Opinion
May Term, 1819.
From Bertie.
In determining the priority of grants, issued on the same day, the number marked on each will be regarded and looked to, when there is no other circumstance. The number is no part of the grant; and therefore where two grants issued on the same day, and the one of the lowest number called for the lands covered by the other, this last shall be deemed the prior grant.
Boundary is a question of fact, or at least of law and fact combined, and to be decided by the Jury and not by the Court.
It is the province of the particular description to abridge and limit, but not to enlarge the general description.
Where the thing referred to has no particular name, and there are super-added to the general description, specifications or localities, all these specifications or localities must concur to point out the object, otherwise it does not appear to be the thing intended.
If one grant to S. S. one thousand acres of land and no more, according to certain lines which include two thousand acres, the two thousand acres pass, because the buts and bounds are more certain than the quantity. Quantity is in no way material, except where the boundaries are doubtful, and there it is a mere circumstance.
Colour of title, and possession under it — possession of lands for seven years under colour of title bars the right of entry, although the possessor knew at the time he obtained his colour of title and took possession, that the lands belonged to another person. Any other construction of the act of limitations would render titles insecure, and frustrate the intention of the act.
The lessors of the Plaintiff were the heirs at law of John Swain, to whom the lands in question had been granted on 18 May, 1789. The warrant of survey was issued in 1778, and the survey was made in 1784, the Defendant Leggat being one of the chain carriers. The Defendant claimed title to the lands (540)
, SEE 7 N.C. 333.] under a grant issued to him on the same day on which the grant to Swain issued, and his grant was of a lower number than Swain's. In the following Diagram, the letters A, B, C, D, E, represent the lines of Swain's grant, A. being the beginning corner. The figures 1, 2, 3, 4, represent the lines of Leggat's grant, figure 1, being the beginning corner.
The grant to Swain calls for "three hundred acres of land lying in Bertie county, on the low grounds of Roanoke river, beginning at a Holly on the river, Dugan's corner, running thence with his line north 80 poles to his other corner, thence north 25 degrees east 260 poles to a cypress, thence north 80 degrees east 100 poles to a Gum, thence south 20 degrees west 450 poles to the river at a Sycamore, thence up the river to the first station." The Sycamore called for in the last line is at figure 1, and the line being run from the corner at D. to figure 1, will leave out of the grant a small slip of land in the bend of the river.
The grant to Leggat calls for "one hundred acres of land lying in Bertie county, in the low grounds of (541) Roanoke river, between John Swain's and Roanoke river; beginning at a Sycamore tree, John Swain's corner on the river, thence north 25 degrees west 254 poles to a Gum, thence north 33 degrees east 64 poles to a Gum, thence south 25 degrees east 254 poles to a Chestnut Oak on the river, thence up the river to the first station." The Chestnut Oak is at figure 4.
The Defendant had been in possession of the part of the land covered by both grants for eighteen years.
The Defendant contended that the lines of Swain's grant ought to be run agreeably to the directions of the act of 1777, so as to give him a water front of but one-fourth of the extent back: that if so run, the lines of the two grants would not interfere. He further contended, that as his grant issued on the same day with Swain's and was first numbered, it was the elder grant and first to be located. And lastly, that his grant was a colour of title, and that he having had seven years adverse possession of the land, the right of entry in the lessors of the Plaintiff was barred.
The Court instructed the Jury that, as the Defendant had failed to prove any lines actually run at the time of the original survey, different from those called for in the grant to Swain, those claiming under that grant were entitled to run according to the courses and distances called for in it, and that would leave the land in dispute within the bounds of Swain's grant. That the number of the grant, marked on it by the Secretary of State, was not a part of the grant; that in the nature of things an elder grant could not call for a younger, and here the grant to Leggat recognised Swain's grant.
The Court further instructed the Jury, that if they believed that Leggat, at the time he obtained his grant, knew that it covered lands already covered by the grant to Swain, his grant was not such colour of title as, with seven years possession under it, would toll the right of entry of the lessors of the Plaintiff: that no paper writing which was founded in fraud, could operate as colour of title in favor of him who was party to the fraud. That if a man obtain (542) a grant for a piece of land which he knew had been granted to another, it was a fraud both upon the State and the individual whose land was so regranted. And the court left it to the Jury to say, whether the circumstance that Leggat was a chain carrier when Swain's land was surveyed, satisfied them that he knew when he obtained his grant, that it covered lands surveyed for Swain: that he got a grant for land lying between Swain's and Roanoke river, and if he was a chain carrier for Swain, must he not have known that there were only a very few acres lying there? And must he not also have known that running from the sycamore the course he called for, would take him directly into Swain's lands?
The Jury found the Defendant guilty; upon which a rule for a new trial was obtained, and it being discharged the Defendant appealed to this Court.
The first question presented for the consideration of the Court, is the priority of the respective grants of the parties. Leggat's has the lowest number, but it calls for Swain's lands: the number must therefore yield to this call, and Swain's must be considered as first made. The number was then no part of the grant; it was only a mark put upon it by the Secretary for convenience, not when he countersigned, but when he revised it.
The next question, to-wit, the boundaries of Leggat's grant, is rather one of fact than of law, and dependent on a variety of circumstances, proper only for the consideration of a Jury. We will, however, examine those facts as sent here, more for the purpose of shewing that it is a question of fact, than of elucidating the points arising on the record for our decision.
