Burke County NcArchives Court.....Ephraim Greenlee, William Tate Heirs V. 1819
************************************************
Copyright.  All rights reserved.
http://www.usgwarchives.net/copyright.htm
http://www.usgwarchives.net/nc/ncfiles.htm
************************************************

File contributed for use in USGenWeb Archives by:
Guy Potts http://www.genrecords.net/emailregistry/vols/00017.html#0004214 January 19, 2009, 9:31 pm

Source: Nc Reports
Written: 1819

Den on the Demise of William Tate's Heirs v. Ephraim Greenlee

From Burke

November 1819

Boundary is a question of fact, or of law and fact combined, and proper only 
for the decision of the Jury. If the presiding Judge in his charge to the Jury 
intimate an opinion as to the fact, it is a good ground for a new trial; for 
the act of 1796, ch. 4, declares, "that it shall not be lawful for any Judge 
in delivering a charge to the Jury, to give an opinion whether a fact is fully 
or sufficiently proved, such matter being the true office and province of the 
Jury."

The Defendant claimed title to the land in question, under an older grant than 
under which the Plaintiff claimed; and the question between the parties arose 
from the boundaries called for in the Defendant's grant. This grant called for 
six hundred and forty acres, "lying in the county of Burke, on the waters of 
Silver Creek, bounded by lands of his own (Greenlee,) John Bowman, John Mackey 
and Job Morgan: beginning at Bowman's south east corner black oak, thence with 
Mackey's land south 23 degrees east 354 poles to a post oak on the side of a 
ridge, thence ease 230 poles to a pine on the side of the road leading from 
Burke to Broad river, thence north 68 degrees west 89 poles to Morgan's corner 
black oak, thence north 18 degrees east 92 poles to a stake, thence west 295 
poles to a stake, on Bowman's line, thence south 46 poles to the beginning." 

The question was where the fifth line should terminate? If it terminate at the 
distance called for in the grant, no part of this tract will adjoin other 
lands of the Defendant (Greenlee,) nor will any part of the lands claimed by 
the lessors of the Plaintiff be covered by the Defendant's grant. If the fifth 
line be extended a considerable distance beyond that called for in the grant, 
it will reach a tract of land belonging to the Defendant, and the Defendant's 
grant will cover the lands claimed by the lessors of the Plaintiff. The Court 
charged the Jury, that the fifth line terminated at the end of the distance 
called for in the grant. A verdict was found for the Plaintiff; and a rule for 
a new trial being obtained, and on argument discharged, the Defendant appealed.

Henderson, Judge: From the case it appears that the Judge charged the Jury 
that the fifth line of the Defendant's grant terminated at the end of the 
distance. From viewing the grant and the plat only, it is quite probable that 
we as Jurors would arrive at the same conclusion. But, as has been frequently 
said during the present term, boundary is a question of fact, of law and fact 
combined, and proper only for the decision of the Jury. For the purpose of 
giving the decision of the question to the proper tribunal, there must be a 
new trial.


File at: http://files.usgwarchives.net/nc/burke/court/ephraimg756wl.txt

This file has been created by a form at http://www.poppet.org/ncfiles/

File size: 3.4 Kb