Pasquotank County NcArchives Court.....Tatem, V. Paine & Sawyer 1825
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Deb Haines http://www.genrecords.net/emailregistry/vols/00003.html#0000719 January 25, 2009, 5:32 pm

Source: Nc Reports Vol 11, 1897
Written: 1825

December Term 1825

DOE on dem. of Tatem and Baxter v. PAINE AND SAWYER.

From Pasquotank.

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 pointers or guides to it; and, therefore, where 
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.

When a Judge below is correct in his statement of a rule of law, but makes a 
misapplication of it, and it is obvious, from the finding, that the jury were 
led into no mistake thereby; it seems that a new trial will not be granted 
because of such misapplication.

If a release be offered in the course of a trial to render a witness 
competent, and is read without any objection made at the time as to the want 
of proof of its execution, by the subscribing witness, such objection shall 
not avail after verdict as a ground for a new trial.

Ejectment. The lessors of the plaintiff claimed under a grant from the state, 
dated 18th of March, 1823, to themselves, for the island marked X in the 
annexed diagram:



The defendants were in possession, and claimed the land under a patent granted 
to Thomas Williams, Joseph Ferebee and John Williams, dated 2d of December, 
1807, described and bounded as follows: "A tract of land, &., known by the 
name of Betsy's Marsh or Island, beginning at Herring Gut (A), the beginning 
place of John Humphries' entry, running N. 79 E. 6 chains and 30 links," &c., 
giving the courses, "inclosing an entry made by John Humphries, Esq." These 
courses and distances are designated on the diagram by the letters A, B, C, D, 
E, F, G, H, I. From E the patent calls for a course "South 80 West, forty 
chains, along the North Channel;" the distance would terminate at f; the 
course and distance at F. If the course and distance are followed from f, the 
lines will run gg, hh, ii, and take nearly one-half of the island X, but the 
lines would be in the navigable waters of the North Channel.

The defendants offered to read a copy of John Humphries' entry to enable the 
jury to discover the proper boundaries of the patent; this was objected to, 
but the Court permitted it.

Defendants contended that the island X was, at (66) the date of Humphries' 
entry, and at the date of the patent to John Williams and others, called, 
known and esteemed a part of Betsy's Marsh or Island; and that the sluices had 
been enlarged by storms, and that there is not, nor never was, a channel 
between the island X and the main island; and to prove that fact, and also to 
show where the shoal at the head of the channels was situated, among other 
witnesses, they called John and Thomas Williams. It was objected that they had 
conveyed with warranty to Sawyer, one of the defendants, all their interest in 
the land, and the plaintiffs read a copy of the deed of bargain and sale to 
show it, which did contain a warranty to Sawyer for ten-twelfths of the land.

John and Thomas Williams then produced a release from Sawyer, which was read 
without any objection at the time to the reading of it, but an objection was 
taken that the release did not destroy the interest of the witnesses, as 
Sawyer had no right of action on the warranty before eviction. The Court held 
that the interest of the witnesses was removed by the release, and they were 
sworn. They deposed that they purchased Humphries' entry; that in the year 
1800 they had it surveyed by Samuel Ferebee, and that the land covered by 
plaintiff's patent was included in the survey; they run around all the islands 
(X being one) and cornered at the shoal extending from the point J, and so 
down to Herring Gut, the beginning. The North and South Channels separate one 
mile to the west of these islands, but the shoals of sand are covered by water 
down to the island. The witnesses John and Thomas Williams had been familiar 
with the place for forty years, and it was all called and known by the name of 
Betsy's Marsh; that the sluice between the island X and the main island, was 
so shallow that cattle, &., crossed it with ease; that there never was any 
channel through it, though canoes could go through it; that there are two ship 
channels, one running on the north side of the island, the other on the (67) 
south, separating a mile above the island and uniting again at the inlet.

It was proven that the plat sent to the Secretary of State, on which the 
patent of Williams was obtained, was not made from actual survey, but that the 
county surveyor took it from the survey of other persons.

Plaintiff then called Samuel Ferebee; he could not say whether he included the 
small islands or not in the survey; he run the lines as he was directed by 
Thomas and John Williams; nor had he any recollection of having run by 
Humphries' entry, or any other entry or paper, or that the county surveyor 
made his plat from the survey of witnesses. 

He produced his field book of the survey, and they did not correspond with the 
calls of the patent.

