Opinion
(December Term, 1831.)
The return of a processioner must set out the courses and distances in words at full length. And where the courses were expressed by abbreviations, and the distances in figures, the return was set aside. HENDERSON, C. J., dissentiente.
THE plaintiff sued out in the county court an order for the processioning of five acres of land lying in LINCOLN, adjoining the lands of the defendants, to which the processioner returned that he had run several lines, and had been forbidden by the defendants from proceeding further with the survey. Upon this return, the county court, under the Act of 1799 (Rev., ch. 541), appointed five freeholders to complete the (269) processioning, who made their return setting forth the courses in abbreviations, thus — n. for north, etc. — and the distances in figures instead of words. The defendants objected to the return, but it was confirmed by the county court, from which the defendants appealed.
Attorney-General and Hogg for plaintiff.
Gaston for defendants.
His Honor, Daniel, J., on the last circuit, affirmed the judgment, and the defendants again appealed.
When I observed that the first act on processioning, which is to be found in the Revisal, ch. 14, declared that any person whose lands were twice processioned according to that act shall be deemed and adjudged the sole owner of such land, and that it was supposed that clause gave a title to lands which might be twice processioned under the Act of 1792 (Rev., ch. 365), I could not but consider it as a proceeding fraught with danger to the rights of land proprietors, and felt myself altogether justified in throwing every legal impediment in the way of a title thus to be consummated. I was prepared to say that the processioner's return in this case was not made out according to the sixth section of the Act of 1792 (Rev., ch. 365), which declares that "the processioner shall make out a certificate in words at full length, for each tract by him processioned"; an objection which I should be at a loss how to get clear of in cases of minor importance. The act is imperative, and the processioner's certificate is not made out in words at full length. And for that reason the report must be set aside, with leave to the plaintiff to proceed further in the cause, as the law directs.
It is to be observed that the Act of 1823 (ch. 14) directs that lands shall be processioned, and the marks renewed once in every three years. And that he whose lands are twice processioned shall be adjudged the sole owner of such lands. The Act of 1792 leaves every person at liberty to have their lands processioned or not. If they elect to have them processioned, no particular time is stated in which it is to be done. They may have them processioned today, and again tomorrow. (270) And the doubt may be very honestly entertained whether that is such a twice processioning as will give a good title. The present case does not require an opinion to be given on this point.
RUFFIN, J., concurred.