Citation Numbers: 26 S.E. 256, 119 N.C. 623
Judges: AVERY, J.
Filed Date: 9/5/1896
Status: Precedential
Modified Date: 1/13/2023
The questions raised by this appeal are:
1st. Whether it is competent to show by parol testimony that, by mistake of surveyor or draughtsman, the calls for course and distance incorporated in a deed or grant are different from those established by a previous or contemporary running by the parties or their agents.
2d. Whether, if in any case parol proof is competent and sufficient to be submitted to the jury to show a location different from that determined by following course and distance, the testimony in the case at bar raised a question as to mistake in the calls that it was the province of the jury to pass upon.
Deeds are executed contracts, but do not belong to that class that must be interpreted solely by a consideration of the language of the instrument or what occurs upon its face. On the contrary, every deed is so far ambiguous as to require extrinsic evidence to "fit the description to the thing." Safret v. Hartman,
The mission of the courts is to enforce the contracts embodied in the instrument, and the first step in giving effect to the ambiguous agreement *Page 389 is to ascertain under established rules of evidence what the minds of grantor and grantee assented to at the time. To identify in the sense in which the term has been used by the Court (Safret v. Hartman, supra) is to show it to be the same subject-matter that was agreed upon by the parties.
In Redmond v. Stepp,
It seems to have been conceded that, subject to some not very clearly defined restrictions, it is a rule of law that deeds and patents shall be so run as to include the land actually shown to have been surveyed with a view to its execution. This general rule is supported by a long and uninterrupted line of authorities extending back to the early history of the State. Person v. Round tree,
In Bradford v. Hill, supra, the Court laid down the rule the course and distance must be followed except where a natural boundary is called for and shown, or "when marked lines and corners can be proved to have been made at the original survey." Person v. Roundtree was cited with approval by ChiefJustice Taylor, in Cherry v. Slade,
In Cherry v. Slade, supra, Chief Justice Taylor said: (627) "Whenever it can be approved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistakendescription of the land in the patent or deed." In the same opinion the learned Chief Justice, on page 87, sets forth at length the facts in the case of Pearson v. Rountree, as they appear in a note,
In Houser v. Belton, supra, Chief Justice Pearson said: "In the leading case, Person v. Rountree,
In the leading case of Reid v. Schenck,
In Hough v. Horne,
In Baxter v. Wilson,
In order to avoid falling into error in a comparison of the authorities on this subject, it must be borne in mind that this is not a case, likeGraybeal v. Powers,
It would seem to be settled, if authority can put a question at rest, that a jury may depart from the words of a grant in fixing its location. The principle seemed to Chief Justice Taylor to have (630) been a rule of property when he said, in the opinion in Loftin v.Heath,
But it was insisted that there was no evidence tending to show that the original location was different from that indicated by the courses and distances laid down in the grant, and especially that the plat attached to the grant, in connection with other testimony, was not competent as evidence of the location by an original survey different from that ascertained by running the calls of the grant. In Hurley v. Morgan, supra, Chief Justice Ruffin said (at page 432): "It is true (631) that the plat can not control of itself the words of the body of the grant, but it is by law annexed to the grant and always referred to therein as being annexed. When, therefore, it appears from it that the land surveyed is on the east side of the first line, it is acircumstance, with others, from which it may be inferred that in thecertificate of courses the surveyor reversed them by mistake so as totranspose the land and place it on the west side of that line."
