76 N.C. 66 | N.C. | 1877
A call for the line of another tract of land is "a natural boundary" and controls course and distance, on the ground that there can be no mistake in respect to the intention to go to the line of the other tract, whereas in respect to course and distance there may be a mistake, in entering upon the field notes or in transferring the entry to the description set out in the grant.
In our case, there is a natural boundary, "Simeon Graybeal's line," but it so happens that Simeon Graybeal owned two tracts, one a 30 acre tract, which I will call tract No. 1, and another tract which I will call tract No. 2, lying west of tract No. 1, and distant from it some 30 or 40 poles. It is evident from the plat, that "the Simeon Graybeal's line" called for, is either the north and south line bounding tract No. 1 on the west and marked C D, or it is the north and *70 south line bounding tract No. 2 on the east and marked F E.
Which of these two lines is the one that is called for, is "the governing fact in the location of the defendant's grant and ought to have been distinctly left to the jury with instructions to consider all the evidence and the surroundings of the case, including the marked lines and corners, c."
His Honor and the counsel, carried away by the question as to whether marked lines and corners not called for can control corners and distances, fell into the same error as in Clarke v. Wagner,
There, the case turned upon the fact whether Island No. 1, or Island No. 2, was "The Island" called for; here the case turned upon whether the north and south line bounding tract No. 1, on the west, or the north and south line bounding tract No. 2, on the east, was "the Simeon Graybeal's line" called for. It is proper to state that Clarke v. Wagner, which is on all fours with this case, was not published at the time of the trial.
For this error there will be a new trial, on which His Honor will instruct the jury that if they find the north and south line bounding tract No. 1 on the west, to-wit, C. D, to be the "Simeon Graybeal's line" called for, then as the next call is "North 140 to a stake in Simeon Graybeal's line," the defendant's grant did not cover the land in dispute, and they should find for plaintiff, and need not trouble themselves *71 to fix the points at which the call struck Graybeal's line.
But if they should find the north and south line bounding tract No. 2 on the east, to-wit, F E, to be "the Simeon Graybeal's line" called for, then the line of defendant's grant starting at 1 must be run straight, so as to strike that line, making as small a departure as may be from the course and distance called for in the grant, and not deviating from course or distance in order to conform to the lines surveyed and marked as stated by the witnesses, because, these lines not being called for as a part of the description, the circumstance that they have been surveyed and marked can only be allowed weight in determining the fact as to which of the two lines was the Simeon Graybeal line called for in the grant.
Marked line trees and corners not called for have been allowed to control an obvious mistake in regard to course; for instance, a mere slip of the pen in writing north instead of south and the like, but you must in the language of surveyors "go by the distance," unless it be controlled by a call for a natural boundary, whether it fall short of, or go beyond a tree, marked as a common tree, but which is not called for. To allow the terms of a written instrument to be varied by parol evidence is a proposition for which no lawyer will contend. The only exception is made by our Courts in questions of boundary when there being no natural boundary called for, parol evidence corroborated by natural evidence of trees marked at the time, although not called for, is allowed to correct or explain a mistake in the courses of the grant; to allow it in this instance would be not to correct a mistake, but to supersede a line fixed by the rules of law, by putting in its place a line marked by one of the parties, but which, for some reason best known to himself, he chose not to have set out in the grant.
The case does not set out with precision the locus in quo *72 and it does not appear whether the possession of the defendant included the small slip between the line, as run and marked by the defendant, and the straight line from 1 to F. This we presume is a matter of but little importance except as it may affect the costs.
Error.
PER CURIAM. Venire de novo.