The Court informed the jury that the principal question for them was, whether 
the land covered by the grant of plaintiff's lessor was included within the 
bounds of the patent, under which defendants claimed. If it was, then they 
should find for defendants, as theirs was the oldest grant. To ascertain the 
true boundary they would be guided by those calls in the patent which appeared 
to them most certainly to make out the intention of the parties; that there 
was no dispute until they came to the letter E in the plat; the call thence 
was, "North 80 West, 40 chains, along the North Channel;" it was not disputed 
that the course was variant from the North Channel; the course, therefore, 
must be disregarded, and the natural boundary followed, which, it, was 
admitted, would be extended to f. From that point, if there was no other calls 
in the patent, course and distance would be their guide, although the lines 
might run over land not liable to be entered, as land covered by navigable 
water; for no objection could arise in running an ideal line across navigable 
waters to ascertain the true boundaries of land on the banks of such navigable 
waters. The course and distance followed from the point f would carry them 
through the island X and terminate at ii, then the plaintiff's (68) would be 
entitled to recover that portion of the land west of the line. But there were 
other calls in the grant which the jury might look to, and be governed by, if 
these calls gave them greater certainty as to the true boundary. The patent, 
after calling for course and distance, has these words, "inclosing an entry 
made by John Humphries, Esq." They were at liberty to look at the courses of 
that entry, and be governed by its boundaries in the same manner as they would 
by a known line of a neighboring deed, which was called for when the course 
and distance would not go to such known line.

The counsel of the plaintiff then requested the Court to charge the jury as to 
the effect of Samuel Ferebee's field notes of the survey. The Court said that 
the field book of Ferebee was not evidence, unless the parties consented that 
it should be so deemed; it might be used to refresh the memory of the witness, 
but for nothing else; and the jury was directed to pay no attention to it. 
There was a verdict for the defendants, and the lessors of the plaintiff moved 
for a new trial.

1. Because the release from Sawyer to John and Thomas Williams was read 
without having been duly proved by the subscribing witness thereto.

2. The release, if properly proved, would not render J. and T. Williams 
competent.

3. The entry of Humphries should not have been received in evidence, nor 
Ferebee's survey.

4. The Court misdirected the jury as to the law.

These reasons were overruled by the Court, and judgment was rendered, 
whereupon the lessors of the plaintiff appealed.

11-9

L. Martin, for defendants.—One objection taken by the plaintiff's counsel is 
that the Judge permitted a copy of Humphries' entry to be read in evidence to 
the jury. It is a sufficient answer to this objection to say that this entry 
is referred to in the description of the land con-(69) tained in the grant 
under which the defendants claim; and, therefore, it would have been an error 
in the Judge to forbid its being read to the jury.

The next objection in the course of the trial was that the paper writing 
signed and sealed by M. K. Sawyer to John and Thomas Williams, was not such a 
release as entitled the defendants to examine those witnesses. This objection 
is well answered by referring to the copy of the release, which appears to be 
as full and absolute as possible.

The counsel for the plaintiff, after the jury returned their verdict for the 
defendants, then moved for a rule to show cause why a new trial should not be 
granted, and assign several reasons.

First, because the release from Sawyer to the Williams' was read without 
having been duly proven by the subscribing witness to said release.

It is a sufficient answer to this to say that the counsel make this objection 
too late. 

As the objection was not made at the time the release was offered, nor till 
after verdict, it must be considered as waived by them at the time they should 
have taken the exception, and the verdict cures the defect, if any it was. It 
is not pretended that any fraud was practiced in the introduction of this 
paper by the defendants or their counsel, nor that the paper was not examined 
by the defendant's counsel; but the case shows that they paid strict attention 
to this paper at the time it was offered, for they take exceptions to the 
legal effect of the paper, and insist that it is not such a release as 
entitles tho defendants to examine the Williams. And, furthermore, this is no 
ground to call on the Judge for a new trial, as it is not his duty to examine 
every paper offered in evidence by the parties before it can be read, but his 
duty is to judge of the legal effect of the evidence after it is offered.

The second ground for a new trial is already answered.
 
The third reason is, "the entry of Humphries should (70) not have been 
permitted to have been given in evidence, nor Ferebee's survey."

The first branch of this objection has been sufficiently answered. As 
to "Ferebee's survey," I must remark that the matter in controversy was 
whether the island which was claimed by the plaintiffs and described in their 
grant, was contained in the grant under which the defendants claimed. If it 
was then, of course, the plaintiffs could not recover. In order to show that 
it was, I contend that the defendants had a right to show everything in their 
power, and if the evidence did not go completely to prove the fact, it would 
go for what it was worth only. It was a matter to be left to the jury. 

The evidence was not improper, and therefore not exceptionable.

The fourth and last reason is, "the Court misdirected the jury in the charge 
as to the law."

This reason is made so general that it cannot be specifically answered. I have 
looked over the charge of the Court with attention, and am unable to see on 
what part of the charge this reason rests. In the Court below, I believe the 
objection was confined to the part of the charge that follows: "If there were 
no other calls in the patent, course and distance would be their guide, 
although the line might run over land not liable to be entered, or land 
covered by navigable waters, for no objection could arise in running an ideal 
line across navigable waters to ascertain the true boundaries of lands on the 
banks of such navigable waters."

