Doe Ex Rel. Dula v. M'Ghee

34 N.C. 332 | N.C. | 1851

The action is ejectment. The plaintiff claims under a grant issued by the State to him in 1848, which covers the locus in quo. The defendant introduced a grant from the State to David McGhee, dated in 1788, which commenced at the index in the plat and ran around to figure 3. Its call is for a line thence west, crossing Beaver's Creek to a hickory corner on said creek; then south to the beginning. The defendant then gave in evidence a conveyance from David McGhee to his son Bluford McGhee, under whom she claims. This deed for the northern part of the patent has its calls for a chestnut tree on the top of the Low Mountain and run around to the corner of the grant at the figure 3; and it calls thence west to the corner, a hickory; then south to the beginning. A grant from the State to Bluford McGhee dated in 1818 was then exhibited. The calls of that grant are, "lying on (333) Beaver's Creek, beginning on a hickory on the hillside west of the field, being Ellison's (now Horton's) hickory corner, in said McGhee'sown line; then west with Ellison's line 62 poles to a gum, poplar and a white oak on a ridge; then south to a stake in his own line near theconditional corner; then north with his old line to the beginning." It is evident from these calls in the two grants to the McGhees and the mesne conveyance to Bluford there is no vacant land between the two former. The plaintiff contends that the third line of the old grant stops at the letter D on the diagram and runs a direct course to the letter C, the defendant that it continues on to A, and then a direct course to the index. To the present inquiry, it is not important at which of the two points the trueterminus is, for the closing line from that point to the index must be the boundary or line of the grant of 1788. Hough v. Horn, 20 N.C. 369. The grant to Bluford McGhee calls for a beginning in his own line and closes the third line at a stake in his old line, and makes the old line his closing line. His father had in 1808 conveyed to him the northern part of his grant, and the third line runs "west to the corner, a hickory" — evidently meaning the hickory which is the terminus of the third line of the grant — and then to the beginning. The surveyor proves that the conditional corner mentioned in the conveyance to Bluford McGhee and called for in his grant was near to the letter H in the plat and nearly on the line A B. Where a grant calls for the line of the older grant, the rule is that it must go to it unless a natural object or a marked tree is called for, and before the calls of the junior grant can be ascertained, those of the elder must be located. This is established by many decisions. Miller v.White, 3 N.C. 160; ________ v. Heritage, 3 N.C. 327; Bradberry v.Hooks, 4 N.C. 443; Tate v. Southard, 8 N.C. 45. Now it is claimed by the plaintiff that the closing line of the old grant runs from D, either to the index or to the (334) letter C. If so, the closing line of Bluford's grant must go to the same, for, by the conveyance to him in 1808, the same line is called for.

No error is perceived in the charge of the court.

PER CURIAM. No error.

Cited: Mason v. McCormick, 75 N.C. 266; Murray v. Spencer, 88 N.C. 361;Hill v. Dalton, 140 N.C. 13.