85 S.E. 438 | N.C. | 1915
Lead Opinion
BROWN, J., dissenting; CLARK, C. J., concurring in the dissenting opinion. *126 PLAINTIFFS' APPEAL. After stating the case: The right of the plaintiffs to recover depends upon the true location of the first line of Grant No. 3290, that is, as to land described in the grant which is not covered by any of the inside patents. The question as to the effect of the latter upon the rights and interests of the parties is presented by the defendant's appeal, and need not be considered here.
(87) The contention of the plaintiffs is that the first line of that grant should be from A to B, as shown on the court map, while the defendants say that it should be from A to D.
We are satisfied that we cannot adopt the plaintiff's view, unless we hold that what was done by Sawyer and Kelly, when they made the survey in 1871, amounted to a practical location of the first line within the rule laid down in Cherry v. Slade,
So we see that the very foundation of the rule is the presumed intention of the parties to the grant, and the only excuse for it, as it is opposed to the general principle, is that it enables us to ascertain what the intention was in respect of the boundary.
It may be well here to reproduce some of the comments of this Court upon the rule and its application, as what has been thus said is most pertinent to the facts of this case, as found by the able and learned referee and judge. The question as to the extent of the rule and the manner of its application was presented in the oft-cited case of Reed v.Schenck,
When we look at this case in the light of the foregoing authorities, it is manifest that the findings of the referee and judge withdraw the case from the operation of the rule as to the effect of a line being run and marked at the time the grant was made, as they distinctly find, and as clearly and emphatically as language can express such a finding, that B. L. Sawyer and his surveyor, M. L. Kelly, when they made the survey in 1871 and ran along Deep Gap or Forester Ridge, had no intention of marking the line A-B as a line of the tract of land to be thereafter described in the Grant No. 3290. To use the language of the judge: "In respect of the survey made in 1871, for Grant No. 3290, on the B. L. Sawyer entries, the court finds that said survey began at the chestnut oak at `A' and was carried to the point `B' at Thunderhead, the same being the head of Defeat Ridge, retracing the surveytheretofore made in 1867, for the purposes heretofore stated. . . . The court finds that B. L. Sawyer was present upon this survey, and that the intention of Sawyer and the surveyor, upon said survey, was to establish the chestnut oak at A, a corner in the Bryson survey, as the beginning point in said survey, and that the western line of said survey should coincide with the eastern line of the survey of 1867, and that the northwest corner of said last (first) mentioned survey should be identical with the northeast corner of the Bryson survey of 1867." It is then found as a fact that the line from A to B was not (91) actually measured "along said straight line," but along the corner of Deep Gap or Forester Ridge, a corner being marked at the point where the first and second lines of the triangle made upon the Bryson survey of 1817 intersected on the State line at Thunderhead. There are further findings that B. L. Sawyer knew in 1871, when he and Kelly made their survey, that there was "no Bryson line along and up said Deep Gap or Forester Ridge," and he further knew, at said time, that the line of T. D. Bryson ran from a sugar maple at the head of Big Chestnut Ridge, at the point marked D on the official map to the chestnut oak, at the point marked A thereon, and he consequently knew that this was the eastern line of T. D. Bryson's land, that is, from the sugar maple at D, in a southwestwardly direction, to chestnut oak at A, as the one fact is necessarily to be inferred from the other. It appears also that it was Sawyer who set the compass in 1867 on the Bryson survey and sighted to the sugar maple, which he told the surveying party was at the head of Big Chestnut Ridge. He was the marker, and he marked the chestnut oak so as to indicate the direction from which they had come in reaching it and the direction they would go in leaving, the latter being towards the sugar maple on Big Chestnut *135
Ridge. The marks were three hacks on each side of the tree. Sawyer inquired of T. S. Siler how he could measure the line to the sugar maple without running it, and he was shown how it could be done by a diagram. It is also found that it was the intention that the western line of the Kelly survey of 1871 should coincide with the eastern line of the Bryson survey of 1867, and the northwest corner of the Kelly survey should be identical with the northeast corner of the Bryson survey. The Bryson northeast corner is at the sugar maple, the point marked D on the map. So it is clear that the line up the Big Gap or Forester Ridge was not run and marked for the purpose of making it a line of the grant to be thereafter issued (No. 3290), but, on the contrary, the intention of the parties was in strict accordance with the express words of the grant, that the line A-D should be one of its lines. We are bound by the findings of fact as made by the referee and judge, as it is not our custom to review them under such circumstances. Usry v. Suit,
