Wayne County, NC - BRADBERRY vs HOOKS - 1816 ~~~~~~~~~~~~~~~ NORTH CAROLINA REPORTS, EMBRACING THE "CAROLINA LAW REPOSITORY," CONTAINING "OPINIONS OF AMERICAN JURISTS, AND REPORTS OF CASES ADJUDGED IN THE SUPREME COURT OF NORTH CAROLINA." VOLS. I AND II. --ALSO-- "NORTH CAROLINA TERM REPORTS," OR "CASES ADJUDGED IN THE SUPREME COURT OF NORTH CAROLINA, FROM JULY TERM, 1816, TO JANUARY TERM, 1818, INCLUSIVE. BY J. L. TAYLOR, (Chief Justice of the Supreme Court.") -------------- SECOND EDITION WITH NOTES REFERRING TO SUBSEQUENT ENACTMENTS OF THE LEGISLATURE, AND DECISIONS OF THE COURT OF CONFERENCE AND THE SUPREME COURT, MARGINAL ABSTRACTS, A TA- BLE OF THE CASES REPORTED, AND A NEW INDEX, BY WILLIAM H. BATTLE, ESQ. One of the Judges of the Superior Courts of Law and Courts of Equity of the State of North Carolina. --------------- RALEIGH: PUBLISHED BY TURNER AND HUGES. 1844. ALLEN'S ADM'R vs. PEDEN--Page 638. TAYLORS'S N.C. TERM REPORTS. AT JULY TERM, 1816. BRADBERRY vs. HOOKS-Page 1. When a patent calls for a stake in the line of another patent, and then a certain course "with or near" a line of the latter, it must stop at the intersection with the first line of the latter, if the second line from that point would run with or near the line of the patent called for, but would not do so if run from the intersection with the second line. The court will not decide on the admissibility or effect of evidence respecting the actual running a line, when such evidence was not introduced; as such a question is purely abstract This was an action of Tresspass qaare clausum fregit, tried before SEAWELL, J. at Wayne Superior Court, where a verdict was found under the charge of the Judge, in fa- vour of the defendant. A motion for a new trial was made and overruled; from which judgment the plaintift appealed to this court. The case as disclosed by the testimony, and the charge of the Judge, as stated by himself, were as follow: The trespass for which the action was brought, was charged to have been committed between the parallel lines in the Diagram B C and N Y. Hook's 90 acre patent was ten years older than the one under which the plaintiff claim- ed; Hook's 100 acre patent is seven or eight years younger than the plaintiff's. The boundaries of Hook's 90 acre pa- tent are delineated in the Diagram, and the beginning is at the index at E, then to F, G, H, and I, at another index, and thence to the beginning. The location of Hook's 100 acre patent is also represented. The controversy between, the parties, was, Whether the Plaintiff's patent shall stop at Hook's line at the letter N or should continue the same course to Hook's line on the other side of the patent at letter O, and even on to B. at some distance beyond. 444 TAYLOR'S N. C. TERM REPORTS. The words of the plaintiff's patent were, "Beginning at a pine, in or near his own line, and runs S. 240 poles to a stake in William Hook's line, then with or near his line N. 73 E. 400 poles to a stake, then N. 305 poles to a pine, thence to the beginning." The plaintiff proved old marked lines from between A and N, and one witness said that when they were surveying the land since the present action, he saw a chopped tree in Hook's 90 acre patent, about 40 or 50 yards from the corner, in imitation of a marked tree. Upon cross examination he admitted that he did not show it to the surveyor. Part of this patent was but thinly timbered. Several of the plaintiff's witnesses also proved old mark- ed trees between the corners S and R of Hook's 100 acre patent; and the Deposition of old Hooks, the paten- tee, stated, there were marked lines when his patent was run out. This patent of Hook's called for a beginning in Bradberry's line; which begining is at S. The same witness said that Bradberry informed him that the patent in dispute was not surveyed till after the grant came out. The plaintiff then proved by the same witness who spoke of the chopped tree in the 90 acre patent, that about 41 years ago he was shown a pine by Ritter, near C, as the cor- ner of the patent in dispute, and it was then a marked tree resembling a corner. Ritter was one of the chain bearers to Bradberry's patent. The same witness further stated, that the patentee informed him that the land was not actually surveyed till after the patent. They had begun to survey, it; but it began to rain, and discovering that they enroached upon old patents, they retired to a house and there platted it. He also said, that he had seen the tree years back; was as well acquainted with the place as with his yard; and thinks it was near C; but he could not find it since the dispute, nor