24 S.E. 786 | N.C. | 1896
Lead Opinion
This case was before ns at Spring Term, 1895, and the opinion of the Court rendered at that Term is published in the 116 N. C., 859, and is now before ns upon a petition to rehear. After a careful examination of the grounds alleged in the petition, we see no reason for reversing the judgment of the Court rendered on the former hearing. In our opinion the case was then put upon correct principle, and upon the facts in the case was correctly decided.
Being of this opinion, it does not become necessary for us at this time to review any argument in the opinion as then delivered, nor to explain or modify the same, nor to review, explain or correct any authority cited in support of our former opinion. The only thing we can do is to cite additional authority to sustain the judgment of the Court as heretofore rendered. The opinion of the Court
But, admitting all this, as we did in the former opinion, there are two infirmities in defendant’s contention that are fatal to him. First, the Blount grant does no.t call for the “ Stokley Donelson line,” and secondly, the “ Stokley Donelson line ” was not established. The call is 3 0 chains south to a stake, supposed to be in Stokley Donel-son’s line. If the call had stopped at the word stake, we suppose no lawyer would have contended that the line south from the jniinted rock did not end when the 360 chains called fqr gave out. Then how can this be changed by the fact that it was supposed this stake was in Stokley Donelson’s line, when in fact it was not? The Stokley Donelson line is not the point called for, but a stake at the south end of a line 360 chains in length, commencing at the painted rock. The term “ supposed to be in Stokley Donelsoids line,” must bo treated as surplusage, or as a term intended in explanation of or qualifying this point. Suppose I sell to A. my gray horse, Jackson, supposed to be twelve years old ; but it turns out he is fifteen years old. I was mistaken in my supposition, but A. gets the horse and nothing more. Or I sell to A. my gray horse, Jackson, which I supposed to be at Stokley Donelson’s,
As we have said, this is no new doctrine. In Harry v. Graham, 1 D. & B., 76, where the call of the grant was to a black oak, near the line of another tract of the grantee, the black oak could not be found, and the distance called for gave out thirty poles short of the line of the grantee’s other tract; and it was held that the call, near to, would not carry the line thirty poles further, and that the line must terminate at the end of the distance called for.
In Carson v. Burnett, 1 D. & B., 546, it is held that course and distance called for must control unless there is another call more definite and certain than course and distance. In Kissam v. Gaylord, Busbee, 116, it is held that course and distance must control, unless there is some other description or call in the conveyance that is more certain than course and distance. In that case it was claimed by defendant to be a deed for a lot 200 feet square in the town of Plymouth, and the second call in the deed was along Jefferson street 200 feet, thence to the north-west corner of the “ Winchell lot,” and the lot being granted was known as the “ Winohell lot.” To stop.at the call of 200 would lack a few feet of going to the south-west corner, and would not cover the locus in quo. And it was held that the line in the second call must stop at the end of 200 feet.
In Spruill v. Davenport, Busbee, 134, it. is held that “ course and distance govern in questions of boundary, unless controlled by some more certain description.” In this case the call was “ to Benjamin Spruill’s line and thence along his line and Thomas Mackey’s line 300 poles to Greenland Swamp.” The plaintiff undertook to
In Cansler v. Fite, 5 Jones, 424, in a call in a deed south 300 poles to a Spanish oak in or near Richmond's line, and the Spanish oak could not be found, and the distance called for gave out 30 poles before Richmond's line was reached, it was held that the call “ in or near Richmond’s line ” was too indefinite and uncertain to change course and distance, and that the line terminated at the end of the distance called for.
Mizell v. Simmons, 79 N. C., 182, cited in tin* former opinion of this Conrt must be overruled or the former opinion sustained. This oprnion was simply cited in the former opinion of the Court, and, as that opinion has not been satisfactory to the counsel of defendant, we feel called upon to make some quotations from this well-considered opinion, bearing directly on the point under consideration in this ease.
“ A call in a grant for a line beginning at the mouth of a gut supposed to be J.’s bounds, running along his supposed line south 300 poles in the pocosin to or near the head of Speller’s creek, &c., indicates that there was no established or known line, and, the course and distance being certain within'themselves, must govern.”
