Yadkin Lumber Co. v. Bernhardt , 162 N.C. 460 ( 1913 )

IIokb, J.,

after stating the case: In Tatem & Baxter v. Paine & Sawyer, 11 N. C., 64, it was held: “What are the termini or boundary of grant or deed is matter of law; where these termini are is matter of fact. The court must determine the first, and to the jury it belongs to ascertain the second. Where there is a call for natural objects, and course and distance are also given, the former are the termini, and the latter merely points or guides to it; and, therefore, when the natural object called for is unique, or has properties peculiar to itself, course and distance are disregarded; but where there are several natural objects equally answering the description, course and distance may be examined to ascertain which is the true object; for in such case they do not control a natural boundary, but only serve to explain a latent ambiguity.”

The principles embodied in this statement have been frequently approved in our decisions, as in Lumber Co. v. Hutton, 159 N. C., 445; Sherrod v. Battle, 154 N. C., 346; Mitchell v. Welborn, 149 N. C., 347; Whitaker v. Cover, 140 N. C., 280; Fincannon v. Sudderth, 140 N. C., 246; Bonaparte v. Carter, 106 N. C., 534; Murray v. Spence, 88 N. C., 357; Corn v. McCrary, 48 N. C., 496; Campbell v. Branch, 49 N. C., 313. From these and many other cases on the subject, -it will appear further that in reference to course and distance the call in deed for the line of another tract of land is to be considered and dealt with as a natural object, and, applying the doctrine, it may be taken as a fully established position in our law of boundary, “That where the line of another tract is definitely called for as one of the termini of a call in a grant or deed, and this line is fixed and established, it will control a call by course and distance.” Lumber Co. v. Hutton, supra; Whitaker v. Cover, supra; Fincannon v. Sudderth, supra.

It will be noted that in order to the proper application of this principle, the line called for must be “identified, fixed and established,” or the position does not govern; but when the conditions exist which call for its application, it is then not a question of whether the writer of the deed or the parties to it intended to take in so much land or to extend the line of the principal deed to so great a length, but, in the language of Henderson, J., in Tatem v. Sawyer, supra, “"Where there is a call for natural objects, and course and distance are also given, the former are the termini and the latter merely points or guides to it.” And if the line is properly fixed and established pursuant to recognized rules it makes no difference whether it was marked or unmarked. Corn v. McCrary, 48 N. C., 496.

The learned judge who tried the cause was no doubt familiar with the'principle to which we have referred, but held that it should not prevail in this case, being of opinion that the call of defendant’s grant and deeds, to wit, “thence east 167 poles to a stake on the line of a 50-acre tract,” was too indefinite to permit the reception of parol testimony either to identify or place the corner. But the authorities more directly relevant do not sustain this view. Thus in Lawrence v. Hyman, 79 N. C., 209, the .call of the deed was, “Beginning at the north corner of the store,” the store standing equally east and west and having two north corners, held that the case presented a latent ambiguity, to be explained by. parol testimony.

In Graybeal v. Powers, 76 N. C., 66, the call in dispute was, “thence S. 33 west 100 poles to a stake in Simeon Graybeal’s line,” and it was held, among other things:

1. A call for the line of another tract of land is “a natural boundary,” and controls course and distance.

2. In running the call, the line must be run straight, so as to strike the line called for, making as small a departure as may be from the course and distance called for in the grant.

3. Where there are two lines answering the call, the jury, in determining which is meant, may consider the circumstance that lines were run by .the surveyor and corners made at the time of the survey, leading to one of them.

And, speaking more directly to the facts, Pecurson, G. J., delivering the opinion, said: “In our case there is a natural boundary, 'Simeon Graybeal’s line,’ but it so happens that Sim-eon 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 that plat that 'the Simeon. Graybeal line’ called for is either the north or south line, bounding Tract No. 1 on the west and marked C D, or it is 'the north and south line, bounding Tract No. 2 on the east and marked E 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 line and corners, etc.”

Again, in Topping v. Sadler, 50 N. C., pp. 357-359, the call was, “thence southerly 80 poles to the patent line, thence with the patent line,” etc., and it was held: “"Where one of the calls in a deed was for a patent line, and there was one patent proved, a line of which would be reached by extending the line in question beyond the distance called for, and no other patent was alleged to be near the premises, it was held that the call was sufficiently definite to allow the extension of the line to the patent line.”

The former corners of the William Cottrell 100-acre Grant No. 566 having been fixed, a proper application of the principle of these decisions will require that on the call of said grant, “then east 167 poles to a stake in the line of a 50-acre tract,” the question, be submitted to a jury to -determine what 50-acre grant was intended and where the same is properly placed, and on considering the question, the fact that the samé William Cottrell had a 50-acre gr.ant to be reached by a slight deflection of the course and extending the line from 167 poles to 308 poles, and that both on the entry and warrant'of survey of Grant 566 for 100 acres as part of the description, “beginning at or near the corner of his 150-acre tract, including all the land between the 150- and 50-aere tracts,” are circumstances relevant to the inquiry. If the jury are unable to identify the 50-acre tract called for or to satisfactorily place the same, the courses and .distances as given in the grant should prevail.

For the error in excluding the testimony, defendant is entitled to a new trial, and it is so ordered.

New trial.