Summary
In Cooper v. White, 46 N.C. 389, it is said "that it is now well settled that a mistake in the course, or distance, contained in the calls of a deed shall not be permitted to disappoint the intention of the parties if that intention appears, and the means of correcting the mistake is furnished by a more certain description in the deed."
Summary of this case from Wiseman v. GreenOpinion
(June Term, 1854.)
A mistake in the course or distance, contained in the calls of a deed, will not be permitted to disappoint the intent of parties, if that intent appear, and the means of correcting the mistake are furnished, either by a more certain description in the deed, or by a plat annexed to such deed, and referred to in the same.
Where one of the calls in a grant was "South, eighty degrees East," but in the plat and certificate of survey annexed, the same call was "South, eight degrees East," and it appeared, that, to run according to the grant alone, the lines would cross each other several times, dividing the land into three distinct parcels, and would only contain about half of the number of acres called for, and by so running: HELD, the lines would terminate far from the beginning; but, by running according to the plat and survey, a consistent diagram would be made, embracing the proper quantity: HELD, that the latter description must be adopted.
Action of Ejectment, tried before his Honor, Judge BAILEY, at the Spring Term, 1854, of Tyrrell Superior Court. The following case agreed was submitted to his Honor:
Heath, for the plaintiff.
No counsel appeared for the defendant.
One Hillory Bacon obtained a grant from the State, the boundaries of which commenced at a well known point, and after running various courses and distances, contained a call "South, eighty degrees East," and thence various courses and distances, to the first station, after which is added " as per the next plat appears." On reference to the plat annexed to the grant, it is found that the call therein, for this part of the description, is "South, eight degrees East, c." and it was admitted that if the latter course was adopted as the boundary of the grant, it covered the land in controversy; but, if the call in the grant, of "South, eighty degrees East," was adopted, it was not contained within the boundaries. The original survey filed in the office of the Secretary of State, upon which the grant was issued, corresponds with that annexed to the grant, viz: it calls at this point, for a course running South, eight degrees East.
The diagram formed by running the lines according to the calls of the "plat annexed" is thus:
, SEE 46 N.C. 390.]
If the courses and distances called for by the grant itself uncontrolled by the plat, be adopted, the lines will cross each other several times, and will terminate far from the beginning, and will contain less than half the number of acres called for in the grant; and the following is the figure formed by thus running:
, SEE 46 N.C. 391.]
The title of the grantee, Bacon, was duly established by mesne conveyances down to the lessor of the plaintiff, David Cooper, and it was admitted that the defendant was in possession when this suit was brought.
The case being thus agreed, it was submitted to his Honor, whether, according to law, the plaintiff was entitled to receive. And, upon consideration of the matter submitted, his Honor being of opinion with the defendant, gave judgment against the plaintiff, from which there was an appeal to this Court.
It is now well settled, that a mistake in the course or distance contained in the calls of a deed, shall not be permitted to disappoint the intent of the parties, if that intent appear, and if the means of correcting the mistake are furnished, either by a more certain description in the same deed, or by reference to another deed, containing a more certain description. CAMPBELL v. McARTHUR, 2 Hawks. 33; RITTER v. BARRETT, 4 Dev. and Bat. 133. It is equally well established, that a similar mistake in a grant may be corrected by reference to a plat annexed, or by such plat and the certificate of the original survey, where a more correct and certain description is therein contained. BLAKE v. DOHERTY, 5. Wheat. Rep, 359; HURLY v. MORGAN, 1 Dev. and Bat. 425. It is true, that when a natural object, as for instance, a large lake, is called for in the grant, and the lake is not laid down in the annexed plat, the latter cannot control the calls of the grant, because the grant, by calling for the natural object, furnishes the more certain description. LITERARY FUND v. CLARK, 9 Ired. 58. This, however, is but an exception, which, in the very reason upon which it is founded, the more clearly proves the general rule.
That the grant, in the case before us, contains a mistake in the call for the course, "South, eighty degrees East," is manifest from an inspection of the plat, made according to the survey on that call. The line thus run makes the other lines cross each other, and throws those which are subsequent to it so much out of their proper position, that the land actually enclose, is in three distinct parcels, amounting in the whole to not more than half of what is expressed to have been granted. In addition to this, the twelfth line of the grant crosses the first, and those subsequent to the twelfth go off in a direction from the beginning, and never reach it. It must be admitted, then, that there is a mistake in the call alluded to, which ought to be corrected by the annexed plat, or by that, together with the certificate of the original survey, if the description therein given be more consistent, and thereby leads to a more certain ascertainment of the intention of the parties. Such, it will be readily perceived, is the case. The call in the plat, as well as in the certificate of the original survey, is "South, eight degrees East," and by adopting that, instead of the course, "South, eighty degrees East," and running according to it, all the other courses and distances will be consistent with it, and one entire tract of land will be found to be enclosed by them. The mistake was, no doubt, made inadvertently by the Secretary of State, in adding the letter "y" to the word "eight" in the call in question. Under these circumstances, we have no hesitation in saying, that his Honor erred in holding that the mistake in the grant was not corrected by the plat and certificate of the original survey; and proceeding upon the agreement of the parties, we direct the judgment in favor of the defendant to be set aside, and a judgment to be entered for the plaintiff.
PER CURIAM. Judgment reversed, and judgment for plaintiff.