Doe on demise of Haughton & Slade v. Rascoe, 10 N.C. 21, 3 Hawks 21 (1824)

June 1824 · Supreme Court of North Carolina

10 N.C. 21, 3 Hawks 21

Doe on demise of Haughton & Slade, v. Rascoe & Gray.

Slade, ~} !:Be ~.

Where a grant was made in 1818, and registered, but the certificate did not shew at -jufiat time it was registered, the Court will permit the grant to be read, notwithstanding a period intervened between 1818 and 1821, when no law was in force, allowing further time for the registration of grants, unless it be shown that some right vestcd between the time within whióh the grant should have been registered, and the time when the act of 1821, allowing further time, went into Operation.

A line c.al~s for "171 poles ~o Roanolce river," the call to the liver terminates when the line reaches the lnarqin or bank of the river, without regard to dis'ance, aiid the intersection of the line with th~ river is the poilit from which the next line commences.

Lines and courses are described, "North 12 East 530 poles, then along the thoroughfare, &c." Held that the line North 12 East, shall run to the thoroughfare, withput regard to course and distance.

£jectrnemt tried before Badger, Judge.-On the trial, the Plaintiff produced a grant to his lessors, dated November, 1818. By the certificate of the register of the county in which the lands aie, endorsed on the grant, it appeared that the grant bad been registered, but it did. iiot appear from the certificate at what time it was registered, nor was any 1woof, other than the certificate, offered as to that fact. Defendant objected to the grant as evidence, without further proof as to the time of registration, and it was received by the Court subject to the exception; this grant covered the disputed premises, of which Defendant had possession.

The Defendant then produced a giant to Jonathan Ja-cocks, ut much older date than Plaintiff's grant; this grant called, (among other courses,) "Boutib 14, East i~I poles to Roanoke ri~oer, then North, £5 East 98 poles, then North 22 East 118 poles, then .Mwtli 12 East 530 ~nles, then along the thoroughfare to th~ first station." llieu along to this grant-, and re-írse» as in the 'j^vant, ex-,'hich, with the l£sfc course, íortli 12 East oft) poles to the thoroughfare to the The rourac.^ ferre(-|-o by] eept las| is sL'ii'vi as the thbrou^ first station.”

In running the line described, “South 14 East 1"1 poles to lloanokc river.” the liver was reached at the distance of 150 poles, and Defendant contended that the line should be extended into the river to the channel, so as to complete the distance.

The Court held, and so instructed the Jury, that the call to lloanokc river, terminated when the line readied the margin or bank of the river, and that the party could not extend it beyond, but that the distance was to bo disregarded, and the intersection with the river was to be considered the termination of the line from which the next line was to commence; and, further, that the line, “North 12 East 530 poles,” should run to the thoroughfare, and that, for that purpose, the course and distance should be disregarded, if necessary to reach that place, i If the lines of the grant be run according to the instructions of the Court, stopping the, one line at the margin of the river, and carrying the other a straight course to the thoroughfare, the land in dispute is not covered by the Defendant’s grant.

The Jury returned a verdict for the Plain tiffs; Defendants moved to set it aside and enter a nonsuit on the matter reserved as to the admissibility of Plaintiffs’ grant, in evidence; this was refused, and a new trial was then moved lor; this also being refused and judgment rendered, Defendants appealed.

Gaston, for the Defendants,

took two grounds:

1st, That Defendants’ grant was improperly received in evidence; he said that the register, being a mere ministerial officer, his act as such, imported no efficacy ecu no not t!iis issued, and beyond what positive law asr-i 2 Hen. and Clan. 132. 1 Crane'., l. that although the time for regisft^vb extended by various acts, yet that all been open for registering grants since referred to a short period between the expiration of the act of 1813 and the commencement of that of 1821, and of course, (the time not appearing,) the Court could not see that this grant was registered as the law required.

2d, That the Court misdirected the Jury, and therefore, Defendants were entitled to a new trial. The error of the Judge wars in deciding the question of boundary, and not leaving it to the Jury, and particularly in not permitting the Jury to extend the line into the river, if by so doing all the other calls of the grant would bo reconciled.

Hogg

answered, that the register was asworn'officer, and his registration must therefore be presumed to be regular; the act should render the grant void only against subsequent purchasers. — (10 Johns. 457.. Ibid. 466.) The construction of the grant was with the Court, and it was rightly construed. — (8 Johns. 508,) and Doe on demise of Slade dj* Ilanghlon, v. Green <5* Ryan, (2 Hawks, 218.) As to the property of a river adjacent to lands owned by individuals, he referred to 3 Caines, 313. Tlarg. Law Tracts, 8, 9. Lord Hale’s dc porlibus maris.

IIat,t,, Judge,

delivered the opinion of the Court:— I think the Court was right in receiving in evidence the grant made to the lessors of the Plaintiffs, it is true, the grant ought to have been registered in two years, as the law required. But by the act of 1821, c. 10, further time of twm years was given for the registration of all deeds, grants, &c. made before that time. Had any right vested, between the time within which the grant gis te red, and the time when the ought t° íla* act. of } operate, (as in the case of Scales y. FcwelíUúccWtfKmlhí^ term,) those rights would not have Won mvestecl by that act. But the Defendants have shewn no rights so circumstanced. If they had a right under the grant to Jonathan Jacocks, the Plaintiffs’ grant, whether registered.or not, would not stand in their way, but as it appears that that grant does not cover the land, and no other right is set up, the Plaintiffs’ grant being comprehended in the act of 1821, entitles them to recover.

We see no objection to the charge of the Court, as to the boundaries of the land, and are of opinion that judgment should be rendered for the Plaintiffs.