Den ex dem. Brooks v. Ross, 19 N.C. 484, 2 Dev. & Bat. 484 (1837)

Dec. 1837 · Supreme Court of North Carolina

19 N.C. 484, 2 Dev. & Bat. 484

DEN ex dem. GEORGE BROOKS v. JOHN ROSS.

An exception, which was intended to bring under review the construction of a deed, cannot be considered, where the terms of the deed are not given in the ease stated, nor the deed itself certified as a part of it. And the judgment will be affirmed, although it may not be perceived that it was right, if it do not appear to be wrong.

Ejectment, tried at Stokes, on the last Circuit, before his Honor Judge Saunders.

The case made out by his Honor for the Supreme Court, upon a verdict for the defendant, and an •appeal by the plaintiff, stated, that the question was one of boundary, both parties claiming under one Richard Bowman. That the lessor of the plaintiff offered in evidence, a deed from Bowman to one John Perry, under whom he claimed, dated July 1800, the calls of which were, “ beginning at a black oak, thence 143£ poles, to a grub,” &c. That the dispute was, as to the second line: that the black oak, the beginning corner, was admitted ; and that thence, the course and distance would run so as to cover the land in dispute.

The case further states, that “ no evidence being offered to fix any of the corners except the beginning, the lessor of the plaintiff contended he had the right to run according to the calls of his deed.” That the defendant offered a deed from Richard Bowman to himself, dated March, 1818, the boundaries of which he contended to be according to certain corners and lines, which he introduced testimony to establish, and which, he contended, covered the land in dispute. This deed was not made a part of the case, nor were the boundaries of the land, conveyed in it set out in the case.

His Honor charged the jury, that the lessor of the plaintiff would be entitled to hold the lands according to the calls in the deed from Bowman to Perry, unless the defendant had shown a different boundary, and an adverse possession for more than seven years. That whether the land had been run and marked as testified to by the defendant’s witness, and whether these were the calls in the defendant’s deed, and whether he had held possession adversely for seven years according to these boundaries, were questions for them. Verdict and appeal as stated above.

James T. Morehead, for the plaintiff.

W. A. Graham and Boyden, for the defendant..

Ruffin, Chief Justice.

The Court is unable to perceive any error in the record, or, indeed, to discover satisfactorily the question it was intended to present.

The case sets out by saying that the question in the cause was one of boundary. It then states the description of the land contained in the deed to the lessor of the plaintiff; and an instruction to the jury that it covered the land in dispute; and that the plaintiff was entitled to a verdict, unless the defendant showed a different boundary with possession according to it. This can be understood only to mean, that the defendant’s deed by its descriptive words, must also cover the land claimed and possessed by him. There seems to have been no other point on which the case could have been determined adversely to the plaintiff; and hence we infer that the appeal was intended to bring under review the construction placed on the deed to the defendant. But it is impossible upon this exception to raise that question ; for it is not only silent respecting the construction put on it in the Superior Court, but it omits to set out any part of the contents of that deed, except the names of the parties, and the date. The Court cannot declare the meaning of an instrument, of the terms of which we are entirely uninformed. If there was error committed on that point,, the plaintiff must submit to it, as he does not furnish us with uthe means of correcting it. It is true, that it cannot be seen on this record that the construction and judgment were right. But that is not sufficient: it must appear that they were wrong. Without that document or its contents being in the exception, it cannot be told whether there was error or not; and on that ground the judgment must be affirmed.

Per Cueiam. Judgment affirmed*