“ In such case the calls, being from an established corner, south 300 poles to the pocosin, to or near the head of Speller’s creek, the conrse and distance must prevail, without*874 being controlled by the words to or near the head of Speller’s creek.” “ In such a case it was unnecessary as a matter of fact to ascertain where was the head of Speller’s creek, because, as a matter of law, the terminus of the line was at the end of the course and distance called for.”
These quotations are taken from the head note in Mizell v. Simmons, and sustain the view7 taken in the opinion that the call of 360 chains south to a stake, supposed to he in Stokley Donelson’s line, cannot be used to control course and distance, which is considered certain in the absence of something more certain ; and we see from the authorities cited that this supposition contended for by defendant is not more certain — is not certain at all. This might end this examination of defendant’s petition to rehear.
But we have said there was another infirmity in the claim of defense: That defendant had not established Stokley Donelson’s line at. the point where he claims they intersect. And this leads us to a short review of what was said in the former opinion as to marked lines tending to .locate the Stokley Donelson grant. We are somewhat unprepared at this criticism of the opinion, when no such grounds were taken in a vigorous dissenting opinion by one member of the Court. But still, if injustice lms been done the defendant, by neglect or inadvertence to the facts, such wrong should be corrected. Upon a review of the evidence we find that a Mr. Gudger and some other witnesses testified as to seeing some marks in former surveys, about 1856. But. it seems that R. S. Tweed was appointed by the court to make an official survey of these lands, and upon the trial the defendants introduced him as a witness, and he testified as follows: “I began to survey at Index 28, (see official plat,) ran east to 29, ran south to 30, then 17 chains to 31, thence north 560 chains to 82,
The former opinion of the Court has been criticised for indulging in some speculation as to the history of what is known and called speculation grants. And it was intimated that the Court was not disposed to give these speculators the same measure of justice that it gives others. We do not think the Court is justly liable to this criticism. We have no idea that there is a single member of this Court who would not give such speculators every foot of land they thought them justly entitled to, and not one of them who would give them a foot more. All we know about the titles in this case is from, deeds and grants offered in evidence. The plaintiff offered a grant dated in 1890, which is admitted covers the land he claims. The defendant then offered a grant to Blount in 1795, a grant to Stokley Donelson in 1790, and a deed from Sawyer to William Johnston, and we suppose the defendants claim under Johnston or his heirs.
What we said amounts to no more than had been said by this Court before. In Cherry v. Slade, 3 Murphy, 82, Taylor, C. J., delivering the opinion of the Court said : “ In many cases, surveys were in no otherwise made than upon paper.” This was said in reference to early grants. And in the case of Literary Board v. Clark, 9 Ired., 58, Ruffin, C. J., delivering the opinion of the Court, in speaking of the omission in a plat to note a water-course called for in the grant, said: “The omission renders it highly probable that the plat was made without actual survey, and thus deprives it of whatever credit it might •otherwise be entitled to.” This was the view presented in the opinion heretofore rendered, that in all probability the Blount grant and Donelson grant were both located
Error.
Dissenting Opinion
(dissenting): The two calls in the grant to, John Gray Blount, offered by the defendant, and which gave-rise to the controversy, were: “ South 360 chains to a stake-supposed to be in Stokley Donelson’s line, thence with his line 390 chains to his north-east corner.” The learned judge and exjoerienced real-estate lawyer who tried the-case below was asked to instruct the jury that those two-calls taken together were too vague and uncertain to vary course and distance, and should therefore have been run 360 poles from the admitted beginning at Paint Bock, and thence east from the point where the distance gave out, 390 poles. Instead of complying with the request the judge told the jury that the first call, “ 360 chains to a stake near Stokley Donelson’s line,” standing alone and of itself could not be extended beyond the actual distance,, and therefore if counsel for the defendant contended that it should have been extended, that question was not raised
Pretermitting the inquiry as to the sufficiency of the evidence submitted to the jury to determine whether there was either a marked or a mathematical line of the Stokley Donelson survey located so that an extension of the first line from the end of the distance ('360 poles) would intersect it, we are confronted at the outset with the question whether the first and second call, construed together, oughtto havebeen run — as his Honor told the jury — to such line; if established satisfactorily to them in either way.