discover any vestige of it, though he had frequently searched, and particularly for the surveyors: That it was in the goose pond, where there were a number of pines, some of which now appear to be dead. The witness added, that Ritter the son in law of the patentee, claimed this goose 445 TAYLOR'S N. C. TERM REPORTS. pond under the patent; and upon his cross examination re- specting what the patentee had said, he stated the assertion of the latter to have been, that his second corner was on the west side of Back Marsh on the hill, and that Hooks's Ne- groes had cut it down. The Judge, in his charge to the jury, directed them that as the first line of the patent called for a stake in Hooks's line, and the second line called for a course and distance running with or near Hooks's patent, to another stake, the patentee was precluded by the terms and expressions of the grant, from going beyond Hooks's first line; but, in confor- mity with the words of the patent, must run to the corner called for, it being near or with Hooks's line as represented on the plat; and that the boundary of the patent to Bradber- ry could not be extended beyond the first line of Hooks's, though it might be proved by a hundred witnesses, that the land had been surveyed before the patent issued, and that the surveyor actually run across, marking the trees, and made a corner. That the patent calling for a stake, which the court considered as an imaginary point, and this to be in Hooks's line, whether the distance be longer or shorter, the first line must terminate there; and that the marked pine, if sufficiently proved to have been near C was, for the same reason, to be disregarded, and that, in point of Law, the defendant was entitled to their verdict. 446 TAYLOR'S N. C. TERM REPORTS. DIAGRAM. Mordecai, for the Appellant. The question to be decided by the court in this case, is not whether the evidence offered by the plaintiff was suffi- 447 TAYLOR'S N.C. TERM REPORTS. cient or insufficient to entitle him to a verdict, but whether admitting its sufficiency in point of fact, it was admissible in point of Law. In other words, the question is, whether, when a deed or patent calls for a stake in a line, any evi- dence is admissible to show, that in fact, the line, is not the place of termination. Another question is, whether, when there are two lines, each answering the description of the patent, the patentee must, of course, stop at the line he first reaches, or, whether he may show, by evidence, that the se- cond line is the one called for by his patent. The several matters of evidences stated in the case do not require to be noticed, as his Honour who tried the cause below gave it in charge to the Jury, "That the patentee was precluded, by the terms and expressions of the grant, from going beyond Hooks's first line, though it might be proven by a hundred witnesses, that the land had been surveyed before the patent issued, and that the surveyor actually ran across, marking the trees, and made a corner. That the patent calling for a stake, which the court considered an imaginary point, and this to be in Hooks's line, the first line must terminate there; and that the marked pine, if sufficiently proven to have near C, was, for the same reason, to be disregarded; and that, in point of Law, the defendant was entitled to their ver- dict. Therefore, whatever impressions the evidence offered by the plaintiff might have made on the jury; although, from the evinence of the marked tree in the triangle, they might have been convinced that the surveyor did run across; although, from the declarations of the patentee, extorted from the witnesses, on the examination, that his corner was on the hill at B; although the declarations of the chain car- rier, that the pine near C, marked instead of the stake, was the third corner of the patent; and however strongly these impressions might have been confirmed by the recognition of old Hooks, of the line B C as the patent line, within a few years after the patent was granted, by his calling for a beginning in that line at the letter S, and by his evidence that it was amarked line at that time, yet they were direct- ed to forego all these considerations, and instructed, that in 448 TAYLOR'S N.C. TERM REPORTS. point of Law, the Plaintiff could not recover, but must stop when the first line of his patent first met Hooks's line. Of this, as we humbly conceive, misdirection of the court, we complain, and of this we ask a revision. And, first, we say, that it the Bradberry patent, instead of calling for a stake in Hooks's line, had called for Hooks's line, that we