In Redmond v. Mullenax,
The controversy hinges upon the question whether a call of "west 985 poles," indicated by the line 51 — 52 on the plat, used on the trial, was omitted from the grant by mistake. That call did not appear in the original grant, and on the diagram attached to the grant a line corresponding to that call was laid down and was follows by one corresponding to the next call, "south 544 poles." "A certified copy purporting to be a copy of the original survey on file in the Secretary's office" was introduced by the plaintiff, in which appeared the line, "west 985 poles." The statute (Code, sec. 2769) requires that the county surveyor, upon receiving the entry and order of survey, shall make the survey as soon as may be, "and make thereof two fair plats, *Page 393
and shall set down in words the beginning, angles, distances, marks and water courses and other remarkable places crossed or touched by or near to the lines of such lands, and also the quantity of (632) acres . . . and he shall transmit the plats to the office of the Secretary of State or deliver them to the claimant within one year, together with the warrant of survey, one of which, with the warrant, shall be filed by the Secretary, and the other annexed to the grant." This is the only means provided by statute for informing the Secretary of State as to what are the calls of the survey to be incorporated in the grant, and it is difficult to conceive how the surveyor could record upon the plat the "angles, distances, marks and water courses and other remarkable places crossed or touched by or near to the lines of such lands" unless it was contemplated by the law that on the side or foot of the paper containing the diagram should be written the more minute description mentioned in the statute, together with the courses and distances, all of which is to be embodied in the grant. That such is a common custom among surveyors is a matter of universal knowledge on the part of all whose business it is to be conversant with the practice in issuing grants. It must be admitted, at all events, that whether the certificate of calls for course and distance, which is the basis of the grant, be located or made by the statute a portion of the plat or not, it is certainly evidence filed with the Secretary to show what land was surveyed and intended by law to be covered by the grant issued in pursuance of the survey, and, being documentary evidence, a copy certified by the legal custodian was admissible in place of the original. Code, sec. 1342. The certificate of courses and distances, being properly before the Court, was certainly evidence, if it was not proof conclusive, that the Secretary made a mistake to the prejudice of the plaintiffs, and which they had a right to correct when he failed to follow the certificate of the proper officer authorized to make the original survey, and embrace in the grant the land covered by the courses (633) and distances set forth in his certificate, made of the original location in pursuance of the warrant. Cooper v. White,
The Court instructed the jury, among other things excepted to, in substance that the leading object in determining the location of deeds and grants was to ascertain the intent of the parties, which must ordinarily be determined by the description; but that where it is alleged that the description fails to express the intent of the parties on account of some mistake of the draughtsman, evidence in the shape of writings *Page 394 or circumstances may be considered by the jury as tending to show the mistake; and if they show it clearly, then the deed must be so construed as to express the intent of the parties by correcting it; otherwise, they would not so construe it.
The judge then called the attention of the jury to the testimony of the surveyor, Slagle, that, run according to the courses and distances laid down in the grant, the lines would cross themselves, and the last call would give out beyond the beginning corner and fail to reach Connely's Creek, on which a portion of the land is said in the grant to lie, and which is indicated in the diagram introduced in evidence. On the other hand, he called the attention of the jury, as bearing upon the question of mistake, to the fact that, by running the courses and distances contained in the certified copy of the original survey, the land would be located on the waters of Connely's Creek; that 10,000 (634) acres, the number paid for, instead of 640 acres, would be embraced in the boundary, and the survey would also conform to the shape of the diagram.
While the judge did not tell the jury that "the plat of itself could control the words of the body of the grant where no alteration was made or proposed in the grant," he did follow the doctrine laid down by ChiefJustice Ruffin, in Hurley v. Morgan, supra, that "the form of the plat" was a "circumstance, with others, from which it may be inferred that there was a mistake made by the Secretary," and did not go so far as did Judge Battle in his opinion in Coper v. White, supra, 389.
But this case is much stronger than that contemplated in Hurley v.Morgan, as making a bare diagram competent, because it tends to show by reason of its shape that the Secretary might have been led into a mistake by the certificate of the surveyor. For here it appears as an affirmative fact that the surveyor certified the courses and distances so as to conform to the shape of the plat; and the certificate and shape of the plat, as in the case of Cooper v. White, supra, are each corroborative of the correctness of the other. The principle is in no wise affected by the dictum in Literary Fund v. Clark,
AFFIRMED.
NOTE. — AVERY, J. Since the foregoing was written, on inspection, the original surveyor's certificate in the Secretary's office shows that it was written in the usual way, on the same paper, with and at the side and bottom of the diagram, and contains the course, "west 985 poles," which he intended the Secretary to insert in the grant, and which the Secretary by mistake failed to embody in the calls.
Redmond v. . Stepp , 100 N.C. 212 ( 1888 )
Redmond v. . Mullenax , 113 N.C. 505 ( 1893 )
Graybeal v. . Powers , 76 N.C. 66 ( 1877 )
McNeely v. . Laxton , 149 N.C. 327 ( 1908 )
Watford v. . Pierce , 188 N.C. 430 ( 1924 )
Cody v. . England , 221 N.C. 40 ( 1942 )
Powers v. . Baker , 152 N.C. 718 ( 1910 )
S. v. . Jenkins , 164 N.C. 527 ( 1913 )
Lee v. . Rowe , 172 N.C. 846 ( 1916 )