But plaintiffs contend that, while the call is for the Bryson line, it also extends from A "1,800 poles north to the Tennessee line at the head of Defeat Ridge, and they insist that the line should go to that place, notwithstanding it is also said that it must begin and run with Bryson's line and corner with Bryson's northeast corner; but we do not think that this is the proper meaning of the call. The (92) leading purpose and dominant idea is that this line shall coincide with the Bryson line, and if this part of the call is ignored and the line is extended north to the intersection of the head of Defeat Ridge with the Tennessee line, it would violate the evident intention of the parties, as gathered from the deed, that it should corner at D, where the maple stood, and of course stop there, for it could not corner there very well if that was not to be the end of the line. The clear intention of the parties must prevail, and the line must run with that of Bryson's and stop at D, as a corner of the land. It is plain that the parties mistakenly thought, when they inserted the call for Defeat Ridge in the grant, that the northeast corner of the Bryson land was on the Tennessee line at the head of that ridge, but their purpose was to stop at the corner, wherever it should be, the call for Defeat Ridge being descriptive and not locative. The call is to be construed as if it read, "cornering at Bryson's northeast corner, supposed to be on the Tennessee line, at the head of Defeat Ridge." This is a much more reasonable *136
interpretation of the grant than if we should defeat the intention to make "Bryson's line" one of the lines, by running the line along Deep Gap or Forester Ridge to Defeat Ridge, eliminating the primary and principal call, and the law does not require that we should do so. Referring to the "third" of the four rules for locating boundaries which are stated in Cherry v. Slade,
It was held in White v. Luning,
"1. As a general rule, monuments, natural or artificial, referred to in a deed control its construction, rather than courses and distances; but this rule is not inflexible; it yields whenever, taking all the particulars of the deed together, it would be absurd to apply it.
"2. If monuments are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, they will be rejected.
"3. Other things being equal, boundaries prevail over courses; but where the corners and distances inclose the identical land in dispute, it would be wrong to let two false boundaries stand, in order to defeat a conveyance."
See, also, 1 Jones on R. P., secs. 382, 383, 384; 2 Devlin on Deeds, 1405, 1406; Noonan v. Lee, 2 Black (U.S.), 504 (
In Mayo v. Blount,
We find it stated in plaintiff's brief that "When a deed sufficiently identifies land by its known boundaries or other means, and then superadds, unnecessarily, to the description, such further description, though inaccurate, will not vitiate the previous and perfect description," citingSimpson v. King,
There are several facts which tend to show clearly what property was intended to be described:
1. There is no reference in the grant to the Deep Gap or Forester Ridge, but the call is for a course due north to the Tennessee line, and this course is deflected, not to coincide with Deep Gap or Forester Ridge, but with the Bryson line, beginning with it, running with it, and "cornering" with it at its northeast corner, where the maple is. We must, therefore, adopt the latter as the line, or, at least, as a part of the line. Mizzellv. Simmons,
2. If the call is run with the Bryson line; and stopped at the Bryson northeast corner, the other calls of the grant fit in with it; whereas if run as plaintiffs contend it should be, there are marked discrepancies.
3. The Bryson line was marked, when the first or Siler survey was made, at both of its ends, and has for its northeast corner a maple, which identifies it with certainty.
4. There are subsequent calls in the Bryson survey for physical monuments just as certain and as reliable as Defeat Ridge, and they would not be reached without greatly lengthening lines, if the line is carried to Defeat Ridge. One of them is "700 poles to a beech, where the Locust Ridge reaches the Tennessee line."
It will be conceded, we presume, that the mere understanding of the parties, without more, as to the location of Bryson's line and northeast corner, cannot control the call. Hough v. Howe,
There are many exceptions to evidence in the case, but we think they can be so classified as to present but few questions for our consideration.