might be permitted to show that the surveyor, actually ran to another place. Secondly, that as the patent calls for a stake in Hooks's line, we may be permitted to show, that the stake called for, and to which the surveyor run, stands in another place. Thirdly, that as Hooks has more than one line, and we call for a stake in his line, we may show in which of his lines the stake stood. As to the first point. The only objection which can be raised to a party's showing by evidence that the actual loca- tion of his land varies from the description of the patent, is, that parol evidence is not admissible to contradict a deed. How it happened that this rule of evidence was first depart- ed from in cases of boundary, is not necessary to be enqui- red into. Perhaps the reasons given by MOORE, J.* may be sufficient. Whether they are so or not, by the repeated de- cisions of our courts it has become a rule, too well establish- ed to be overturned by any thing short of legislative author- ity, that the description contained in a deed or patent may be corrected by parol testimony. In Braford v Hill, it was argued by counsel and assent- ed to by the court, that where there was a marked line, va- rying from the description given in the patent, that line should be regarded as the true one. In Branch v Ward, the patent called for a south course. But upon proof that the surveyor actually ran North, that there was a marked line agreeing, in appearance, with the date of the patent, and a corner marked at the termination, the plaintiff was permitted to recover. Here parol evidence was admitted to show, that though the deed called for a south 449 TAYLOR'S N.C. TERM REPORTS. course, it was mistaken, and that the surveyor ran north. In Eaton v Person, the deed, after describing, the first line, called for a course and distance which would leave out the piece in dispute. Evidence was given that the land was comprehended within three lines actually run and marked, and the river. And on this evidence the patentee prevailed, contrary to the terms of his deed. Here the parol evidence contradicted the course and dis- tance of the deed, and threw out one line described therein and substituted two others; making the land a square instead of a triangle. In Beatty's Case tbe judge said,"If a course and distance be called for, and there is a marked line and corner, variant from that course, which is proven to be the line made by the surveyor as the boundary, that marked line shall be pur- sued." Here parol evidence was permitted to contradict the deed. Person v Roundtree, in note, decides that the marked line, really made as the boundary, is to be followed rather than the course mentioned in the patent. Loften v Heath, the defendant's patent called for a cy- press, as the beginning. He contended, that a pine was the beginning. Both trees were found. The Judge says, "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 in our courts have allowed of such a departure in order to fix the location where it really was made originally. It must now be taken as the law of this country, that not withstanding any mistake or wrong description, in either the plat or patent, the party may, by parol testimony, show the mistake, and prove the location of his land by testimony, dehors the patent." Blount v Benbury. "There have been may decisions in tbis country which warrant a departure from the line descri- bed in the deed or patent, to follow a marked line which the Jury believe the true One. 450 TAYLOR'S N. C. TERM REPORTS The cases abundantly prove the uniformity of decision, which has heretofore prevailed in our courts, as to the com- petency of parol evidence to rectify a mistaken location con- tained in a patent. In not one of the cases mentioned, was there such a latent ambiguity, as by the English Law, might be explained by parol. Every case is one of direct contradiction. It is a rule of evidence established by our courts, from the necessity of the thing and the situation of the country. It has been acted upon for years, and by every Judge who has presided in our courts. Scarcely a question of boundary has been tried where this rule of evidence has not been made subservient to the purposes of justice and ac- curate investigation. How is the present case to be distinguished from those which have gone before it, where this rule has prevailed? Where a course and distance are called for in a deed, as the only guide to the point at which the line should stop, if the deed were solely to be regarded, no parol evidence could be received. Yet, in the case of Branch v Ward, it was re- ceived. The case of Loften