Loften v. Heath. , 3 N.C. 347 ( 1805 )

Any mistake or wrong description of the land in the plat or patent may be rectified by parol testimony, and the true location of the land be proved by testimony dehors the patent. Plaintiff insists that the beginning of defendant's tract is at acypress, and that the fourth corner is a pine upon the creek, and so along the creek to the beginning; in which case the land in dispute is left in plaintiff's patent. The defendant insists that the pine is the beginning tree; that the original survey actually began there, and ended at the cypress; in which case the land in dispute is within defendant's patent. The creek is not parallel to the second line, as probably the surveyor supposed, but runs transversely from the cypress to the pine. The distance of 200 poles from the pine, and then the course of the second line, will intersect the line from the cypress at a much greater distance than 200 poles from the cypress. Running from the cypress 200 poles and there stopping, and from thence running the second line, will intersect the line from the pine at a much less distance

[EDITORS' NOTE: THE DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 3 N.C. 302.]

than 200 poles. It is in evidence from the hearsay of the chain carriers, now dead, that the original survey began at the pine, and from thence to the second corner, and so to the third, being the courses that defendant contends for. It is also in proof that the former courses of defendant's tract called the cypress the beginning of the tract; and the patent says, beginning at a cypress. It is contended on the part of plaintiff that as the patent calls for a cypress as the beginning of the tract, defendant cannot be allowed to depart from the words of the patent, and say that thepine is the beginning, and not the cypress. I will not say whether it was wise or not, in the first instance, to depart from the words of a grant, but many decisions of our courts have allowed of such a departure, in order to fix the location where it really was made originally. (He cited and stated the case of Person v. Roundtree,1 N.C. 69, which he said had been followed up by many other cases to the same effect.) It must now be taken as the law of this country that, notwithstanding any mistake or wrong description either in the plat or patent, the party who is likely to suffer by it may by parol testimony show the mistake, and prove the location of (348) his land by testimony dehors the patent; and upon making clear proof thereof, shall hold the land actually laid off for him. Consequently, if the jury are well convinced that the original survey began at the pine, they ought to find for the defendant.

NOTE. — See Person v. Roundtree, 1 N.C. 69, and the references in the note to that case.

Cited: Reed v. Shenck, 14 N.C. 68, 70; Higdon v. Rice, 119 N.C. 630.