1. Addressing the argument to this point first, we will find that our Reports furnish a long line of authorities bearing directly upon it and beginning as far back as the Conference Reports, when the land law of North Carolina, in its formative period, was shaped by jurists whose good judgment and practical knowledge of surveying, as well as clear apprehension of legal principles, fitted them in an eminent degree for the task of adapting the expansive principles of the common-law to a new subject in a new country.
In the early case of Doe on the demise of Sandifer v. Foster, 1 Hay., 283, the call next to the last of a deed was for a white oak, (which stood a half mile from the river,) and the last call was “ thence along the river to the beginning.” The Court held that the line should be extended from the white oak a half mile, and then run with the river to the beginning, though by so running, instead of
In Hartsfield v. Westbroook, 1 Hay., 258 (297), the call was from a tree not at a swamp to another not at the swamp down the swamp to the beginning. The Court declared the time line to be to the swamp from the first tree, then with the swamp to a point opposite the second tree. The two cases last mentioned are cited with approval in Baxter v. Wilson, 95 N. C., 137.
This principle is familiar to layman and lawyer in the practical application of it upon which a call from one corner tree to another on the bank of a stream runs ad filum aquw to a point opposite the corner called for and then to it by a course at a right angle with the general direction of the stream between the two points.
The rule laid down in the early case of Bradford v. Hill, 2 Hay., 30 (22), was that courses and distances must be observed except where a natural boundary is called for and shown, or when marked lines and corners can be shown tv have been -made at the original survey.
When the call is from one known corner to another, by a certain course and distance “ but with ” a certain public road, the line must be varied from course and distance so as to run to and with the public road ; and, as between two branches of the road, it is for the jury to determine which was the public, road when the deed was executed. Hough v. Horn, 4 D. & B., 228. A striking instance of the rule requiring an off-set to be made to intersect with and run with marked lines in order to fulfill all of the descriptions of a deed, is found in Blount v. Benbury, 2 Hay., 542 (353), where the call was running south 85 east with Beasley’s and Blount’s lines, Blount’s line being located
2. If it is undeniably true, as the authorities cited and others which might be added, show, that the call thence with Stokley Donelson’s line would prolong the first line till it should intersect that line, and then run with it, if it could be established to the satisfaction of the jury, we are brought to the discussion, first, of the question whether the judge below erred in holding that there was evidence, which the defendant had a right to demand should be sub
It was contended that the testimony that a stump was shown which was reputed tobe a corner was not evidence to go to the jury. In Murray v. Spencer, 88 N. C., 357, it was held that a stump without a mark upon it, but which had been pointed to as a corner by reputation for 30 years, was some evidence that a linchad been run corresponding with the first call of the grant, from that stump as a beginning, and citing Icehour v. Rives, 10 Ired., 256, (where he said the very point was decided,) Justice RuffiN added: “ This must of necessity be so, or else the very flow of time, which should give sanctity and security to titles, will ultimately undermine them by destoying the perishable objects denominated as their boundaries and removing the witnesses acquainted with the localities.” There being some evidence of marked lines, the question was properly submitted to the jury, and if they found, even upon evidence of reputation, that there were old marked line trees along the Donelson line as contended by defendant, and believed they indicated the location of the true Donelson line, the first line ofthe Blount grant should have been extended. “ In questions of boundary, marked lines or trees are more certain than course and distance, and should control them.” McNeill v. Massey, 3 Hawks., 91. Judge HkNdeesoN said in this case: “'Whether they (the lines called for by adjacent patents) proved that marked trees were once
How is a mathematical line, or one that can be established “ with mathematical certainty,” (which the trial judge properly hold to be synonymous) to be defined ? Evidently “mathematical” is used in the sense of “demonstrable by the use of mathematics,” or by the rules of surveying, which is a branch of the science of mathematics. The question as presented by the learned reporters in Beckton v. Chesnutt, supra, was whether a branch as a distant natural object was to bp followed “in preference to the mathematical description by course and distance.” Id certum est quod oertwm reddi potest is the maxim which furnishes the test of the sufficiency of a description in a deed of conveyance; (Mann v. Taylor, 4 Jones, 273) and hence where there is a single corner .which can be identified and located, the surveyor can run from that, •when the course and distance of other calls are given, and establish the location of all the other lines and corners by
