The evidence of tbe declarations of certain persons as to tbe location of tbe Goodbue corner was incompetent because hearsay, and should have been excluded.
“Tbe restrictions on hearsay evidence of this character — declarations of an individual as to tbe location of certain lines and corners — established by repeated decisions, are: that tbe declarations be made ante litem motam; that tbe declarant be ' dead when they are offered, and that be was disinterested when they were made.” Hemphill v. Hemphill, 138 N. C., 506.
None of these requirements were met by tbe plaintiff, and as tbe declarations are condemned under tbe general rule excluding hearsay evidence, it was its duty to prove tbe facts bringing tbe evidence within tbe exception.
In Dobson v. Finley, 53 N. C., 499, Chief Justice Pearson says: “In tbe latter, to wit, hearsay evidence, it is necessary as a preliminary to its admissibility to prove that tbe person whose statement it is proposed to offer in evidence is dead; not on tbe ground that tbe fact of bis being dead gives any additional force to tbe credibility of bis statement, but on tbe ground that if be be alive be should be produced as a witness”; and this language is quoted with approval in Shaffer v. Gaynor, 117 N. C., 15; Westfelt v. Adams, 131 N. C., 379, and Yow v. Hamilton, 136 N. C., 358.
Tbe question discussed by the defendant as to tbe right to maintain an action to remove a cloud from title, when tbe deeds of tbe defendant, if located according to tbe plaintiff’s contention, are outside tbe lines of tbe plaintiff’s deeds, is not presented, because the deeds of tbe defendant cover a part of tbe land in tbe .deeds of tbe plaintiff in any event.
For tbe error pointed out there must be a new trial.
New trial.