Archibald v. Davis, 50 N.C. 322, 5 Jones 322 (1858)

June 1858 · Supreme Court of North Carolina

50 N.C. 322, 5 Jones 322

WILLIAM ARCHIBALD AND RHODA HIS WIFE v. WM. H. DAVIS,

A description of land calling for a point or stake as a beginning, and course and distance for all the rest of the description of the boundaries, is so vague, that no land can be located under it.

(Massey v. Belisle, 2 Ire. Rep. 177; Mann v. Taylor, 4 Jones’ Rep. 272, cited and approved.)

AotioN of TROVER, tried before Caldwell, L, at the last Spring Term of Beaufort Superior Court.

The action was brought for the conversion of a quantity of pine timber taken from off of a tract of land, the title of which is the main subject of this suit; the plaintiff offered in evidence the copy of a grant which issued to one Knight in VllQ, but failed to show that it covered the loeus in quo; next, a petition by the heirs of one Latham, the ancestor of the plaintiffs, (of whom the female plaintiff was one,) to divide the real estate from him descended, the appointment of certain commissioners who made a report which was confirmed and recorded, of which the following is the part material to this controversy:

“ LOT NO. 3.”

Lot No. 3, drawn by, and allotted to, William Archibald and Blioda his wife.

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u also, 144 acres land on the south side of deep run creek, adjoining the lands of Henry Hobbs, and known as the Man-duel lands described in the plot as number 10, valued at $108.” The plat to whieh the above refers accompanied and constituted a part of it; the following diagram represents what was insisted on as describing the land in question, and which was, with the above report, insisted on as color of title.

One Garrett testified that he was a chain carrier when the lands of James Latham were divided; that the lot assigned to the plaintiff was called the Manduel tract; that his widow lived on it at the time; that certain men now dead, showed the beginning corner some hundred and fifty yards north of the house — the residence of the said Manduel, near a grave yard at the head of the plat, and they ran then westwardly within a short distance of the grave yard, and north of it to a pond, and then ran up it to the end of it, and then ran to the south-east and south to Tarkill creek, and then back to the beginning.” It appeared that one of the lines as run, is over 190 poles, the call of which is for 60 poles, and it was insisted by the defendant that to stop at the end of the distance, the logs hauled off would not have been on the land claimed by the plaintiffs, and the Court in respect to that, charged that in the absence of more certain boundaries, course and distance must govern. It was admitted that the land claimed by the plaintiff laid on Laurel swamp, but it was denied that the lines embraced the locus in quo. It was proved that the plaintiffs had had possession of a field within the boundaries as contended for by them for more than seven years before the bringing of this suit. It was in proof that on one occasion after one Flynn bad made a survey running the lines as the plaintiff's claim them to be, the defendant met with the feme plaintiff and offered to buy the logs which he had hauled off, which she refused to sell. It was contended by the plaintiffs ¡that this was an admission of the plaintiffs’ title to the property in question. The Court charged the jury that the plat of the commissioners called for no boundaries save course and distance, 'that if they believed the defendant had offered to buy the land from the plaintiffs after the Flynn survey was made, that was some evidence of title; but if the proposal was made under a misapprehension, that such an offer should pass for nothing.

The defendant exceptéd. Yerdict for the plaintiff. Judgment. Appeal by the defendants.

Shaw and Donnell, for the plaintiff.

Rodman, for the defendant.

Pearson, J.

Assuming that the proceedings for partition, and the plat which formed a part thereof were color of title, so as to extend the possession of plaintiffs beyond their actual occupation to the boundaries of the plat, and entitle them to recover for a trespass committed any where within the same, provided the plat coul.d be located so as to identify any particular tract, we think his honor erred in not holding- that the description furnished by the plat was too vague to be susceptible of being located, “because in law it covered no land;” Mann v. Taylor, 4 Jones’ Rep. 272, Massey v. Belisle, 2 Ired. Rep. 177. The description furnished by the plat is this, “ Beginning at a point in Laurel Swamp; thence along the margin of the swamp to a point; thence North 85 deg. W. 90 poles; thence 40 deg. "W. 86 poles; thence N. 40 dog. East 60 poles to a point in a pond ; thence along the pond to a point', thence S. 77 deg. 88 poles to the beginning, containing 144 acres on the south-side, of Broad creek, Lot 10.” It is manifest this description is too vague to admit of a location. There is no telling from it at what particular place ©n the swamp the beginning point is to be fixed, nor what distance along the swamp the line.is to be run in order to reach the second point, for both corners are “ immaginary points,” and no mode of finding the location is furnished by the plat.

An attempt was made to help out the location by the testimony of one Garrett, who was a chain-carrier when the land was divided. lie testifies that “certain men now dead, showed the beginning corner somp hundred and fifty yards north of the house, near a grave yard at (the head of the plat, the lines were reversed by crossing over to the pond, running westwardly within a short distance of the grave yard, and north of it to a pond, then up the pond to the end of it, then to the south east, &c. Supposing this description of the beginning corner with the alteration “ at the head of the swamp” instead of “head of the plat,” (as we presume the witness intended) to have been set out in the plat, it may have been sufficient; but parol evidence is inadmissable to aid, or add to the description of land in a deed, or other instrument. When the writing gives a description e. g. a marked tree, or stone, or the mouth of a branch, or any mode by which a point can be fixed, then parol evidence must necessarily be resorted to in order to “fit the dscription to the thing”; but where there is no description, or one that is too vague, if parol evidence were received, the boundaries of land would depend upon the “slippery memory of man.”

The wisdom of the rule which excludes such testimony is fully exemplified in this instance. The witness is unable to be definite in any particular; — “some hundred and fifty yards north of the house near a grave yard at the head of a swamp.” His memory enabled him to point out a spot which eertain men, now dead, showed as the beginning corner. There is no tree, stone or any thing else to aid his memory as to the precise spot. Again, he says “they run up the pond to the end of it.” Here, he contradicts the plat; for it represents the line as striking the pond some distance from the end of it.

It is not necessary to notice the other points presented by the case.

Pee OukiaM. Judgment reversed and a venire de novo.