Opinion
(July Term, 1816.)
The rule of admitting hearsay to prove the boundaries of land must be confined to what deceased persons have said; for if they are alive at the time of trial, though out of the State, their depositions must be taken.
TRESPASS quare clausum fregit. The plea, "Liberum tenementum." The dispute is altogether as to the boundaries of two tracts of land.
The declarations of a man by the name of Wingate, who lived on the land upwards of twenty years ago, and who was the tenant and son-in-law of the person under whom the defendant claims, were offered in evidence by the plaintiff and admitted by the court.
The jury found a verdict for the plaintiff, and a motion was made for a new trial, on the ground that the evidence of Wingate's declarations should not have been admitted, as he is now alive, but lives in the State of Tennessee, and beyond the process of this Court.
The rule which allows hearsay evidence to prove the boundaries of lands restricts it to the declarations of deceased persons. We do not conceive that the circumstance of the witness living out of the State authorizes any relaxation of the rule. The testimony of the witness, though living in Tennessee, might have been procured by deposition. The declarations of the witness, not on oath, was not the best evidence which it was in the power of the party offering it to adduce.
We are, therefore, of opinion that the rule for a new trial should be made absolute.
New trial.
Cited: Hartzog v. Hubbard, 19 N.C. 243; Whitehurst v. Pettipher, 87 N.C. 179; Yow v. Hamilton, 136 N.C. 359.
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