Hemphill v. Hemphill.

Hoke, J., after stating the facts: The rights of the parties to this controversy were made to depend upon the correct location of the divisional line between Benjamin C. and John E. Hemphill, under ivliom the defendants claim; and the defendants contend that the true location of this line runs from the “mouth of the branch to the point of the ridge and thence in a northeasterly direction up the ridge to the Vance dine”. In order to establish this position, the defendants offered, first, the deed from John E. Hemphill, now dead, to the heirs of John Brigman, bearing date November 18, 1866, as a declaration of John E. Hemphill on the correct location of the line in dispute.

The defendants further proposed to prove by a witness, John G. Chambers, that he had known the land in controversy for 50 years; that he knew the general reputation in that community as to the true location of this divisional line, and that according to such reputation the same ran along the *506 top of this ridge, and was placed as tbe defendants claimed.

On objection by tbe plaintiffs, tbis testimony was beld incompetent and tbe defendants excepted.

It is the law in this State that under certain restrictions both hearsay evidence and common reputation are admissible on questions of private boundary.

Sasser v. Herring, 14 N. C., 340 ;

Shaffer v. Gaynor, 117 N. C., 15 ;

Yow v Hamilton, 136 N. C., 357 .

The restrictions on hearsay evidence of tbis character — declarations of an individual as to the location of certain lines and corners — established by repeated decisions, are: That the declarations be made ante litem motam;

that the declarant be dead when they are offered, and that he was disinterested when they were made.

Bethea v. Byrd, 95 N. C., 309 ;

Caldwell v. Neely, 81 N. C., 114 .

Tbe declarations of John R. Hemphill in tbis deed to the-heirs of Jobn Brigman, as to tbe location of bis own line, are hearsay. They are incompetent for tbe reason that be was interested when the same were made, and tbe 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. Tbe proposed evidence comes fully up to the requirement of these decisions. Tbe *507 reputation is attached to a place reasonably definite and tbe witness stated that he had known the land for fifty years; knew the general reputation in the community as to the line in dispute and where such line was placed by that reputation. We think it appears by fair intendment that the reputation offered had its origin ante litem motam and at a time sufficiently remote.

There was error in rejecting the proposed evidence which entitles the defendant to a New Trial.