Opinion
December Term, 1822.
1. The utmost extent of the decisions in cases of boundary has been to permit marked lines or corners to be proven or shown when such marked lines and corners were not called for in the deed.
2. This rule violates principle, but it is now too late to vary it; but this Court will not go further into error and permit parol evidence to contradict or vary the description where there is no mark or vestige left; and, therefore, where a deed calls for a course from a point on a river different from the course of the river, and not calling for it, parol evidence shall not be received to vary the description and show that the line actually run at the time of the grant was the river.
EJECTMENT. The points in controversy arose on the title and boundaries of the defendants, who claimed the lands under a grant from the State to Jonathan Jacocks, dated in 1786. The grant was regularly authenticated by the seal of the State, with the signature of the Governor, and countersigned by the Secretary, J. Glasgow. The only evidence that the grant had ever been recorded was an indorsement on it in the following words: "No. 91, Jonathan Jacocks, 300 acres, Bertie County. Recorded in the Secretary's office. A. Phillips, P. Sec. Registered B. N. P., 14 B. Amos Turner, P. R., Bertie Co." On the part of the plaintiffs it was objected in the court below that the grant should not be read, on the ground that there was not sufficient evidence that it had been recorded. The court overruled the objection and the grant was read.
The description given of the lands in the grant was as follows: "A tract of land containing 300 acres lying and being in our county of Bertie, in an island in Roanoke River known by the name of Huff's Island; beginning at a small cypress at the thoroughfare, then (219) running S. 55 E. 40 poles up Middle River to a persimmon tree, then S. 14 E. 52 poles to a large cypress, then S. 28 W. 98 poles to a cypress, then S. 26 W. 114 poles to a cypress, then S. 14 E. 171 poles to Roanoke River, then N. 25 E. 98 poles, then N. 22 E. 118 poles, then N. 12 E. 530 poles, then along the thoroughfare to the beginning, as by the plat hereunto annexed will appear." The thoroughfare is a natural boundary, being a water communication connecting East River and Middle River, two branches of the Roanoke. It appeared from the plat annexed to the grant that the last line but one was a straight line running N. 12 E. 530 poles to the thoroughfare, while the river did not run that course, but various courses, and it was contended that the line should run N. 12 E., from the termination of the preceding line, agreeably to the terms of the grant and plat. The defendants then offered in evidence the declarations, of one of the chain-carriers named in the original survey who was dead, as to the courses actually run at the time, from which it appeared that the courses of Roanoke, and Middle rivers were run, and not the course called for by the grant. The introduction of this testimony was opposed on the ground that parol evidence was inadmissible to contradict, vary, or explain the grant and description in the original plat, but was received by the court, and a verdict was found for the defendants. A rule was obtained to show cause why a new trial should not be granted, and on argument was discharged, and a judgment was rendered pursuant to the verdict, whereupon plaintiff appealed.
Hogg for appellant.
Seawell for appellee. (220)
This evidence, if admitted, must be upon some new principle, (224) for there is nothing dehors the deed to create an ambiguity. It does not resemble that class of cases where there is a line or a corner or a marked terminus called for which does not correspond with the course and distance mentioned in the deed. Upon such being shown by parol evidence, or upon an inspection or an examination of the lands themselves, an ambiguity is created which may be explained by parol. This is not to vary or contradict the deed, but to explain the ambiguity arising from the double description. Upon this principle Person v. Roundtree, 2 N.C. 378, and 1 N.C. 69, and Eaton v. Person may be explained, and numerous others of the same class. In Person v. Roundtree, the oak called for at the termination of the first line was actually south of the point of departure, which was designated by being marked as a corner, and there being a line of marked trees leading directly to it and corresponding in distance. The line running from it to the next corner was also marked and the corner ascertained. The next course and distance carried you to the creek, which was called for in the original grant. This ambiguity permitted the introduction of parol evidence to explain it. And, there being no line running north (the course called for in the patent) from the beginning, nor any marked trees, nor any oak or other marked tree at the termination, nor any line of marked trees from the termination of the first line, or any other line on the north corresponding with those called for in the deed, parol evidence was admitted, and the stronger description prevailed, that is, the course yielded to other marks of locality. But it must be confessed, however much to be lamented, that our courts have permitted parol evidence to contradict a deed. But the furthest they have gone is to permit marked lines and corners to be proven or shown when such marked lines and corners were not called for in the deed. Thus, where course and distance only are given in a deed, without reference to marked lines or corners, parol evidence has been admitted to vary that (225) course and distance by showing marked lines and corners, which is in fact contradicting a deed by parol without there being an ambiguity; for in this case the deed refers to no such marks or boundaries as it does in those cases where not only course and distance are given, but marked lines and corners are called for. And it is now too late to vary the rule. But I am not disposed to go further into error by analogous reasoning, and to permit parol evidence to contradict or vary the description where there is no mark or vestige left. In the former cases there are some checks to frauds and perjuries, to wit, the marked lines and corners. In the latter there are none. For the former the courts of justice had something like an excuse arising from our processioning laws, which require the processioners to observe natural boundaries in the first place, marked lines and corners in the second (meaning, no doubt, when called for in the deed), and course and distance in the absence of the other two, and from our laws directing surveyors to mark the lines and corners in surveying vacant and unappropriated lands. But I can see no plausible grounds for the admission of the evidence in the present case. It would place the boundaries of our lands at the mercy of perjured, ignorant, or forgetful men. And I do not think a stronger illustration can be given of the propriety of rejecting the evidence than the facts apparent upon this record. When running on the gut or thoroughfare, that thoroughfare is made the boundary. In this the surveyor was obeying the injunctions of the act. A boundary was at hand, and he availed himself of it in his description. When running next to the river, the lines are described by courses and distances, and they are numerous and tedious. For, had he designed to have made the river the boundary, the same causes which induced him to call for the gut would have induced him to call for the river. I therefore think (226) the evidence should not have been received.
There is another objection made in this case, that the grant to the defendants for the land in dispute was not registered in the Secretary's office under Laws 1777, ch. 1, sec. 11. It is directed to be registered there, but it is made the duty of the Secretary to have it done, and the grantee ought not to be injured by his neglect. By the same section it is made the duty of the grantee to have it registered in the county where the land lies, and in case of neglect it is declared void. But this penalty is not referable to the first part of the section, which directs registration in the Secretary's office. That would be inflicting the punishment upon the innocent which is due to the guilty. Wherefore I am of opinion that this objection cannot be sustained. But there should be a new trial upon the point first noticed.
HALL, J., and TAYLOR, C. J., concurred.
PER CURIAM. New trial.
Cited: Reed v. Shenck, 14 N.C. 69; Van Pelt v. Pugh, 18 N.C. 212.