, SEE 11 N.C. 27.]

The defendants were in possession, and claimed the land under a patent granted to Thomas Williams, Joseph Ferebee, and John Williams, dated 2 December, 1807, described and bounded as follows: "A tract of land, etc., 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," etc., 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. (66)

Defendants contended that the island X was, at 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 1800 they had it surveyed by Samuel Ferebee, and that the land covered by plaintiff's patent was included in the survey; they ran 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 1 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, etc., 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 (67) side of the island, the other on the 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 ran 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 their 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 were 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 plaintiffs would be entitled to recover that portion of the land west of the (68) 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 defendant, 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.

HENDERSON, J.

What are the termini or boundaries of a grant (71) 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 (72) whole of it 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 Herring Gut instead of the great shoal; whereas, if (73) they ran 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 breach. The words of this release, a copy whereof is appended to the record, was sufficiently comprehensive to embrace a case before breach.

PER CURIAM. No error.

Cited: Marshall v. Fisher, 46 N.C. 117; Spruill v. Davenport, ib., 205; Clarke v. Wagoner, 70 N.C. 707; Mizell v. Simmons, 79 N.C. 193; Strickland v. Draughan, 88 N.C. 318; Redmond v. Stepp, 100 N.C. 218; Sherrod v. Battle, 154 N.C. 352; Lumber Co. v. Bernhardt, 162 N.C. 464; Lumber Co. v. Lumber Co., 169 N.C. 104; Power Co. v. Savage, 170 N.C. 628.