52 S.E. 579 | N.C. | 1905
Plaintiffs claim the locus in quo under deeds from their father, Isaac Fincannon, executed in 1887 for the purpose of making a division of his lands. They alleged that defendants had trespassed thereon. Defendants denied plaintiffs' title. For the purpose of fixing their boundaries, plaintiffs introduced a grant issued 1794 to John Hughes, in which the call for the southwest corner is a small post oak — running thence east, etc. This is indicated on the plat (248) so — "L. P. O." They introduced a deed from C. A. Cilley, commissioner, appointed in a proceeding instituted for the *186
[EDITORS' NOTE: THE PLAT IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
They introduced a deed from B. A. Berry to Isaac Fincannon dated 1876 — a deed from Dean to Berry dated 1871. These deeds call for "a rock near a small branch and 22 poles north of the railroad, being a corner of a tract of land owned by the heirs of S. A. Sudderth, deceased, and known as the Johnson tract, and runs west with the line of the Sudderth tract 228 poles to a stake in the old Jonathan Duckworth line," etc. They introduced three deeds executed 21 April, 1887, from Isaac Fincannon to each of the plaintiffs, all calling for the Berry line, as the northern boundary. Plaintiffs introduced one Hudson, who testified that he had seen line run from the post oak. It had been pointed out as John Sudderth corner. He looked at it — three marks on it — letters "J. S." on west side. Had never seen land run from rock. Mr. Denton testified that he run Sudderth land by Cilley deed. Began at post oak and run east — old marked line — thickly marked — found pointers at end of line. There was testimony that Berry said the post oak was his corner. Defendant introduced Mr. Huffham, who testified that he surveyed the land when Berry conveyed to Fincannon for the purpose of making deed. "Begun center of railroad — run north to rock, understood it to be corner of S. A. Sudderth's tract and Hughes grant — also known as Johnson tract, rock there. Begun at E, then to G, at Duckwell's line — then to I — then to J from E to G, known as line of Sudderth tract — was marked then and now. At G pointers. Do not think I marked line. Marked line from G to I. Never heard of line from P O till this suit," etc. There was evidence tending to show that Fincannon had been in (249) possession of land to line from post oak east for many years. Plaintiffs insisted that their northern boundary was the southern boundary of Berry line — from post oak east. That the call for rock was a mistake, and that the controlling call was for Sudderth-Johnson land. They requested His Honor to instruct the jury: "The calls in the deed under which plaintiffs claim are: Beginning on a rock near a small branch and 22 poles north of the railroad, the same being a corner of a tract of land owned by the heirs of S. A. Sudderth, deceased, or the heirs of John Sudderth, deceased, and known as the *188
Johnson tract, and runs west with the line of Sudderth tract 228 poles to a stake in the old John Duckworth line, and the court charges you that if the jury can find and fix the line of the tract so called for, and if it was marked or defined at the time the plaintiffs' deed was executed, that the calls of the plaintiffs' deed would be controlled by the call for the Sudderth or Johnson tract, and would go to and run with it to the old Jonathan Duckworth line, if the Jonathan Duckworth line can be located, and this would fix the boundary of the plaintiffs' land." His Honor declined this instruction and intimated that he would charge the jury that if they found from the evidence that at the time of the execution and delivery of the deeds under which plaintiffs claim there was a contemporaneous survey of the lands conveyed thereby for the purpose of locating the lines and boundaries thereof and the line was located and run with the line E G, and that it was the intention of the grantor and grantees that it should run with the red line, then said line would be the boundary of the plaintiffs' land, notwithstanding the calls in said deeds." Plaintiffs excepted, submitted to judgment of nonsuit and appealed.
after stating the case: The sole question presented by the plaintiffs' exception to His Honor's ruling is whether, by a proper construction of the deed from Berry to Isaac Fincannon, the call for the Sudderth-Johnson tract shall control the other calls, thus making the southern boundary of that tract their northern boundary. The third rule for construing the language used in deeds in respect to boundary laid down by CHIEF JUSTICE TAYLOR in Cherry v. Slade,
In Cherry v. Slade, supra, the rule is thus stated: "Whenever it can be proved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description of the land in the deed or patent." It was this rule which His Honor intimated he would instruct the jury to apply in locating plaintiffs' deed. (251) There can be no question that this Court has frequently approved and applied it. The last instance in which it was discussed and the cases in which it was applied reviewed, is in a well considered opinion by MR. JUSTICE DOUGLAS in Elliott v. Jefferson,
New Trial.
Cited: Whitaker v. Cover, post, 284; Lance v. Rumbough,