Cansler v. Hoke, 14 N.C. 268, 3 Dev. 268 (1831)

Dec. 1831 · Supreme Court of North Carolina

14 N.C. 268, 3 Dev. 268

Philip Cansler v. John Hoke et al.

The return of a processioner must set out the courses and distances ill words at full length. And where the courses were expressed by abbreviations, and the distances in figures, the return was set aside,. Hekdekson, C. *f* disseniiente.

The plaintiff sued out in the County Court, an order for the processioning of five acres of land lying in Lincoln, adjoining the lands of the defendants, to which the processioner returned that he had run several lines, and had been forbidden by the defendants from' proceeding further with the survey. Upon this return, the County Court under the act of 1799 (Bev. c. 541) appointed five freeholders to complete the processioning, who made their return setting forth the courses in abbreviations, thus— n. for north &c. — and the distances in figures instead of words. The defendants objected to the return, but it was confirmed by the County Court, from which the defendants appealed.

His Honor, Judge Dawiei, on the last circuit, aifirm-ed the judgment, and the defendants again appealed.

Gaston, for the defendants.

The Attorney General and Hogg, .for the plaintiff.

Hax.1., Judge.

When I observed, that the first act on processioning which is to be found in the Revisad, (c. 14,) declared, that any person wiiose lands were twice processioned according to that act, shall be deemed and adjudged the sole owner of such land, and that it was supposed that clause gave a title to lands which might be twice processioned under the act of 1792, (Rev. c. 365,) 1 could not but consider it as a proceeding fraught with danger to the rights of land proprietors, and felt myself altogether justified in throwing every legal impediment in the way of a title, thus to be consummated. I was prepared to say, that the processioner’s return in this case was not made out according to the 6th section of the act of 1792, (Rev. c. 365,) which declares, that “ the proccssioner shall make out a certificate in words at full length, for each tract by him processioned an objection, which I should be at a loss how to get clear of in cases of minor importance. The act is imperative t, and tlie proccssioner’s certificate is not made out in words at full length. Arid for that reason the report must be set, aside, with leave to the plaintiff to proceed further in the cause, as the law directs.

It is to be observed, that the act of 1823, (c. 14,) directs that lands shall be processioned, and the marks renewed once in every three years. And that he, whose lands are twice processioned, shall be adjudged the sole owner of such lands. The act of 1792 leaves every person at liberty to have their lands processioned or not. Jf they elect to have them processioned, no particular time is stated in which it is to he done. They may have them processioned to-day, and again to-morrow. And the doubt may be very honestly entertained, whether that is such a twice processioning, as will give a good title. The present case does not require an opinion to be given on this point.

Ruepin, Judge, concurred.

Henderson, Chief-Justice,

dissentiente.- — I cannot but believe, that the words at full length, to be found in our processioning acts, are fully satisfied by abbreviations, not only of common, but I believe I might say of universal use ; as N. for North, E. for East, W. for West, jjo. for poles, chs. for chains, when it is shown by the context, that these abbreviations are used as descriptive of the courses and distances. There can be in such case no possibility of a mistake. In our acts, describing the mode in- which surveyors shall make out and return plats of vacant lands, made upon entries,the words are “ words at lengthAnd surely there can be no substantial difference between words at length and words at full length.. Yet this interpretation would render nearly all of our surveys void. And thereby also, our grants would be-annulled. The legislature meant, that as the thing was to be done in words, and frequently for the use of plain and unlearned men, the proceedings should be so described, that all could understand them. I must therefore declare my dissent from the opinion of the court, for I think that the proceedings should not be quashed.

Per Curiam. — Judgment reversed.