v Heath, went still further. The patent not only called for a course and distance, but a cypress, as the beginning; an object susceptible of being as clearly identified as the line of another tract. Yet the parol evidence was admitted to prove the beginning at a pine on the opposite side of the tract, by which the courses of the pat- ent were reversed. Wherefore, then, shall we not be per- mitted to show, that instead of stopping at Hooks's line, we actually ran on to the letter B. Even in the case of natural boundary, which, by some gentlemen, is regarded with su- perstitions reverence, the same thing has been done. I do not now allude to the Cat-tail case. Perhaps in, that, there was something like a latent ambiguity. But as I have cited Nisi Prins cases from books, I will now cite one from memo- ry, which in point of authority with me and with the people of this State, is equal to that of any decision made by a single Judge. In the ease of Glasgow v Wooten, the plaintiff's deed called for a beginning at Cotentnea Creek below the mouth of the Brushy branch, then to the Brushy branch, and 451 TAYLOR'S N. C. TERM REPORTS. with the same to where it crossed the back line of the pat- ent, with the patent line to the road; then a course and dis- tance to a maple in a swamp; thence to the creek, and down the creek to the beginning. The Brushy Branch, a short distance from the mouth, forked. The north prong kept that name, and the south the name of the Spring Branch. The land in the fork was in dispute. If the plaintiff was confined, by the words of his patent, to follow the Brushy Branch, he had no title, nor unless he could follow the Spring Branch contrary to the words of his deed. But ac- cording to the truth of the case, the land was his. He prov- ed by witnesses the declarations of James Glasgow, under whom he claimed, and these, together with other circum- stances convincing the jury that the Spring Branch was meant, though the Brushy Branch was called for, he, under the charge of the court, obtained a verdict, contrary to the terms and expressions of his deed. Here was no latent am- biguity. There was a Spring Branch and a Brushy Branch. We called for the Brushy Branch, and were permitted to prove the Spring Branch as our boundary. What more do we ask here? We call for one place as our boundary, and ask leave to prove another. But if that, which has so long been considered a rule of evidence in this State, is now to be rejected, I apprehend that the second point is with the plaintiff. If when a patent merely calls for the line of another tract, no evidence can be received to show that the line had a different termination, yet when it calls for a certain object, parol evidence may show where that object is, although the patent says it is to be found in the line of another tract. If indeed it can be established by any course of abstract reasoning or physical experiment, that a stake is a mere imaginary point, then the calling simply for a line or for a stake in a line will amount to the same thing. But suppose the patent had called for a noted rock, standing in a line, and the rock stood, in fact, out of the line, there can be no doubt but that the line would terminate at the rock. So of a tree: it makes no odds, whether alive or dead, or whether it remained attached to 452 TAYLOR'S N. C. TERM REPORTS. the earth by the roots or driven in the form of a stake by the hands of man. Wherever that rock, tree, or stake is, the line must terminate. The line in which it is described as standing, is a mere index to find the place. We do not contradict the deed by leaving the index: We fulfil it. You are sending your servant to Raleigh, who perhaps has not been accustomed to great cities, and thinking that he may be embarrassed in finding Brame's Hotel, among the theatres, palaces, churches, reading rooms, museums, market places, and stone fountains, you tell him that he will find it in that section, division, or ward of the city, which is called St. Domingo. Now this direction happens to be mistaken. But the object being to discover Brame's Hotel, and St. Do- mingo being given merely as an index, the most obsequious servant would be justified in going to the place, disregard- ing the index. Now perhaps it may be, that frequently it may happen that a surveyor calls for a stake without, plant- ing one. If so, the point is imacinary; and the line, where it is said to be, is the boundary. But this is not necessarily th case. It is not a matter of Law that a stake is an imagi- nary point: It is a matter of fact for inquiry by a jury. As therefore the judge, in his charge