(341) Before the jury was empaneled, the defendant produced and proved a disclaimer executed by the lessor Kethly, and moved the court to strike from the declaration the count upon his demise, which his Honor refused.
Upon the trial the will of one Richard Kethly was offered by the plaintiff as a link in the title, upon that count of the declaration on the demise of John Kethly. This was objected to by the defendant, because the probate was not properly certified, and the objection was sustained by the judge. Evidence was then offered for a descent from Richard Kethly to the lessor John, which was objected to by the defendant, because it appeared that Richard Kethly had published a will, by which he might have devised the land in dispute to some other person. But his Honor ruled that he could not judicially recognize the existence of the will, unless it was produced with a proper certificate of its probate, and that in the absence of such proof it must be taken that Richard Kethly died intestate.
The principal question in the cause was the boundary between two adjoining tracts of land, one of which the defendant claimed under a *Page 279 grant to one Benton, issued in 1761 — the other was claimed by the lessors of the plaintiff under a grant which issued to one Whitfield, in the year 1780, and which called for the line of the grant to Benton. A line of marked trees, corresponding in age to the date of the grant to Benton, was proved to exist, and the lessors of the plaintiff contended that it was the true line of that grant. The defendant contended that this line was marked when the grant to Whitfield was surveyed.
His Honor instructed the jury that even if they were satisfied that the line of marked trees was made as the boundary of the land granted to Whitfield, it was a circumstance, taken in connection with other circumstances, which they might consider in ascertaining the true line of the grant to Benton, in the absence of all proof that there was any dispute as to the true line of the grant.
A verdict was returned for the plaintiff, and the defendant appealed. We have, in questions of boundary, given to the single declarations of a deceased individual as to a line or corner the weight of common reputation, and permitted such declarations to be proven, under the rule that in questions of boundary, hearsay is evidence. Whether this is within the spirit and reason of the rule, it is now too late to inquire. It is the well established law in this State. And if the propriety of the rule was now res integra, perhaps the necessity of the case, arising from the situation of our country, and the want of self-evident termini of our lands would require its adoption. For although it sometimes leads to falsehood, it more often tends to the establishment of truth. From necessity we have in this instance sacrificed the principles upon which the rules of evidence are founded. But we have never, as far as I know, permitted the declaration of the owner of the land, however ancient, to be used in behalf of those claiming under him, or even of those claiming the same land under a different title. We have also received private deeds and mesne conveyances, calling for the line of another tract, when of ancient date, so that the parties to them could not be produced as evidence of boundary, under the idea that they are common reputation. A fortiori should grants from the State be admitted, for they are something more than the declaration of private individuals. They are the declarations of the public surveyor, whose duty it is to call for and survey, by old and former lines, and not them in his plot, although in practice we know that his description is very frequently taken from the enterer. But grants are stronger evidences than deeds between individuals. *Page 280
I apprehend, however, that in no case in analogy to the rule excluding the declarations of the owner would the deed of or even a grant to the owner calling for the lines of another tract be admitted in favor of one claiming under that grant or deed, or even in favor of one (343) claiming under another grant, calling for the lines of that made at the time, when such party to the deed or grant was owner of the other tract. But this case goes even farther than one deed called for the lines of another tract, as preexisting lines. For the judge instructs the jury, even if they were satisfied that the marked line was in fact made for the grant of Whitfield (that is, the junior patent, and the one under which the plaintiff claimed, and who insisted on its description as evidence), it was a circumstance which they had a right to consider in connection with other circumstances, in ascertaining the true line of the grant to Benton (that is, the defendant's), in the absence of all proof that there was then any dispute as to the true line of the latter grant. This is making a line where none was before, by the mere act of a party claiming it to be the true line, and making evidence for himself more emphatically than by declaring what a thing is which is already in existence. As to there being then no dispute about it, this rule relates to hearsay from anyone, and excludes it, if post litem motam, coming from anyone, but never lets in the declaration of the party, made at any time, whether post or ante litemmotam.
Upon the first point to dismiss the suit we have nothing to do. On the second, with regard to the will, the judge was clearly right, for the reasons which he gave.
PER CURIAM. Judgment reversed.
Cited: Toole v. Peterson, 31 N.C. 185; Mason v. McCormick, 75 N.C. 266;Caldwell v. Neely, 81 N.C. 116; Mason v. McCormick, 85 N.C. 228;Foy v. Currie, 91 N.C. 439; Bethea v. Byrd, 95 N.C. 311; Deming v.Gainey, ibid., 534; Roberts v. Preston, 100 N.C. 248; Euliss v. McAdams,108 N.C. 513; Shaffer v. Gaynor, 117 N.C. 20; Hill v. Dalton, 136 N.C. 340;Yow v. Hamilton, ibid., 359; Hemphill v. Hemphill, 138 N.C. 506;Hill v. Dalton, 140 N.C. 16; Bland v. Beasley, ibid., 630; Lumber Co. v.Branch, 150 N.C. 241; Lamb v. Copeland, 158 N.C. 138; Sullivan v.Blount, 165 N.C. 10; Lumber Co. v. Lumber Co., 169 N.C. 95; Singletonv. Roebuck, 178 N.C. 203; Hoge v. Lee, 184 N.C. 50. *Page 281
(345)