26 S.E. 156 | N.C. | 1896
The Court instructed the jury that when a grant is located by contemporaneous marked lines those contemporaneous marked lines govern and control its boundary and fix the location so as to supersede other descriptions. We see no merit in the exception to this as a legal proposition. A deed is a contract, and the highest evidence (599) of the identity of the subject-matter of it, where there is conflicting testimony as to its true location, is proof of the consent of two minds that certain marked lines or corners should constitute the boundary. Shaffer v. Gaynor,
The location of Tate's line, as contended for by the defendant, was not admitted by the plaintiff. On the contrary, it was insisted that the deed the calls of which the surveyor ran were those of Benson and Tate, not a Tate grant, and further that the corner claimed by the defendant to be a post oak was in fact not in but south of the east and west line of the Benson and Tate grant.
The Court did not err in leaving the jury, upon the conflicting testimony, to determine which was the true post oak corner, and thus to settle, as it was their province to do, the first question of fact upon which the whole testimony hinged. The plaintiff introduced grants and connected himself with them by mesne conveyances, and also testimony tending to show that his grants and conveyances embraced the land in controversy, which is indicated on the plot by the letters and figures h. g, 3, 4, 5, j, i, h. The Court committed no error in instructing the jury that if these grants and deeds covered the land in dispute they were primafacie evidence of title in the plaintiff. Mobley v. Griffin,
But the defendant introduced a grant known as the Rogers grant, issued in 1817, which he contended covered the land occupied by (601) him; and, it being older than plaintiff's grant, the Court properly told the jury that if he made good his contention the plaintiff could not recover. The calls of that grant which gave rise to the controversy were, first, that from the pine, the admitted beginning corner indicated by the index finger at e, and running "north crossing a branch to a post oak on Tate's line, and thence with the same, etc." The defendant offered testimony tending to fix the location of a Benson and Tate grant, beginning at a, and running to b, c, d, and back to a, so as to include most of the locus in quo. The defendant contended that the Benson and Tate line was that called for as the Tate line, and that if the jury found that the post oak was at h, or between h and g, still the next call would extend that line to the nearest point on the line a, d, if they should find that to be the Tate line. The Court instructed the jury that the line must be so located, if they should first find a, d to be the Tate line, and in this there was no error.
Guided by the instruction given, the jury must have found upon the evidence that the Benson and Tate line was not that known as the Tate line, and if not, the call would not control distance so as to prolong the first line till its intersection with the line, a, d, and then run with it to d. We must infer that they reached the conclusion of fact that the evidence by reputation, the calls of adjacent tracts, and the marks discovered by blocking, fixed the location of the post oak at h, and on failure to establish the boundary, a, d, so as to intersect it, that (602) the next call would be run by course and distance to i, and the whole of the land in dispute would be left outside of the Rogers grant and inside of the plaintiff's grant and deed. This finding was decisive of the whole controversy. Upon a review of the instruction asked and that given, we find no error of which the defendant can justly complain. The judgment is
AFFIRMED.
Cited: Bowen v. Gaylord,