Opinion
(December Term, 1859.)
1. Where a deed called for a stone, and in the designated course pointers corresponding in age with the deed were found around a spot (no stone being there), and a marked line of trees was also found, corresponding in age with the deed, and corresponding with the next course, called for, and leading from the spot, so designated by the pointers, it was Held that the deed should be construed as if it read, "a stone marked as a corner by pointers," and such point was to be gone to, irrespective of distance.
2. Where the first line, running from an admitted beginning corner, is established, and there is a line of marked trees corresponding in age with the deed, and with the course called for, running to the third corner, which is established, the second corner may be fixed by reversing the second line, and the point of intersection of the latter line with the former will be adopted irrespective of course and distance.
EJECTMENT, tried before Bailey, J., at the last Spring Term of ROWAN.
Fleming for plaintiff.
Jones for defendant.
The lessor of the plaintiff and defendant both claimed title under George M. Hartman; the former by a deed to James Bean, dated 5 February, 1850, and by a deed from Bean to him, dated in 1852; the latter by a deed dated in 1845. The land in controversy is contained in the parallelogram, B, C, I, J; the plaintiff claiming that within the diagram B, J, H, F, E, D, B, and the defendant that within the figure A, C, I, L. It was admitted that, according to course and distance, the disputed part is not covered by the calls of the defendant's deed, but the defendant insisted that he had a right to run beyond the distance (200) called for, viz., to C and I, which he claimed as corners actually made when the land was conveyed to him by George M. Hartman. The description in the defendant's deed is as follows: "Beginning at a post-oak, one of the old corners (A), thence south with Smith's line 145 poles to a stone and a ___, a new corner (claimed to be at C), thence east 110 poles to a stone (claimed to be at I), thence north with the old line 145 poles to a white-oak (L), thence to the beginning."
George M. Hartman, intending to divide the land equally between his two sons, John and Alexander, procured a surveyor, one Crosby, to run off the two tracts, and went with him on the premises for that purpose. Several of the lines of the old tract were run, and the line was then run from I to C, and marked plainly by the grantor, George. No witness testified as to the starting of the surveying party from the point I, but it was proved that there were immediately after the survey, and are at this time, several loose stones at that point, one about the (201) size of a man's head, and pointers around it, and the line corresponding in age with the deed aforesaid marked up to these stones. A witness testified that he fell in with the party as they were running the marked line I, C., when about a third of it was run; that he kept with them to the end of it; that G. M. Hartman proceeded to mark the line as far as it extended, and at the end of it marked a black-oak as a corner; that after it was finished, the surveyor made a calculation and informed the parties that this line, I, C, would not divide the land equally, but would give John more than Alexander; to which the father replied that the land was poor, and that they, the grantees, were brothers, and if they said so, he would make the deed according to the survey as
, SEE 52 N.C. 156.]
just made, to which they (John and Alexander) both assented, and the deed to John was made that evening after the parties returned to the house of the grantor. The deed to Alexander was not made to him at all, but at his request, and for his benefit, was subsequently made to Bean, the bargainor of the plaintiff's lessor. After the conveyance to John, and before that to Bean, it was proved that George M. Hartman recognized the line marked C, I, as the true boundary, and offered the land for sale according to it. It was also proved that James Bean, while he owned the land now claimed by the plaintiff's lessor, fenced nearly up to that line, and the defendant did the same, leaving a narrow lane between them. It is admitted that no stone can be found at C, but that there is a black-oak there, marked as if for a corner to defendant's tract, with pointers around, and that these marks agree in date with defendant's deed.
The plaintiff's counsel contended that there was nothing in the deed to the defendant that authorized him to claim to the line C, I, to the disregard of course and distance, and called on the court so to instruct the jury.
The court declined giving the instruction prayed for, but charged the jury that if there was a corner actually made at I for the purpose of having the deed made according to it, and another actually made at C for the same purpose, and the evidence satisfied them of (202) these facts, they ought to find their verdict for the defendant, and in arriving at these facts the existence of pointers around these points, and a marked line, corresponding in age with the deed to defendant, from the one to the other, were circumstances to be considered by them.
The jury found for the defendant. Judgment. Appeal by plaintiff.
Every deed must speak for itself, and a defective description cannot be aided by parol evidence, although in fitting the thing to the description, for the purpose of identifying the subject, such evidence is not only admissible, but necessary.
