Dennis v. Hearn

³⁹³ Bond, C. J., delivered the opinion of the Court. This appeal is from a judgment in an action of trespass hy owners of one of two adjoining tracts of land against the owner of the other tract, arising out of a dispute over the true location of the dividing line. The plaintiffs, now appellees, are heirs at law of their father, Elijah S. Hearn, who owned and lived on one of the tracts for about forty years, until near the time of his death, and the defendant, now appellant, is present owner of the adjoining tract, which had been owned hy Melissa C. Hearn, wife of Elijah S. Hearn, and mother of the appellees, from 1887 until she and her husband conveyed it, in 1917, to a predecessor of the appellant in title. This latter tract had been devised to the mother hy her father, Samuel Q. White.

There are ten exceptions presented, but we find no ground for reversal in any of the rulings excepted to. The first and second exceptions arise from the admission of testimony by one of the plaintiffs, H. Lloyd Hearn, forty-seven years old, of declarations made hy his father, since deceased. Eirst, he testified that he had known the line between the two properties for over thirty years, and at the direction of counsel he showed the line !as he knew it to the jury. There was no objection made to this testimony.

Then questioned further, he added that he knew that line from working around it all his days, and from his father. “I got what I know about the line,” he said, “from what my father has shown me from a hoy up.” This was merely introductory, and unobjectionable. He was then asked to show the line which his father showed him as the dividing line, and which lie had pointed out to the surveyor who made a resurvey. And to the allowance of that question, and the answer to it, the defendant excepted, contending that the father was at the time so interested in the location of the line that his declarations could not be received. Whether designations of a boundary line between land owned by a husband and land owned by his wife, made by the husband, since deceased, to members of his family, is rendered inadmissible by such interest as he had in that line, is, perhaps, questionable. ³⁹⁴ Cadwalader v. Price, 111 Md. 310, 316 ; Peters v. Tilgh man, 111 Md. 227, 235 ; Howell v. Tilden, 1 H. & McH. 368 ; Jarrett v. West, 1 H. & J. 501 ; Hall v. Gittings, 2 H. & J. 380, 393 ; Casey v. Inloes, 1 Gill, 430, 492 ; 19 Ann. Cas. 551; 134 Am.

St. Rep. 620 , 621. But we need not decide the question in disposing of this appeal. Even if this evidence, taken by itself, should appear open to the objection made, still, the witness having already testified to the line as he knew it, and pointed it out to the jury, all without objection or motion to strike it from the record, the mere repetition of the testimony after the statement that the witness’ information came from his father, would not, in our opinion be sufficient to justify a reversal. The likelihood of prejudice by such repetition to the trial of the appellant’s case on the evidence properly before the jury, is too slight.

We, therefore, hold that there was no reversible error in the rulings brought up by the first and second exceptions. The ruling brought up by the third exception is closely similar. The witness had testified that when Mr. Cjwus Ennis, appellant’s predecessor in the title, was about to buy the mother’s land from her, he, the witness, at Mr. Ennis’ request, went around the land, and showed him where the boundaries and dividing-lines were, and showed him, as he said, “all the marked-trees around the farm and showed him the lines as I had learned all my days.” Shortly after-wards he was' asked, “Did yon show him anything, trees, posts 'or anything on what you claim to be the dividing line between your father’s land and your mother’s land ?” This was objected to> because founded, as the witness’ previous testimony had shown, upon his father’s designation of the boundary in dispute; but the court admitted the question and answer. This, too, seems to this Court a mere repetition of testimony already received without objection, and to be without sufficient prejudice to justify a retrial, even if improperly permitted.

The fourth exception is grounded upon an objection to a question to the same witness as to the dui’ation of his ³⁹⁵ father’s possession of his land. The witness answered, “I don’t know the exact year, but longer than I can remember.” To the admission of this- evidence it is objected that, if it is offered to prove title to the disputed area by adverse possession, it is irrevelant because it relates to the