Summary
In Addington v. Jones, 52 N.C. 584, the Court said: "This rule, in respect to questions of boundary, presupposes that the description which is to control, and be put in the place of course and distance, has of itself sufficient certainty to locate the land, supposing the course and distance which it controls and contradicts to be stricken out of the grant."
Summary of this case from Lumber Co. v. Lumber Co.Opinion
(August Term, 1860.)
1. Where course and distance called for in a grant are proposed to be controlled by the proof of marked trees or natural objects, actually run to and marked on the occasion of the original survey, it was Held that the substituted description ought to be sufficiently certain of itself to identify the land.
2. Surveys made on the occasion of bringing into market the Cherokee lands, and filed in the office of the Secretary of State, but which are without system, certainty, or consistency, were Held not to be sufficient to overrule the calls of a grant as to course and distance.
3. A survey made of Cherokee lands, at the instance of an individual, independently of the action of the commissioners entrusted with the survey and sale of these lands, was Held not to be sufficient to control or contradict the calls of a grant as to course and distance.
EJECTMENT, tried before Bailey, J., at Fall Term, 1859, of MACON.
J. W. Woodfin and W. M. Shipp for plaintiff.
B. S. Gaither and Henry for defendant.
The plaintiff exhibited a grant from the State, bearing date in 1842, which called for a chestnut in the west boundary of No. 122 as the beginning. No. 122 was one of the several tracts of land surveyed and sold under the direction of commissioners appointed to sell (583) the Cherokee lands in 1827, and the main point in controversy was as to its location. If located north of a given east and west line, which was agreed on, the land described in the plaintiff's grant would cover the locus in quo; but if south of that line, then the calls of his grant would not cover it. The calls of No. 122 are as follows: "Beginning at a hickory, northwest corner of No. 67, and runs west 39 poles to a hickory; south nine degrees east 275 poles to a stake; thence east 39 poles to a stake; thence N. 9 W. 275 poles to the beginning," referring to a plat which is recited as being annexed. It was insisted that the second call in this grant, "south," etc., was a mistake, and that it should have been "north," etc.; and plaintiff offered a certified copy of a plat, and certificate of survey, taken from the field-books filed in the office of the Secretary of State, as that made for and pertaining to this particular tract, which showed a tract located as contended for by the plaintiff. The plats in question showed several tracts on the one and the other side of the east and west line agreed on. One of these, No. 66, purported to have been surveyed in 1820; No. 67 in the same year; No. 121 in 1827, and 122 in the same year; Addington's mill entry in 1842, and Jones', in 1855. This evidence was objected to by the defendant, and ruled out by the court. The plaintiff's counsel excepted.
The deposition of one Henry was offered by the plaintiff. He stated that in 1827 he surveyed No. 122 for Moses Addington, and in doing so he ran through a field known as Moses Addington's which it was found was north of the east and west line, above mentioned. It was insisted by the plaintiff's counsel that the evidence showed an actual running of No. 122, and that it was north of the east and west line agreed on, and that the survey in question, taken in connection with Mr. Henry's deposition, were sufficient to justify this conclusion.
(584) The court charged the jury that the calls of the grant could only be controlled by lines actually run and marked; that Henry's deposition showed that the survey of which he speaks was made for Moses Addington and not under the direction of the commissioners, and should not, therefore, influence their verdict. It was submitted by the court to the jury to find whether there were any marked lines upon the tract in question, and that if there were any marked lines, that would control courses and distances.
The plaintiff's counsel again excepted.
Verdict and judgment for defendant. Appeal by plaintiff.
If, in addition to the metes and bounds, it had been set out in the grant, as a part of the description, "including a part of Moses Addington's field," an interesting question would have been presented. It is settled that a line of marked trees, or a tree marked as a corner, although not called for in the grant, or any natural object called for in the grant, which can be identified, and has sufficient certainty to furnish of itself a description in place of the course and distances set out in the grant, will be allowed the effect of contradicting the course and distance so as to make the line longer or shorter, or even to locate the land north of the beginning instead of south of it, on the ground that, in regard to course and distance, there is a greater liability to mistake, as by writing "north" instead of "south" or "east" instead of "west," than in regard to natural objects called for, or to line trees or corner trees marked at the time of the survey, although not called for in the grant. This rule, in respect to questions of boundary, presupposes that the description which is to control, and be put in the place of course and distance, has, of itself, sufficient certainty to locate the land, supposing the "course and distance," which it controls and contradicts, to be stricken out of the grant.
In our case the natural object, if it can be so termed, is "a part(585) of Moses Addington's field." Strike out the course and we have, in place of it, "including a part of Moses Addington's field." What part? So the description is too uncertain to stand alone, and for that reason cannot, on the authority of any adjudicated case, be substituted for or be allowed the effect of striking out the word "south," set out in the grant as the course of the line from the second corner.
So it would seem that if it had been set out in the grant as a part of the description that the tract of land in question "included a part of Moses Addington's field," it would not have controlled the course of the second line so as to make it run north instead of south. But no reference to Moses Addington's field is made in the grant, and the naked question is, Are the field notes of a surveyor, filed in the office of the Secretary of State, admissible as evidence to contradict the course set out in the grant and locate the land on the north instead of the south side of the first line, the location of which is agreed on?
If the Cherokee land (as it is called) had been regularly surveyed by authority of law, and marked off into districts, sections, half sections and quarter sections, as is done under the law of the United States in regard to the land in the territories, the field notes of the surveyor would have commended themselves to more consideration. But no order of time, or form, or quantity, seems to have been observed. We have in the plat made by order in the case, survey No. 66 and No. 67, made in 1820; Nos. 122 and 121, made in 1827; No. _______ in 1837; and a survey for Moses Addington's entry in 1842; and all of them, in regard to form and quantity, differing as widely as circumstances or caprice could have suggested.
We therefore concur with his Honor who tried the case in the court below, that the "field notes" of the surveyor, which, it would seem, were originally made and filed in the office of the Secretary of State as a kind of general map or description of the land which the commissioners were to sell, but which, by reason of the very many acts of Assembly in regard to the sale of the Cherokee lands, were superseded and disregarded, so that the tracts actually sold and conveyed by (586) grant are not at all identical with those originally surveyed, ought not, under any principle of law or under the authority of any adjudicated case in our Court, to have been received as evidence for the purpose of contradicting the calls of the grant, and in thus substituting "north" instead of "south."
We see no error in the charge of his Honor that the deposition of Mr. Henry should not influence the verdict, for the reason that it was an attempt, by parol evidence, to contradict and control the calls of a grant by the evidence of one who did not make the original survey, but acted under the employment of a private individual and not under the direction and by the employment of the commissioner appointed for and on behalf of the State.
We think, upon the whole evidence, that the fact that his Honor submitted to the jury to find "whether there were any marked lines upon the tract in question, and if there were any marked lines, that would control courses and distances," was fully as much as the plaintiff had a right to ask for, and consequently he has no ground to complain of the charge. There is
PER CURIAM. No error.
Cited: Williams v. Kivett, 82 N.C. 114; Shaffer v. Hahn, 11 N.C. 11; Lumber Co. v. Lumber Co., 169 N.C. 103; Milikin v. Sessoms, 173 N.C. 725.
(587)