In the former opinion the Court was inadvertent to the law as well as the facts in holding that the number of acres included in the boundary as run, upon the different theories of the parties, could be considered by the jury, much less by the court, in coming to a conclusion as to the location. At most, quantity was but a circumstance to be considered by the jury for what they deemed it worth, not by the court as conclusive of the location of a line as a question of law. What are boundaries is a question of law. Where they are to be located by quantity or other competent evidence is to be determined by the jury. “ If one grant to S. S. 1,000 acres and no more, according to certain lines and include 2,000 acres, (said the Court in Reddick v. Leggatt, supra,) the 2,000 acres pass, because the huts and bounds are more certain than the quantity.” Bo the buts and bounds, if fixed by the jury (as it was their province to do) so as to extend to the Donelson line, are more certain than quantity, and upon that principle must control. In Miller v. White, Taylor’s Rep., 309, (Battle’s Ed., 135,) a line calling for +0 poles was hold to be properly located by extending it 40 poles fuither, or double the distance, to reach a line called for. In Johnston v. House, 2 Hay., 301, though it appeared that the surveyor made his certificate extending a line only 80 poles instead of 160, when he had made a line in his certificate, in order to reduce the acreage from 712 to that called for, (640 acres,) the Court held
But there are two other reasons why quantity should not be considered in this case : First, th'e land inside of the boundary which had been granted by older patents was expressly excepted, and the area of that is left by the evidence uncertain, though the burden was upon the plaintiff to show fraud, if it was competent for him to prove it. In the second place, it was in evidence that the surveyor made a mistake in running another line that, if corrected, would have extended the call east 360 chains, much nearer to the line claimed by the defendant to be Donelson’s line, and would have reduced the acreage correspondingly. For the' reasons given the charge of the court below was not erroneous, and the judgment ought to have been affirmed.
Lead Opinion
AVERY, J., dissents, arguendo, in which CLARK, J., concurs.
This case was before us at Spring Term, 1895, and the opinion of the Court rendered at that term (Brown v. House,
Being of this opinion, it does not become necessary for us at this time to review any argument in the opinion as then delivered, nor to explain or modify the same, nor to review, explain or correct any authority cited in support of our former opinion. The only thing we *546 can do is to cite additional authority to sustain the judgment of the Court as heretofore rendered. The opinion of the Court delivered (871) at Spring Term, 1895, enunciates no new doctrine, as the petitioners seem to think it does. It recognizes the doctrine that course and distance contained in a deed or grant may be controlled by another call contained in the deed or grant that is more certain than course and distance. It also recognizes the fact that a call for another tract of land has been held by this Court to be sufficient to vary course and distance, when the line called for was a known and established line at the date of the deed or grant calling for the same, and that when a line so called for is established it will control, unless there are reasons to show that it was not in fact the line called for.
But admitting all this, as we did in the former opinion, there are two infirmities in defendant's contention that are fatal to him: First, the Blount grant does not call for the "Stokley Donelson line," and, secondly, the "Stokley Donelson line" was not established. The call is 360 chains south to a stake, supposed to be in Stokley Donelson's line. If the call had stopped at the word "stake," we suppose no lawyer would have contended that the line south from the painted rock did not end when the 360 chains called for gave out. Then how can this be changed by the fact that it was supposed this stake was in Stokley Donelson's line, when in fact it was not? The Stokley Donelson line is not the point called for, but a stake at the south end of a line 360 chains in length, commencing at the painted rock. The term,"supposed to be in Stokley Donelson's line," must be treated as surplusage or as a term intended in explanation of or qualifying this point. Suppose, I sell to A my gray horse, Jackson, supposed to be twelve years old, but it turns out he is fifteen years old. I was mistaken in my supposition, but A gets the horse and nothing (872) more. Or I sell to A my gray horse, Jackson, which I supposed to be at Stokley Donelson's, and it turns out that he is not at Stokley Donelson's, but at William Johnston's. I was mistaken in my supposition that the horse was at Stokley Donelson's, but A gets the horse, just the same as if I had not been mistaken as to where he was.
As we have said, this is now new doctrine. In Harry v. Graham,
In Carson v. Burnett,
In Spruill v. Davenport,
In Cansler v. Fite,
Mizell v. Simmons,
"A call in a grant for a line beginning at the mouth of a gut, supposed to be J.'s bounds, running along his supposed line south 300 poles, in the pocosin, to or near the head of Speller's Creek, etc., *548 indicates that there was no established or known line, and, the course and distance being certain within themselves, must govern.