First. The testimony of the witnesses M. L. Kelly, P. C. Sawyer, and Joseph M. Greer, and any other of the same kind, as to the declarations *140
of B. L. Sawyer concerning the Bryson line, was properly limited by the court to what was actually done on the Kelly survey. The declarations of B. L. Sawyer as to the location of the Bryson line were incompetent, because he was not shown to be disinterested at the time they were made, and, on the contrary, it appears that he was interested at the time of the alleged declarations. Morgan v. Purnell,
Second. The testimony as to the contents of the deposition of Bent Cook was properly excluded, as the witnesses were not able to give the substance thereof (Wright v. Stone,
Third. The testimony of William Walker as to line trees was not sufficiently definite as to kind of marks or their age, and in other respects was very indefinite. Even if there was any error, it was not sufficiently harmful for a reversal.
Fourth. Testimony as to the acts and declarations of Kope Elias was properly rejected. The relation between George W. Swepson and Elias, as client and attorney, appears to have been severed at (97) the time of the alleged acts and declarations, by the death of Swepson, and we can see no authority in Elias to bind Swepson by his acts or declarations. It surely did not arise out of their relations as attorney and client.
Fifth. The copy of the grant to George S. Walker, No. 138, taken from the registry, was properly admitted in evidence. By Revisal, *141 sec. 988, it is provided that the registry of a deed, or duly certified copy thereof, shall be evidence in any court of the State, without accounting for the nonproduction of the original, and by sections 1588, 1599, it is further provided that the court may, "upon affidavit suggesting some material variance from the original in such registry, or upon other sufficient grounds," by rule or order require the production of the original of such deed, in which case the same shall be produced, or its absence duly accounted for according to the course and practice of the court. In this case, upon affidavit, Judge Peebles ordered that defendants allow plaintiffs to inspect the original grant, No. 138, and the plat and certificate of survey thereto attached, or show to the satisfaction of the court that they had made diligent effort to find them and failed, and on failure to produce the original grant, that they procure and use a certified copy of the same from the office of the Secretary of State. The latter was offered in evidence, and the court found that defendants had never had the originals in their possession or under their control, and that they had made a bona fide effort to produce the original papers by doing the things and making the inquiries and search detailed in the finding. Thereupon the court overruled the exception to the admission of the copies.
We concur with his Honor that reasonable search had been made for the missing papers, and that the order of Judge Peebles had, at least, been substantially complied with. It was fairly exhaustive as to sources of information and probable places of deposit, and to have required more would have rendered it practically impossible to have complied with the order. There is really no tangible or reliable proof that there is any variance between the originals and the copies — none upon which a finding to that effect should legally be made. It is merely suggestion, conjecture, or supposition; but even if there had been some proof to that effect, the defendants satisfied the court that they had made a diligent effort to comply with the order, as they were required by its terms to do. Justice Ruffin said, in Love v. Harbin, 87 N.C. at p. 254: "A main purpose intended to be accomplished by registration is the perpetuation of the instrument, and of the memorial of its probate and order of registration, and it will not do to hold that this intention of the statute may in every case be defeated by a notice to produce the original. Under the operation of such a rule it would be next to impossible to establish any title depending upon very ancient deeds, as they are rarely preserved so as to pass with the land; and this partly because it is universally understood that when once (98) registered the proofs of their execution and probate are perpetuated." *142 Sixth. As to the testimony of Mr. Davidson in regard to proceedings inWyman v. Taylor, we do not see how it could be competent, if relevant to the issue in this case, to show that the court refused certain instructions in that case. It was res inter alios acta. The court submitted the evidence for the purpose of showing the litem motam, as the record states.
Seventh. The description in a junior grant may not be evidence of the location of lines or boundaries of a senior grant (Sasser v. Herring,supra; Hill v. Dalton,
Eighth. If there is any defect in the defendant's chain of title, it does not concern the plaintiffs in this appeal, as they must recover upon the strength of their own title, and not upon the weakness of their adversary's. They cannot recover by showing merely that defendants had no title, even if this be true.
