The Court did right in telling the Jury, that as the Patent described the land to lie on the North side of the River, and after calling for a pine on the branch, gives the line along said branch, the distance was to be disregarded and the line stopped at the mouth of the branch. Let the rule for a new trial be discharged.
Den on demise of Carroway v. Witherington, 4 N.C. 275, 1 Taylor 275 (1818)
Jan. 1818
·
Supreme Court of North Carolina
4 N.C. 275, 1 Taylor 275
DEN on demise of CARROWAY and WIFE against DANIEL WITHERINGTON.
This cause was tried befqre Ruffin, J. at Sampson Superior Court, October 1817, and a verdict found, under r ' 1 the charge of the Court, for the Defendant, The tiffs moved for a new .trial upon the ground of misdirection by the Judge, which was refused ; and the Plaintiffs prayed for and obtained an appeal to the Supreme Court. The land in dispute is represented in the annexed r r _ gram by the fig. 1. 6. and the letter G.; and is in the fendant’s possession. The lessors of the Plaintiff claim title under a patent to G. Korneva, in which the land is , ... . described, as “ a tract containing 290 acres, lying on the north side qf the north-east branch of Cape-Rear beginning at a Maple below Munse’s ford, thence No. 60° E. 94 poles to a Red-oak ; thence So. 36°, E, 200 poles ; thence No. 63°, E. 60 poles ; thence No. 70°, E. 52 poles ' 1 1 to a Pine on the Marsh Branch ; thence along said branch 320 poles j thence to the beginning.” The beginning Maple is identified and stands on the North side of the River at A. in the plat; and the several lines and corners to the Pine, inclusive, are also identified and correspond ’ ’ .r with the courses, distances and corners called for in Grant, and are delineated in the plat, by the lines A. B.; B. C»; C. D.; $nd D. 1⅛. The confluence of the River and Marsh Branch is at F. and the distance, along the branch, between E. and F< is only 214 poles. From F. to G., crossing the River, is 106 poles; making with E. F. down the Marsh branch, 320 poles in the whole from É. to G. which is called for in the patent as the length of line from the pine. The line F. G. is not in the same course with the general direction of the Marsh Branch, Which has a winding, irregular course. There are no marks between E. and F, or between F. and G. and no proof was offered of an actual lurvey of either of those lines.
The land h» ^lsPu5,e'T38 described m patent as lo-the n^e. Cape-Fear ⅛. a"(*lile line whence question fo£s«apn!e on the marsh branch, thence along poles, thence-branch meets the river the distance held that the boundary & the mouth ofitthecorr-i^bepaten^ a?d that the to be disrev Sarde4-.
*277It was contended for the Plaintiff, that the line from the Pine at E. should be extended to G. so as to give the full distance of 320 poles, and to make G. A, the last line of the tract, and therewith include the Defendant’s p^Sfession at H. The presiding Judge instructed the Jury, that inasmuch as the Patent described the land to be “ on the North side oí the River,” and after calling for the pine on the Marsh branch, gives a line running thence, “ along said branch,” (without any course) “ 320 poles,” and no proof was given of an actual survey of those lines, the Branch was the boundary, and the mouth of it, the corner of the land covered by the patent; and that no regard Was to be paid to the distance in this case, consequently that the lessors of the Plaintiff had no title to the lands in dispute, and the Defendant was, in law, entitled to their verdict.
Regular conveyances from the patentee, Kornega, to the lessor of the Plaintiff, were produced; and the Defendant’s grant issued after Kornega's. The question for the decision of the Supreme Court is, whether upon the foregoing statement and the construction of Kornega’s patent, the direction given by the Court to the Jury was right or not ? If right, then the rule for a new trial to be discharged ; if wrong, the rule is to be made absolute.