 50-acre tract is not covered by the deed from Carstarphen to Coltrain." The addition was proper. There is no claim that possession had ripened into title, but the foundation of the action is the deed.
Title being out of the State, and both parties claiming under a common source of title, a deed covering the 50-acre tract, then possession followed the true title. There was, however, evidence of possession, if the plaintiff had been put to show seven years possession under a deed as against strangers. J. L. Coltrain testified that his father went into possession of all these tracts in January, 1899, after the deed was made to him. But whether he went into possession or not makes no difference if the deed covered this land, for the deed under which the plaintiff claims was executed by the defendants or those under whom they claim.
Exceptions 2 and 5 are to the refusal of the court to (45) nonsuit, in which there was no error. There was evidence that the 50-acre tract was within the deed to Coltrain.
The contention that the failure of the 50-acre tract to bound on the other lands, as described in the deed, is a fatal defect, cannot be sustained. Bradshaw v. Ellis, 22 N.C. 20, cited Austin v. Austin,160 N.C. 369.
No error.
Cited: Bachelor v. Norris, 166 N.C. 509 (5f); S. v. Reid, 178 N.C. 748 (2g). *Page 68