Both plaintiff and defendant claimed under one Cox. He originally owned the land, described in the annexed diagram, by the letters C, B, A, D. In 1787, he made a deed to Nathaniel Farrar for that part of the land next to the Catawba river, described as follows: "Beginning at a red-oak on the bank of the river (C) runs S. 44, W. 127 poles to a spanish oak, in, or near Richman's line; thence S. 46, E. 120 poles to a stake, near Bonner's corner pine; thence N. 44, E. to a stake on the bank of the river; thence up the river to the beginning." This is the land claimed by the defendant.

, SEE 50 N.C. 425.]

On the 6th of August, 1788, Cox conveyed the other end of the tract to one Alexander Nelson, and it is thus described in the deed: "Beginning at red-oak (A) and runs N. 46, W. 120 poles, to a black-jack (B), thence N. 44, E. 127 poles to a spanish oak, Nathaniel Farrar's corner; thence with his line S. 46, E. 120 poles, to a pine; thence with Cobb's line to the beginning." This was the conveyance under which the plaintiff claimed title, and he insisted that Farrar's line was at M. N. The defendant contended that it was at K, I, and it was conceded that if M, N, was the line, the defendant was a trespasser, and plaintiff had a right to recover. If, however, Farrar's line was established to be K, I, the defendant would be entitled to a verdict. In running the second line of the plaintiff's deed from B towards C, the distance gives out at K. In running by Nathaniel Farrar's deed from C towards B, the distance gives out at M. The call is for a spanish oak, at or near Richman's line, but there was no evidence of any spanish oak at M, or at any other point on the line C, B; there was some evidence tending to show that it had stood at K, and that K, I, was Farrar's line. There was some evidence, also, that M, N, was the actual line.

The Court charged the jury, that if the evidence satisfied them that Farrar's line was, in fact, either M, N, or K, I, they would find accordingly; but if the evidence was not sufficient to satisfy them where Farrar's line, in fact, was, then, inasmuch as both, plaintiff and defendant, claimed under Cox, and he conveyed to Farrar, under whom defendant claims, before he did to Nelson, under whom the plaintiff claims, they would first ascertain where the calls of course and distance, according to Farrar's deed, would reach to, and make the corner and line of that tract conform thereto, and having thus established the line of the Farrar tract, they would run the lines of the Nelson deed to it, regardless of course and distance. Defendant excepted.

Nathaniel Farrar had conveyed to John Farrar, through whom the defendant claimed title, and it was proposed by the plaintiff to give in his declarations while he owned the land, as to where the line of the Farrar tract was. This was objected to by the defendant, but admitted by the Court. Defendant excepted.

In the deed of one, the intermediate grantors in the chain of title to the defendant Fite, another tract of land is described as beginning at C, and among the other descriptions, the deed sets forth that this tract was "part of a patent granted to Robert Abernathy, 19th of September, 1783," one of the calls of which, is, for a Spanish oak in or near Richman's line, and it was urged that this showed where the Richman line was, and that, therefore, he had a right to run to K, as being in accordance with that call. The Court charged the jury, that there was no evidence where the Richman line was. Defendant excepted.

Verdict and judgment for plaintiff. Appeal by defendant.

PEARSON, J.

That the distance set out in the deed from Cox to Nelson, is controlled by the call for "Nathaniel Farrar's corner, thence with his line, c.," is settled by Corn v. McCrary, 3 Jones' Rep. 496. The location of this corner and line, can only be made by the "course and distance" set out in the deed from Cox to Farrar, and it was contended that as it depended on course and distance, it was no more certain than the line arrived at by the course and distance in the deed from Cox to Nelson, and, therefore, ought not to control it. We do not concur in this view. The deed from Cox to Farrar, has nothing to depend on but course and distance. It was made first, and is to be first located. Afterwards, when Cox made the deed to Nelson, besides course and distance, he adds the material description, "Nathaniel Farrar's corner, — thence with his line," c., showing thereby, that it was his intention to convey to Nelson the residue of the tract formerly owned by him, a part of which had been conveyed to Farrar, and excluding the idea that he intended to leave a small strip between the two undisposed of. So that Farrar's corner, and Farrar's line, whether marked or unmarked, and in whatever manner it is ascertained, whether by course and distance, or otherwise, is made the boundary of the land conveyed to Nelson. In other words, Cox, having conveyed to Farrar a part of the original tract, intended to convey the residue to Nelson, and the call for Farrar's corner and line, controls the course and distance, in order to carry this purpose into effect.

In respect to the question of evidence, we concur with his Honor. There is no reason why the declarations of Farrar, while he was the owner of the land, are not admissible in evidence against those claiming under him.

In respect to the question as to Richman's line, we also concur with his Honor. There was no evidence by which the jury could locate that line; and supposing it to have been located, the call for "a spanish oak, in or near Richman's line," would not control course and distance, because the spanish oak could not be found; and the word "near," is not sufficiently certain. How near? One pole or fifty? Either would satisfy the term "near;" Harry v. Goodman, 1 Dev. and Bat. Rep. 76. There is no error.

PER CURIAM, Judgment affirmed.