Ninth. The referee was not bound to find a fact simply because there may have been some evidence of it, as he had the right to weight the same, and therefore he could consider the evidence of reputation as to the Bryson line in connection with the other evidence in the case, and was not compelled to find in accordance with the reputation. He considers the whole evidence, and not merely a part of it; and this applies to other exceptions based upon his failure to find certain facts.
Tenth. The testimony of Joseph M. Greer, as to certain facts told him about the Bryson northeast corner at Defeat Ridge, was properly excluded, as he said "it seemed to be agreed by all of said persons"; but just who it was that called his attention to it he would not say positively, because he did not recollect every person present. This was entirely too indefinite. He did not, and could not, say who it was, nor did he state what was said, so that the court could judge of the quality of the testimony, but he was only able to state that "it seemed to be agreed by them." The witness must be able to give the substance of what was said and by whom, and the impression made on him will not answer the purpose. This was held in Grant v. Mitchell,
There are a few more exceptions, but they are fully covered, we think, by what we have said in regard to the others, and require no further discussion. It may be said generally, and in conclusion, that no reference is made in Grant No. 3290 to Deep Gap or Forester Ridge as a line of the grant, and this is made more significant by the fact it is referred to only for the purpose of describing the beginning corner at the chestnut oak (A on map), and the next call is "north with Col. T. D. Bryson's line," and so forth, and not "north with the Deep Gap or Forester Ridge, Col. Bryson's line," as we would expect if the ridge controlled the call. The referee and judge find that it was not the intention to make the ridge one of the lines, or Defeat Ridge one of the corners, but the sole intention was to start at the chestnut oak and go to the sugar tree or maple at the head of Big Chestnut Ridge. It is found as a fact that in the survey of 1871, for Grant No. 3290, the line was measured along Deep Gap or Forester Ridge and carried to Thunderhead, it being the head of Defeat Ridge, in order toretrace the survey of 1867, for the purpose heretofore stated, which was triangulation, the object being to locate the line from A to D, or from the first corner to the sugar maple, and to establish, at the latter place, the Bryson northeast corner. If a line had been run along Deep Gap, it could not be adopted as a line of the survey unless it was so intended to be, and it is found by both referee and judge that there was no such intention. The line from A to D was marked for some distance at either end, and cuts or hacks made on the chestnut tree at the place of beginning, and at the time, indicating its direction. Besides, to fix the line at A-D will harmonize with the other calls of the Bryson tract of land. All these things being considered — and others could be added — make it safer and more certain, as a guide to the intention of the parties, that the call should be controlled by the Bryson line as thus located, from A to D, than by the line A-B, which is not even north, and has no such indicia of a line as we find on the other. Again we say, physical monuments will have the preference in the calls, unless there is some more definite and certain call that clearly indicates the intention of the parties. There is no hard and fast rule of the law that is permitted to have the effect of defeating the clearly expressed will of the parties.
It must be borne in mind that we are dealing with a referee's report, in which the facts were found and the findings afterwards confirmed by the judge, and this renders many of the cases cited by the plaintiff inapplicable. It is found, for instance, that the line from A to B was not run and marked, nor was it intended to be the first line of the Kelly survey, but the line A-D was intended to be the first line, and, further, that the line A-B, by Forester's Deep Gap Ridge, was run, though not marked, for the purpose solely of locating the line A-D (100) *144
as the first line of the tract, the Kelly survey having been made just as was the Siler survey and for the same purpose. The rule, therefore, which classifies locative calls into natural objects, mountains, rivers, lakes, and creeks, artificial objects, as marked trees, lines, and course and distance, giving them rank in the order named, does not require, in this case, that the first line should run from A to B, without any regard to the call for Bryson's line, as the line A-D was actually run and marked for the first line; and, besides, there are other calls in the survey of equal importance with the one for Defeat Ridge, which would have to be disregarded if that is adopted as the end of the first line. If the line is run from A to D, we are following the footsteps of the surveyor, and rejecting a false description for that which is not only certain, but which the referee and judge say was the one actually adopted by the parties at the time of making the surveys. This is not a case where there is a call by course merely to a certain object, for here the course is controlled by an additional call for a well established line of another tract, which was actually run and marked when the Bryson line was surveyed, and the question is whether the course should be along said line. The well settled rule, and the true construction of the grant, require this departure from the course.Lumber Co. v. Hutton,
The record and the briefs are voluminous, the record containing 805 and the briefs 342 printed pages, and there were a large number of exceptions, running into the hundreds. Some of the questions are highly important and very delicate in certain of their phases. The case has been strenuously contested, with great ability and research, and the Court has bestowed upon it most careful study and reflection. We have concluded that we but decide it upon its true legal merits when we hold that no error was committed at the hearing in this the plaintiff's appeal.