I can see no objection to this part of the Judge's charge; and I feel 
confident, if a party shall not be allowed to pursue the actual line run 
because the North Channel has cut out part of Betsy's Marsh, that great 
injustice must be done to the party, for the statement shows sufficient 
evidence that on a place so exposed the wind is making alterations of boundary 
continually on the north side of the island.

Henderson, Judge, delivered the opinion of the (71) Court as follows:

What are the termini or boundaries of a grant or deed, is matter of law; where 
those boundaries or termini are is a matter of fact. It is the province of the 
Court to declare the first, that of the jury to ascertain the second. Where 
natural objects are called for as the termini, and course and distance and 
marked lines are also given, the natural objects are the termini, and the 
course and distance and marked lines can only be resorted to by the jury to 
ascertain the natural objects; they act as pointers or guides to the natural 
object. When the natural boundary is unique, or has properties peculiar to 
itself, these pointers or guides can have but little effect, in fact, I 
believe none. Where there is more than one natural object in the neighborhood 
answering the description, that is having common qualities, then those 
pointers or guides may be reverted to to ascertain where the object called for 
is, or which is the object designated. They do not then contradict or 
controvert natural boundary; they explain a latent ambiguity created by there 
being more than one object which answers the description. It is completely 
within Lord Bacon's illustration of the rule as to a latent ambiguity. The 
Judge was, therefore, right in his general observations, that natural 
boundaries must prevail over artificial. But this is rather a rule of law than 
of fact; it governs, properly speaking, him and not the jury. It was a 
misapplication of the rule to inform the jury that after arriving at the 
letter H, they were at liberty to pass through the island X on the way to the 
great shoal, including part thereof within the grant and excluding part. The 
rule must work both ways. If the grant includes the whole of Betsy's marsh or 
island, without regard to courses and distances, because called for by it, 
nothing but what is Betsy's marsh or island can be included in it by courses 
and distances. The island X was part of Betsy's marsh or island or it was not. 
If the first, the whole of it (72) was included in the grant; if it was not, 
none of it could be brought within it by artificial calls. But this error 
produced no effect; the jury included the whole of the island X. A new trial 
ought not to be granted, therefore, for this error. The survey of Humphries' 
entry, made by the Messrs. Williams, was admissible to show the extent of 
Betsy's marsh or island, for the entry and grant had the same calls. It was 
also proper to show that they, the Messrs. Williams, for they were witnesses 
on the trial, were uniform in their opinions on the subject, and I understand, 
from the Judge's charge taken together, that it was introduced for the first 
purpose; for throughout the jury are told that natural boundaries will prevail 
over artificial; by which I understand the Judge to say that in law the grant 
includes the marsh or island. I am inclined to think that the difficulties in 
this case have arisen from not attending to the description in the grant, 
which is marsh or island. If the island X could not pass under description of 
island, an island being land separated by water from other lands, and there 
being a sluice between the island X and what is called the main island, at all 
times having water in it, although fordable by cattle and hogs; yet it might 
pass under the description of marsh, for a marsh may include many islands, 
particularly when separated only by narrow and shallow sluices, and in the 
neighborhood of and surrounded by broad and deep waters, where such small 
separations would scarcely attract attention.

It is not the duty, or perhaps right, of this Court to value the evidence; but 
I think it would not be improper, in this case, to say, that after arriving at 
the letter H, if the line passed through the sluice, that is along it, there 
was no possible inducement after getting through it to go to the great shoal 
at the head of the channel, a terminus called for in the grant; only land 
covered by navigable water, which would pass, was included thereby; they would 
obviously have proceeded immediately to the (73) Herring gut instead of the 
great shoal; whereas if they run around the island X, and included it within 
the description, they were carried to the great shoal, and it then formed a 
proper terminus for their departure from the Herring gut, the place of 
beginning.

As to the objections to the release, the first as to its not being proven, 
comes too late, it should have been taken on the trial; the other is entirely 
unfounded, for an obligation or contract of any kind can as well be released 
before breach as after; the only difference is, that it requires more 
comprehensive terms to embrace a case before there is a broach. The words of 
this release, a copy whereof is appended to the record, was sufficiently 
comprehensive to embrace a case before breach.

Let the rule for a new trial be discharged.

Judgment affirmed.

Additional Comments:
North Carolina Reports, Volume 11
Cases Argued and Determined in the SUPREME COURT of NORTH CAROLINA.
For December Term 1825 and June Term 1826 
by Francis L Hawks (Vol. IV)
Annotated by Walter Clark
Richmond: James E Goode Printing Company, Printers
1897

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