Den on Demise of Houser v. Belton

| N.C. | Dec 5, 1849

The opinion of his Honor is fully sustained by many decisions. The question is simply whether a party is at liberty to show, by the kind of proof offered in this case, that there was a mistake in using the word"east," instead of the word "west." It is not a question between a marked tree and a natural boundary, but between a marked tree and a mere word.

When a creek is called for as a boundary, it will control course and distance, and even marked lines and corners, because it is permanent and fixed, and a thing about which there can be no mistake. It is a natural boundary. Marked (360) lines and corners control course and distance, because a mistake is less apt to be committed in reference to the former than the latter. Indeed, the latter is considered as the most uncertain kind of description, for it is very easy to make a mistake in setting down the course and distance, when transcribing from the field book or copying from the grant or some prior deed, or a mistake may occur in making the survey, by losing a stick, as to distance, or making a wrong entry as to course. For these reasons, when there is a discrepancy between course and distance and the other descriptions, the former is made to give way.

All the reasons for making course give way to a natural boundary, or to the lines of another tract, or to marked lines and corners, apply with full force to the present question. The deed describes the beginning corner as being on the east side of the creek; the proof shows the corner tree to be on the west side. The marked tree must control, because there is less liability to mistake about it than in the use of one word for another, and the discrepancy shows there must be a mistake in the one or the other.

In the leading case, Person v. Roundtree, 2 N.C. 378" court="Sup. Ct. N.C." date_filed="1796-09-05" href="https://app.midpage.ai/document/brown-v--craig-3677515?utm_source=webapp" opinion_id="3677515">2 N.C. 378, S. c., 1 N.C. 69" court="Cir. Ct. N.C." date_filed="1793-07-01" href="https://app.midpage.ai/document/warner-v-harding-8329138?utm_source=webapp" opinion_id="8329138">1 N.C. 69, the course of the first line was "north" from a creek, so as to put the whole tract on the north side. The marked line ran "south" from the creek, so as to put the whole tract on the south side. It was held that the course of the first line had been written north instead of south by mistake, and the marked lines controlled. There is the same reason for holding, in this case, that "east" had been written instead of "west" and the marked course must control.

PER CURIAM. Judgment affirmed.

Cited: Marshall v. Fisher, 46 N.C. 119" court="N.C." date_filed="1853-12-05" href="https://app.midpage.ai/document/jordan-v--rouse-3646027?utm_source=webapp" opinion_id="3646027">46 N.C. 119; Mizell v. Simmons, 79 N.C. 190;Credle v. Hays, 88 N.C. 324; Higdon v. Rice, 119 N.C. 626, 9;Bowen v. Gaylord, 122 N.C. 820; McKenzie v. Houston, 130 N.C. 573.

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