No error. *145
DEFENDANT'S APPEAL.
Addendum
In the defendant's appeal it is found, and so adjudged by the Court, that there is no error in the proceedings or judgment.
No error.
PLAINTIFF'S APPEAL. (101) I feel compelled to differ from the conclusions reached by the majority of the Court in this case, and I will state my reasons as briefly as possible.
This is an action brought to recover a triangular tract of land delineated on the map as beginning at A, running to B, thence to D, and back to A. The plaintiff's appeal involves the proper location of the first line of Grant No. 3290. The beginning corner of this grant is admitted by all parties to this action to be correctly located, and is shown on the court map at the letter A. The description of Grant 3290 may be analyzed as follows:
1. A tract of land containing 10,000 acres.
2. Lying in Macon County, Section No. _____, District No. _____.
3. Being part of the lands lately acquired, etc.
4. Bounded as follows, viz.:
5. On the waters of Hazelnut Creek.
6. Beginning at a chestnut oak on a trail leading from the mouth of Sugar Fork Creek to the Deep Gap.
7. Beginning and running with Col. T. D. Bryson's line.
8. Eighteen hundred poles north to the Tennessee line at the head ofDefeat Ridge.
9. Cornering with Bryson's northeast corner.
10. Thence east 700 poles to a beech, where the Locust Ridge reaches the Tennessee line, etc.
It is admitted that the chestnut oak at A is the beginning corner of this grant. I am of opinion (1) that the first line of Grant 3290 begins at A and runs to B on the map as a conclusion of law wholly irrespective of whether there ever has been or is now a "Bryson's line," and regardless of where it was located or alleged to have been located. In other words, the existence and location of this line is entirely immaterial for the purpose of establishing the first line of Grant 3290. The admitted facts show that this grant was located by starting at A and running to B, this being the identical line actually run and marked at the time the entries were made.
(2) Assuming that the Bryson line is material, it appears to be undisputed that at the time of the survey in 1871 and the issuance of Grant 3290 thereon in 1872, the line from A to B was reputed to be *146 the Bryson line, even though that repute was incorrect, and the surveyor located the first line of Grant 3290 under the belief that he was running with the true Bryson line, and he acted upon that belief, although it may have been erroneous.
The referee finds "that Defeat Ridge is located as plaintiff claims, being the ridge going up between the prongs of Little River, in (102) Tennessee, and the head of Defeat Ridge culminates at and with other converging ridges and forms the easternmost knob of the group of knobs known as Thunderhead, on the State line between North Carolina and Tennessee, the said head of Defeat Ridge being at thepoint marked B on the official map."
The Court finds that in making the survey in 1871 of the B. L. Sawyer entries, upon which Grant No. 3290 issued, in 1872 M. L. Kelly, the county surveyor, with his crew, surveyed from the said point "A" up the Deep Gap or Forester Ridge to the top of the Smoky Mountain at "B" at the head of Defeat Ridge, and at the said point "B" made and marked a corner on a tree of the survey he was then making and upon which Grant No. 3290 issued. The said tree was marked as a corner by M. L. Kelly in 1871, having been previously marked as a corner of the Bryson survey in 1867.
