26 S.E. 340 | N.C. | 1896
His Honor charged the jury among other things: That the location of the beginning corner of the land in controversy is a question (584) submitted to them under all the evidence in the case; and notwithstanding it was described as being a chestnut tree, the S.E. corner of George William's lot, if it was in fact located at some other point than the S.E. corner, and the plaintiff had satisfied them of its location by a preponderance of the evidence, and had satisfied them by *361 a preponderance of the evidence that the beginning corner was at the chestnut tree described by the witness Williams and others, and running from that point according to the calls in plaintiff's grant covered the land in controversy and in possession of defendants, that they would answer the first issue "Yes," and the second issue "No." (585)
There was a verdict for the plaintiff, and from the judgment thereon defendants appealed. This is an action of ejectment, and the only question presented by the appeal is the location of a grant from the State, dated 3 February, 1868. This grant calls for a chestnut, S.E. corner of George William's lot, as the beginning corner. To locate the beginning corner at the S.E. corner of George William's lot, the grant does not cover the locus in quo. But to locate it on a chestnut near the N.E. corner of the George Williams lot, and then run with the calls of the grant, it does cover the locus in quo. At the S.E. corner of the George Williams lot there is no chestnut to be found marked as a corner, but near the N.E. corner of the George Williams lot is found a chestnut tree marked as a corner, of a date, from appearances, suited to the date of the grant. From this chestnut tree are found marked lines corresponding with the calls of the grant. The corner called for is a chestnuttree which is said to be near the S.E. corner of the George Williams lot. This description leads the parties wishing to locate this grant to expect to find the "chestnut" called for as the beginning corner at or near the S.E. corner of the George Williams lot. But no such tree can be found there, nor is there any evidence tending to show that there ever was such a tree at that point. But parol evidence may be used, (586) and marked lines proved, to locate the corner called for in the grant, or to show a slip of the pen in writing "south" instead of "north" which the plaintiff contends was the case in making out the survey and grant in this case. This doctrine of allowing the use of parol evidence and the proof of marked lines to locate and establish the lines and corners called for in a grant or deed is held in a number of the decisions of this Court. Indeed, it is common learning, fully recognized by the courts and profession. But it is never allowed to contradict and change the calls in a grant or deed.
The difficulty in this case is to locate the chestnut tree called for as the beginning corner. To do this it was competent to receive the evidence of the witness Williams, who testified that he was one of the chain-carriers when the survey was made, and that the chestnut tree in the forks of Yellow Creek was then run and marked as the corner, also to *362
receive evidence of the marked lines running from and to this chestnut, agreeing with the calls in the grant, for the purpose of showing that this chestnut was the commencing corner of the grant; and to show that the pointer called for in the grant, "S.E. corner of George Williams' lot, "was, as Pearson, C. J., says in Graybeal v. Powers,
It is the duty of the Court to tell the jury what the corner is, and it is the duty of the jury to say from the evidence where it is. Jones v.Bunker,
AFFIRMED.
Cited: Tucker v. Satterthwaite,
(588)
