Den on Demise of Houser v. Belton, 32 N.C. 358, 10 Ired. 358 (1849)

Dec. 1849 · Supreme Court of North Carolina

32 N.C. 358, 10 Ired. 358

DEN ON DEMISE OF T. C. HOUSER & AL. vs. EWELL BELTON.

Where a deed described a corner as being on the casi side of a creek, it is admissible for the party, by competent testimony, to shew that the comer was in fact on the west eide'of the creek.

The case of Person v. Roundtree3 1 Hay. 378, cited and approved.

Appeal from the Superior Court oí Law of Surry County, at the Fall Term 1849, his Honor Judge Caldwell presiding.

This was ejectment. The lessor claimed under a deed from one Gittens, dated in 1822, under which possession had been held for more than twenty-one years. The deed described the land as lying on both sides of Loven’s creek — beginning at a white oak on the East side of Loven’s creek, thence South 55 chains to a post oak— thence East 100 chains to a white oak, thence North 55 chains to a white oak, thence to the beginning, containing 559 acres.

The plaintiff .insisted, that the beginning corner was at a white oak stump on the West side of the creek, and that it was described as being on the East side by mistake.

If the corner was at the stump, the plaintiff was entitled to recover; otherwise his title did not cover the land sued for.

The second, third, and fourth corners were established. The point of intersection, by running from the fourth corner West, and from the second corner North, (reversing the course of the first line,) was at the white oak stump, and the distance of these two lines gave out within a few feet of the stump. A witness testified, that, many years ago, his father, who is now dead, pointed out to him a white oak tree, which was marked for a corner, and told him it was the corner of the lessor’s land. The witness stated, that several years ago the tree was cut down by one Wright., when clearing land. The corner contended for by the lessor was the stump of that tree. The witness further stated, that Wright had also cut down a line tree between the white oak stump and the creek, and that both the white oak corner and the line tree were on the west side of the creek.

The defendant insisted, that the calls of the deed could not be controlled by such testimony, and the beginning corner must be on the east side of the creek.

The Court charged, that, if the evidence satisfied the jury that the white oak,of which the stump was the remains, was marked as the corner of the lessor’s land, it would control the word “east,” and fix the lessor’s corner on the west side of the creek, and the plaintiff was entitled to recover.

There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Iredell, for the plaintiff.'

No counsel for the defendant.

Pearson, J.

The opinion of his Honor is fully sustained by many decisions. The question is simply, whether a party is at liberty to show, by the kind of proof offered in this case, that there was a mistake in using the word “east,'’instead of the word “west.” It is not a question between a marked tree and a natural boundary, but between a marked tree and a mere word.

When a creek is called for as a boundary, it will control course and distance and even marked lines and corners, because it is permanent and fixed, and a thing, about which there ean be no mistake. It is a natural 'boundary. Marked lines and corners control course and ’distance, because a mistake is less apt to' be committed in reference to the former than the latter, indeed, the latter is considered as the most uncertain kind of description ; for. it is very oasy to make a mistake in setting down the course and distance, when transcribing from the field book, or copying from the grant or some prior deed, or a mistake may occur in making the survey, by losing a stick, as to distance, or making a wrong entry ■as to course. For these reasons, when there is a discre* ,pancy between course and distance and the other descriptions, the former is made to give way.

All the reasons for making course give way to a natural boundary, or to the lines of another tract, or to marked lines and corners, apply with full force to the present question. The deed describes the beginning corner as being on the east side of the creek ; the proof shows the corner tree to be on the west side. The marked tree must control, because there is less liability to mistake about it, than in the use of one word for another, and the discrepancy shows there must be a mistake in the one or .the other.

in the leading case, Person v. Roundtree, 1 Hay. 378, the course of the first line was “North” from a creek, so as to put the whole tract on the North side. The marked line ran “South” from the creek, so as to put the whole tract on the South side. It was held, that the course of the first line had been written North instead of South by mistake, and the marked lines controlled. There is the same reason for holding in this case, that “East” had been written instead of “West,” and the marked course must control.

Per Curiam.

Judgment affirmed.