The call for 1800 poles north to the Tennessee State line at the head of Defeat Ridge is, in my opinion, controlling. There are two well defined objects that are unmistakable; one is the State line that divides North Carolina and Tennessee, and the other is Defeat Ridge. This ridge, as shown by the evidence, and not controverted, is one of the most prominent natural objects in the whole of that great range of the Smoky Mountains, and because of its prominence has been long and well known to the citizens and inhabitants of both States of Tennessee and North Carolina, as well as to the United States surveys and to geographers. It would be difficult to find a better defined and located natural object, or one better known in all that country. The location of this right where it joins the Smoky Mountains and its relation to the State line was overwhelmingly established by the evidence, and the court found the fact to be that it was located at "B."
It was also admitted that the dividing line between the States of Tennessee and North Carolina passed along the crest of the Smoky Mountains. So that we have here a remarkable conjunction, in fact, of both the descriptions mentioned in the surveyor's certificate of his survey, and the grant issued thereon, viz., "the Tennessee line and Defeat Ridge."
These facts being practically admitted or indisputably ascertained, under the repeated and well settled decisions of this Court, it follows, as the legal result, that the first line of Grant 3290 begins at "A" and *147 runs to "B." As I read the cases, this rule of law may be regarded as an ancient one in this State, and so well settled that it can hardly be seriously questioned.
Among the many cases cited in the elaborate and learned brief of the plaintiff's counsel, we find the following to be especially in point, where the rule is most instructively applied to facts very similar to those in the case under consideration: Miller v. Cherry, 56 (103) N.C. 29; Jones v. Robinson,
When a deed sufficiently identifies a thing by its known name, or other means, and then superadds, unnecessarily, to the description, such further description, though inaccurate, will not vitiate the previous and perfect description. Simpson v. King,
The head of Defeat Ridge is a natural object so commanding in its character that it answers the description fully, and is sufficient of itself to locate the second corner, regardless of whether the line runs with Bryson's line or not. The unnecessary and false description will be disregarded and the line run to this controlling natural monument.
In Ehringhaus v. Cartright,
In Miller v. Cherry,
In Addington v. Jones,
In Stafford v. King, 94 Am. Dec., 308, it is laid down that the general rules in respect to locating land are: (1) By natural objects, such as rivers, mountains, lakes, creeks; (2) artificial marks, such as marked trees and lines; (3) course and distance.
In this case Chief Justice Marshall is quoted as having said that "The most material and most certain call shall control those which are less material and less certain." In this case it is laid down as a (104) prime rule that the "Footsteps of the surveyor must be followed, and the above rules are found to afford the best and most unerring guides to enable one to do so."
In Doe v. Payne,
In Carson v. Burnett,
In Waters v. Simmons,
The defendants insist that the way to go to "B" from the admitted beginning at "A" is to run from "A" to "D", the head of Big Chestnut Ridge, and the defendants' alleged northeast corner; thence westerly along the top of the mountain to "B," a distance of 3 or 4 miles, and then run back in an easterly direction over precisely the same line and same distance to "D" and then resume the survey of the lines of Grant 3290 along the mountain until they turn southwardly to the beginning.
The referee so concluded, and his judgment was affirmed by the court below. In view of the well settled principles of law set forth in the cases that we have cited, I see neither reason in nor authority for such ruling.
The defendant, admitting that the Bryson line was actually run as claimed by the plaintiff, undertakes to explain it by saying that the *149 straight line from "A" to "D," intended as a Bryson line, was not actually run and marked from "A" to "D" because the line would run through a country badly infested with rattlesnakes, and, therefore, they ran from "A" to "B" and by triangulation platted the true Bryson line from "A" to "D."
This explanation may or may not be true, but it cannot have the effect of changing the controlling call for Defeat Ridge. It is but added proof that the Bryson line was actually run where the plaintiff claims it was, and that is consistent with the call from the chestnut oak to Defeat Ridge.
There are several exceptions to the evidence, which are set (105) out in the assignments of error and commented on in the plaintiff's brief, some of which, in my opinion, are well taken and entitle the plaintiff to a new trial, but in the view I take of the case it is not necessary to prolong this opinion by commenting upon them.
I am of opinion that upon the admitted facts the plaintiff is entitled to judgment for the tract of land bounded and described in Grant 3290, beginning at chestnut oak "A" and running to "B" at Defeat Ridge.
The CHIEF JUSTICE concurs in this opinion.
Cited: Power Co. v. Savage,