Swain's patent, under which the lessors of the Plaintiff claim, when laid down according to its calls, leaves but a narrow strip of land, not more perhaps than ten steps (543) wide, between it and the river, and perhaps not more than fifty long: and the lands granted to Leggat are described in his grant as lying between Swain's and the river, "beginning at a sycamore, John Swain's corner on the river, thence north 25 degrees west 254 poles to a gum, thence north 33 degrees east 64 poles to a gum, thence south 25 degrees east 254 poles to a chestnut oak on the river, thence up the river to the first station;" which when laid down according to its calls, runs across Swain's lands diagonally, and terminates many poles beyond Swain's back line, including lands lying between Swain's lands and the river, not more than one-third or one-fourth of an acre. It is contended, on the part of the Plaintiff, that as Leggats' lands are described as lying between Swain's and the river, every other description of its locality must be controlled by and give way to that, to-wit, distance, courses, marked lines, corners, and quantity; and in support of this, it is said, that it is the province of the particular description to abridge and limit, but not to enlarge the general description; and Lord Bacon's 13th maxim, 2 Coke Rep, 33 Doddington's case, Cro. Jac. 22, and 8 East. 91, are relied on to support it. From these authorities, which are nothing but rules or maxims founded in common sense, it appears, that where the thing referred to, has no particular name, and there are superadded to the general description, specifications or localities, all these specifications or localities must concur to point out the object, otherwise it does not appear to be the thing intended. As if I grant all my lands in Dale, which I purchased of I. S. and which are in the tenure of I. N.; all these specifications must concur, otherwise there is nothing described. But if I grant White Acre, which I purchased of I. S. and which descended to me from my father, White Acre will pass, although I purchased it of I. N. and not from I. S.; and although it descended to me from my mother and not from my father: it is sufficiently identified by its name, and the other descriptions are (544) not sufficient to render it uncertain. They are therefore rejected or disregarded.
This may be further illustrated thus; I grant to J. S. one thousand acres of land and no more, bounded as follows, c. and two thousand acres are included in the lines. The two thousand acres pass, as the buts and bounds are more certain than quantity, which depends on admeasurement and calculation; and the quantity is in no way material, except in lands where the boundaries are doubtful, and there it may be thrown into the one scale or the other as a circumstance.
On the other hand, it was contended that whatever may be the effect of Leggat's grant to pass the title of the lands, it actually runs across Swain's patent in the manner before described. To prove this, reliance is placed on the course and distance, the immense disparity between the quantity called for and that lying between Swain's and the river; that by stopping at Swain's front on the river line, and running Leggat's next course and distance, his lands are thrown one-half or more into the river, and the residue on the opposite side. Now a greater part of the above are questions of fact, and which the Court cannot decide on. It was the province of the Jury to do so; and if some be rules of law and some of fact, the decision belongs to the Jury under the superintendence of the Court as regards the law, and the competency and relevancy of the evidence. In fact, boundary is a question of fact, at least of law and fact combined, and for the decision of the Jury and not of the Court.
But if the Jury were of opinion that Leggat's grant covered the lands in dispute, the next question is, does the possession of eighteen years under it, give a right, Leggat knowing at the time he entered that Swain's patent covered the land? I assume it as a fact, that Leggat had notice of the bounds of Swain's patent, because from his being a chain carrier, although it be a slight circumstance, the Jury might infer that he had such notice, and the (545) Court very properly left that circumstance to them.
Leggat is very clearly within the words of the statute of limitations, even with the addition that there must be colour of title, if the Jury believed his grant covers the land. He has had a possession for more than seven years, under a grant purporting to convey the lands to him, and which would have been operative but that the grantor had before parted with his interest. Whether he knew or not of any other title, the Legislature which passed the act of 1715, did not seem to consider material. The words are general, not in favour of those possessors who did not know of any other title. I would say that the law, as so construed, is politic and wise. On the one hand, it may be said, that no mala fide possessor should acquire a right, no matter how long his possession may have continued. Yet as parol evidence must be gone into for the purpose of proving the mala fides, and it being a thing dependent on a knowledge in the possessor, a thing which may be drawn upon him by perjury without a possibility of contradiction, the object of passing the act would be frustrated, it would tend to render title insecure. To discourage new settlements and improvements, particularly of a lasting kind, in which all countries are much interested, and more especially a new one, as ours was then and even now, would in a great degree repeal the act; and if it did not, it would damp the spirit of enterprise and improvement, which it was the intention of the Legislature to cherish and protect. But for us, as mere expounders of the law, it is sufficient to say, that there is no such exception in the words of the act; nor is there in the act anything which authorises us to say that the Legislature meant otherwise than as they have plainly expressed themselves on the subject now under consideration. Believing, therefore that the Jury were misdirected on this point, the rule for a new trial must be made absolute.
Cited: Tate v. Greenlee, post, 557; Proctor v. Pool, 15 N.C. 374; Belk v. Love, 18 N.C. 73; McConnell v. McConnell, 64 N.C. 344; Thornburg v. Masten, 88 N.C. 296; Cox v. Cox, 91 N.C. 263; Harrell v. Butler, 92 N.C. 23; Scull v. Pruden, Ib., 174; Ellington v. Ellington 103 N.C. 58; Brown v. House, 118 N.C. 884; Higton v. Rice, 119 N.C. 640; Smathers v. Gilmer, 126 N.C. 760. (546)