"In such case, the calls being from an established corner, south 300 poles to the pocosin, to or near the head of Speller's Creek, the course and distance must prevail, without being controlled by the (874) words to or near the head of Speller's Creek. In such a case it was unnecessary, as a matter of fact, to ascertain where was the head of Speller's Creek, because, as a matter of law, the terminus of the line was at the end of the course and distance called for."
These quotations are taken from the headnote in Mizell v. Simmons, and sustain the view taken in the opinion that the call of 360 chains south to a stake, supposed to be in Stokley Donelson's line, cannot be used to control course and distance which is considered certain, in the absence of something more certain and we see from the authorities cited that this supposition contended for by defendant is not more certain — is not certain at all. This might end this examination of defendant's petition to rehear. But we have said there was another infirmity in the claim of defense: That defendant had not established Stokley Donelson's line at the point where he claims they intersect. And this leads us to a short review of what was said in the former opinion as to marked lines tending to locate the Stokley Donelson grant. We are somewhat unprepared at this criticism of the opinion, when no such grounds were taken in a vigorous dissenting opinion by one member of the Court. But still, if injustice has been done the defendant, by neglect or inadvertence to the facts, such wrong should be corrected. Upon a review of the evidence we find that a Mr. Gudger and some other witnesses testified as to seeing some marks in former surveys, about 1856. But it seems that R. S. Tweed was appointed by the court to make an official survey of these lands, and upon the trial the defendants introduced him as a witness, and he testified as follows: "I began to survey at index 28 (see official plat); ran east to 29; ran south to 30; then 17 chains to 31; thence north 560 (875) chains to 32; thence east 1680 to 23; thence about 600 poles to the beginning. At the beginning I found some linn stumps on a branch. Plaintiff was present and showed me the stumps — one stump 1 1/2 feet through — and logs, in what looked like a spring. I reversed the line and ran to north 23, and found same land, marked about five or six years old; from 23 we ran west to 22, and plaintiff said that he and I. N. Ebbs had run these lines, and ran them about as I ran, and showed me marks they made, and I understood that he said they were tracing the Donelson grant; found no landmarks, except marks made by Brown and Ebbs; this line crossed Spring *549 Creek." We therefore feel fully authorized to say that not a single marked tree is shown, going to establish the Donelson grant, unless it is to establish the beginning corner. The defendant claims that the Blount grant extends to an east and west line, between 22 and 23, some twenty miles long, where no tree or anything else was found, at either 22 or 23, establishing a corner, and not a marked tree was found on the line, except a few made by Ebbs five or six years ago. And this is the mathematical line that plaintiff claims should govern and control the call in the Blount grant and carry it a mile and a quarter farther after the distances gives out.
Carson v. McCrary, supra, relied on by defendants, is so different from the case before the Court that it hardly seems necessary to distinguish them. There Pearson, C. J., speaks of the mathematical line. But that opinion is put on the ground that the corners at both ends of the line were known, and there was nothing to do but to run a straight line between these known corners. In this case the plaintiff claimed under a grant for 300 acres and the defendant claimed under a junior grant for 100 acres, but calling to commence and to run with plaintiff's line. This being so, the Court properly (876) held that defendant's land ran to and with plaintiff's line. That is not our case.
The former opinion of the Court has been criticised for indulging in some speculation as to the history of what is known and called "speculation grants." And it was intimated that the Court was not disposed to give these speculators the same measure of justice that it gives others. We do not think the Court is justly liable to this criticism. We have no idea that there is a single member of this Court who would not give such speculators every foot of land they thought them justly entitled to, and not one of them who would give them a foot more. All we know about the titles in this case is from deeds and grants offered in evidence. The plaintiff offered a grant, dated in 1890, which is admitted covers the land he claims. The defendant then offered a grant to Blount in 1795, a grant to Stokley Donelson in 1790, and a deed from Sawyer to William Johnston, and we suppose the defendants claim under Johnston or his heirs.
What we said amounts to no more than had been said by this Court before. In Cherry v. Slade,
Petition Dismissed.