In respect to "marked trees," a departure from this rule, to a limited extent, has been admitted, and is acted upon in numberless cases, so as to allow a defective description to be aided and added to, by an implication, based on the known practice of surveyors in making corners. For instance, a call "south 145 poles to a black-oak, thence east 110 poles," etc., is vague and uncertain in respect to the black-oak. We know from the deed that it is a corner, for at it the course changes; but what black-oak is it? Unless it stand at the end of the distance, no description is given, and so far as the deed speaks, it may be this, that, or another black-oak. But surveyors always mark "corner trees" in a particular manner — three chops on the "coming" and three on the "leaving" line, and if a black-oak is found marked as a corner, corresponding with the two lines, and corresponding with the date of the deed, that fact has the effect of aiding the description, and adding to it, by implication, so as to make it read "a black-oak marked as a corner," which makes the description perfect, and establishes the black-oak for a corner, controlling both course and distance. Surveyors also mark line (203) trees in a particular manner — two chops on a side-line tree and two chops coming and leaving on a "fore and aft tree"; and although we do not decide that a line so marked, corresponding with the date of the deed, except in ancient deeds and patents, is of itself sufficient to control course and distance, unless it is called for in the deed, yet it is clear that such a line, if found, may aid in fixing a corner which has been removed or destroyed, for the marks so made on growing trees, according to the custom of surveyors, cannot afterwards be put there or counterfeited, and are treated as facts, in some degree incorporated into the deed, so as to make a part of the description, by implication, and are thus distinguished from mere parol evidence, resting on "the slippery memory of man." So that where the first line, running from an admitted beginning corner, is established, and there is such a line of marked trees corresponding in age and with the course called for, running to the third corner, which is also established, the second corner may be fixed by reversing the second line, to wit, the line so marked, and the point of intersection with the first line is considered to be the corner, although the distance in the first line may be thereby elongated or shortened. This is assumed to be settled law in Harry v. Graham, 18 N.C. 80. It was decided in that case that a posterior line could not be reversed, in order, by its intersection with a prior line, to show the corner, unless such posterior line was certain, because to do so would be to extend the distance of the prior by the course of the posterior line. The chance of mistake resting on the one or the other being equal, it was deemed proper to follow the order in which the survey was made. But the Court say: "So if, even upon such calls as this deed contains, a line of marked trees was found, by tracing the line back from the postoak, corresponding with the survey of the 300-acre patent, that might carry the other line to the point of intersection, because it would prove an actual survey, and be the evidence of permanent natural objects to show where the black-oak once actually stood, which, wherever (204) it stood, would be the terminus and control the distance mentioned in the deed."
The same consideration, based on the practice of surveyors and the nature of marks made on growing trees, by which the fact of a tree being found marked as a corner is allowed to aid the description in a deed by adding to it the words "marked as a corner," applies to a case where trees are found marked "as pointers"; for it is the practice of surveyors, and a part of their art, to mark a point as a corner in a particular manner, to wit, by blazing three trees, so as to point to the center spot as the corner, which, from their office, are called "pointers," and the blazes so made on growing trees are just as permanent, count age as well, and are as hard afterwards to be put there or counterfeited, as the chops on a corner tree, and are consequently equally entitled to be treated as facts, incorporated into the deed, so as to make a part of the description, and aid by adding to it the words, "marked as a corner by pointers." For instance, a call "south 145 poles to a stone, thence east 110 poles," etc., is vague and uncertain in respect to the stone; but if the trees are found marked as "pointers," corresponding with the date of the deed, and especially if there be also an established line coming to the point indicated, and a line of marked trees corresponding in age, and with the course leaving the point, these facts have the effect of aiding the description, and adding to it by implication, so as to make it read a stone "marked as a corner by pointers," which makes the description perfect.
It was objected on the argument that, according to this mode of reasoning, a stake, as well as a loose stone, might, by the aid of pointers and marked line trees, be fixed as a corner so as to control course and distance, which, as was contended, would be in conflict with Reid v. Schenck, 14 N.C. 65, where a stake is held to be an "imaginary point."
It is true, in that case it is held that where course and distance are given, calling for "a stake," it is ordinarily intended by the parties, and should be understood merely to designate an "imaginary point"; but it is there conceded that stakes may be real boundaries, and (205) we see no reason why its character, as well as that of a loose stone, may not be fixed as a real boundary by a description calling for it as a corner designated by means of pointers, although this part of the description rests on implication; for in Reid v. Schenck the land in dispute was a lot in a town, where there were no trees marked, either as corners, pointers, or line trees, and the question rested on monuments of boundary of a different kind, in respect to which there was nothing to aid, by implication, the description in the deed. If a rock or a stone pillar be called for as a corner, and there are no pointers or marked line trees to aid the description by implication, that case decides there must be some other description given in the deed so as to identify the particular rock or stone pillar, as a rock "by the side of a branch," or with the letter "C," for instance, marked on the face of it, or a stone pillar with a certain inscription, like those erected to mark the boundary between the United States and Mexico, and the difference between monuments of boundary of that kind and those marked on growing trees is relied on to distinguish that case from "the series of cases" cited by the learned judge who presided in the court below.
In our case we have an admitted corner to begin at, an established line to fix the corner trees, marked as "pointers," and the line trees running off to fix the second course, which line of marked trees go to another point, where there are also trees marked as pointers in an established line of the original tract, and we concur with his Honor that, according to the adjudications of our courts, these facts are competent and sufficient to fix the corners so as to control the distance mentioned in the deed.
We have not relied on the fact that the call is for a "stone and a .... (a blank), a new corner." This fact certainly does not weaken our conclusion, and, we think, tends to support it, taken in connection with the additional fact that a black-oak stands at the point marked as a corner, corresponding in age with the coming and leaving lines; (206) for the description shows that there was something else at the point, and it is probable the draftsman, being uncertain as to the kind of tree on which the corner-marks were made, left it blank for fear of a mistake; but at all events the description shows that a new corner was then and there made, and agrees that far with the fact that a black-oak was then and there found, marked as a corner. So that there is, at least, no inconsistency between the description in the deed and the facts dehors.
PER CURIAM. No error.
Cited: West v. Shaw, 67 N.C. 494; Norwood v. Crawford, 114 N.C. 518, 521; Duncan v. Hall, 117 N.C. 444, 446; Brown v. House, 118 N.C. 881; Higdon v. Rice, 119 N.C. 625; Tucker v. Satterthwaite, 123 N.C. 531; Gunter v. Mfg. Co., 166 N.C. 166.