Patton v. Alexander, 52 N.C. 603, 7 Jones 603 (1860)

Aug. 1860 · Supreme Court of North Carolina

52 N.C. 603, 7 Jones 603

Doe on the demise of NANCY PATTON, et al. v. J. H. ALEXANDER.

In ascertaining the boundaries of a tract of land, one kind of natural objects called for, is not, as a matter of law, entitled to more respect or of more importance than another.

The intentions of a grantor in describing a corner or line, cannot be set up by parol in contravention of the plain terms of a deed.

Action of ejectment, tried before Bailey, J., at the Pall Term, 1859, of Buncombe Superior Court.

The plaintiff’s lessors derived title by a grant to Robert Patton, for the land described in the diagram, ADCB, and by showing that they are the heirs at law of the said Robert Patton.

The defendant was in possession of a part of the land embraced in the area IDCK,and claimed title to the same, by virtue of a deed from Robert Patton to Aaron Patton, dated in 1814, which describes the land as follows : “ beginning on the south east corner of a fifty acre tract that adjoins the laud I now live on, including the head of Aaron Patton’s smith-shop branch for complement, beginning on a hickory, the corner before mentioned, on the south side of a ridge, including Aaron Patton’s line, and runs with the same east 64 poles, crossing two small drains, to a red oak on the south west side of a ridge: thence north 127 poles to a stake; thence west 64 poles to a stake opposite to his, (Robert Patton’s,) own corner; thence, passing the same, to the beginning.” The defendant insisted that the beginning of his deed was at 1, and among other circumstances, showed that between I and D there were two small drains, but that by beginning at I), as the plaintiff contended, no such drains could be found. There was, however, a branch or two on the line D E, and there was some uncertainty as to the description of the drains relied on by the defendant.

The counsel for the defendant asked the Court to charge the jury that, prima facie, they must adopt a line crossing two drains, as the first line called for in the defendant’s deed. The Court declined to give this instruction, and the defendant ' excepted.

2ndly. The defendant asked his Honor to instruct the jury that the proper enquiry for them was, not where the south east corner of the 50 acre tract was ascertained to be by actual measurement, but where Robert Patton supposed it to be, and if they should be satisfied that he thought it was at I, there they would begin in ascertaining the defendant’s land. The Court declined giving this instruction, and the defendant again excepted.

Verdict for plaintiff. Appeal by the defendant.

N. IF. 'Woodjm and J. W. Woo&fin, for the plaintiff.

Barber, for the defendant.

Manly, J.

Ve are not sure we understand the purport of the instruction first requested of his Honor below, but if, as we suppose, it means that two small drains a running so as to cross them with the first line of the land conveyed to Aaron Patton, would be, prima facie, the true location of the land, and as a prima facie case must be rebutted. ¥e think the giving of it was properly declined.

Supposing a drain to be a natural object, (which by the bye we do not concede,) i't is no more certain than other natural and permanent objects, and is not entitled toa weight and influence primary in order, or superior in effect. It should stand upon the same footing with other natural objects called for, and should be considered in connection with them in deciding upon the true termi/ni of the land in question.

It will be seen, by reference to the statement of the case, that the conveyance to Aaron Patton, under which the defendant claims calls for a beginning at the south east corner of a grant for fifty acres, to Bobert Patton, and the second instruction asked for below was, in substance, no matter where the south east corner of the fifty acre grant in truth is, if at the time Bobert Patton made his conveyance to Aaron, he supposed it to be at the letter I, (see diagram) that should be regarded as the beginning, and the land laid down accordingly.

Such instruction would imply that the termini of the land, as indicated by the words of the conveyance, might be com-trolled or varied by the intentions of the bargainor, and as such intentions, must, of course, be derived from evidence dehors the deed, the implication is, that a deed may be varied by parol, and the tenure of land depend upon unassisted memory.

The case seems to be a plain one, the beginning and second corner of the fifty acre grant to Bobert Patton, under which plaintiff’s claims are established, and its entire location is mathematically certain. The deed from Bobert to Aaron Patton, under whom the defendant claims, being at the south east corner of the fifty acre patent, according to the calls of the deed, and in the absence of any proof that it was actually located otherwise, there it must begin in fact, and be run according to its calls.

The statement of the case concedes that a beginning at the south east corner of the fifty acre patent, according to any running, would not enable the defendant to cover the locus in quo with his deed, and he would, therefore, be a trespasser.

The Judge’s charge is in conformity with these general principles, and the judgment is therefore affirmed.

Per Curiam,

Judgment affirmed.