to the jury, stated as a matter of Law, that a stake was considered as an imaginary point, I humbly conceive for this cause, there should be a new trial. But if I am unfortunate upon this point and it is a conclu- sion of law, and of course, not to be contradicted that a stake is an imaginary point and, therefore, that whether a line of another tract, or a stake in such a line, be called for, amounts to the same, I will pass on to the third point; only regretting in this place, for the sake of Mary's martyrs, that the fact does not correspond with the legal conclusion. Thirdly, The Bradberry patent calls for a course south 240 poles to Hooks's line. Now it appears from the plat return- ed by the surveyor, that a line running south from the be- ginning would intersect two lines of Hooks's 90 acre patent. Upon what principle of law are we prevented from going to the second line, if the jury believe that to be the correct 453 TAYLOR'S N. C. TERM REPORTS. one? Here is a latent ambiguity. The patent calls for a line: It appears there are two lines. Is it not like the case of a gift to your son John, where you have two of the name; or a gift of White Acre, where you have two White Acres? Yet his Honour, in his charge to the jury, says that the pa- tentee is precluded, by the terms and expressions of his grant, from going beyond Hooks's first line. It is true that the second line of the Bradberry patent calls, "with or near Hooks's line, N. 73 E." And stopping at the first line and running the course called for, will be near Hooks's line which is about N. 80 E. Whereas if it runs on to the sec- ond, it will not run so near Hooks's line, which is about N. 45 E. But this was matter of consideration for the jury, as to the probability or improbability that Bradberry stopped at the first line. It afforded no conclusion of law to pre- vent the plaintiff explaining the ambiguity arising from the two lines. And neither by this circumstance, nor by the terms and expressions of the grant was the plaintiff preclu- ded from going beyond Hooks's first line. Gaston, for the appellee. As no survey was actually made in the case, there is not only no reason for departing from the words of the grant, but the utmost mischief would follow from establishing a precedent of the kind. If in any case such a departure is allowable, it can only be for the purpose of sustaining an actual location, which being once established, furnishes a standard by which to correct the mistaken description in a grant. There the transition is from error and mistake to certainty, and to a fact by which land was originally appro- priated. Here it would be from the certainty of a grant, to a plat proved to be not the result of an actual survey, but made by the surveyor in a house, before the lines were run. The charge of the Judge was therefore correct, in in- structing the jury that the law was in favour of the defend- ant. But even were the charge incorrect in any of its gene- ral statements, as to what the law would have been if the lines had been actually run and marked, the court will not award a new trial, where a second verdict must necessarily 454 TAYLOR'S N. C. REPORTS. be found for the defendant. So far as the evidence proceed- ed, it completely authorised the instruction given to the ju- ry. Beyond the point where the evidence stops there is no way of ascertaining whether the charge was correct or not. It was merely hypothetical, and put by way of illustration. At all events, there is nothing for this court to decide upon as there is no state of facts to raise the question of law. PER CURIAM. We are all of opinion, that the plaintiff is concluded by the terms of the grant from claiming beyond the first inter- section with Hooks's line; inasmuch as the course, N. 73 E. called for in the grant, will run as also called for, with or near Hooks's line. Whereas if the first line is to proceed to the second line, or to be extended to the letter B on the plat described, the second line will not run with or near Hooks's line. As to the admissibility or effect of evidence of where the line actually was run when surveyed, that is an abstract question, not necessary, at this time, to be determined. We are, therefore, of opinion, that the rule for a new trial should be discharged. __________________________________________________________________ Copyright. All rights reserved. http://www.usgwarchives.net/copyright.htm This file was contributed for use in the USGenWeb Archives by Grace Williamson Turner Transcribed and posted by Lori Price Cobb ___________________________________________________________________