Pender v. Coor, 1 N.C. 315, 1 Tay. 315 (1802)

July 1802 · North Carolina Superior Court

1 N.C. 315, 1 Tay. 315

Pender versus Coor.

The words of a grant, in describing the courses, are proper in certain cases to be decided upon by the jury ; like all other questions of evidence.

EJECTMENT. The land claimed by the plaintiff, was granted in the year 1745, and became the property, of Walden, in 1764, who, after owning it for thirty years, conveyed to the plaintiff. The courses and distances, expressed in the patent were as follow; beginning on the river, running then West 179 poles, then North 179 to a pine on the road, then East 179 poles to an oak, then Southwardly the various courses of the river to the beginning. The pine at the end of the second line was proved, and in running the third line two sore and ast trees were found, whose marks denoted age : at the end of the distance and about fix poles Northwardly of the latter line was also found a black oak tree, marked as a corner, though in appearance, the marks were not so old either as those on the pine, or on the line trees. This oak, however, was called by Walden his corner tree, and before the sale to Pender, he said he could not sell further than the oak. If the third line stops at the termination of the distance, a line drawn thence South reaches the river at the distance, of about 25 poles and leaves out the land claimed by the plaintiff. Whereas, if the third line is continued for 115 poles beyond the distance called for, it reaches the river and includes the land for which the suit is brought.

It was argued for the plaintiff, that the river in the course of the third line must be the boundary : had it been expressly called for, as the termination of the line, it could not be more completely designated than it is, by the fourth and last line being directed along it’s various courses to the beginning. The distance therefore must be disregarded, according to the cases of Sandifer versus Forbes and Hartfield versus Westbrook. Haywood Rep.

For the defendant, it was insisted, that the cases cited could not govern this, which had features peculiar to itself, and in no wise resembling those relied upon. Here the word Southwardly in the grant, imports a direction to the river from the point where the distance of the third line gives out, and may well be taken as descriptive of the very short line which reaches the river : this seems evident, when it is considered that 179 poles form the length of each of the principal lines, and that the corner tree at the end of the disputed line, or one very near it, is well established.

Haywood and Stanly for the Plaintiff.

Harris for the Defendant.

By

the Court.

To decide this question upon the words of the patent alone, the inclination of my mind would be in favour of the plaintiff’s construction. But, upon examining the situation of the land as described in the plot, and upon hearing the evidence with respect to the marked corner, a very strong presumption arises that the word “Southwardly” was inserted in the patent, for a purpose more significant than that, of describing the various courses of the river to the beginning. The case, therefore, resolves itself into a question of evidence, whether the lines and corners are established with such certainty as to create a belief, that the third line was intended to stop at the end of the distance, and thence to pursue a Southwardly course in order to arrive at the river. For if that was the land originally patented, there should be a verdict for the defendant.

Verdict for the Defendant.