Doe on the Demise of Dobson v. Finley, 53 N.C. 495, 8 Jones 495 (1862)

June 1862 · Supreme Court of North Carolina

53 N.C. 495, 8 Jones 495

Doe on the demise of JOHN DOBSON v. JAMES FINLEY.

Where the second call of a boundary is clearly established, the first may be ascertained by running the course reversed, and rheasuring on it the distance called for.

A commission to take a deposition that recites that it issued from the “ supreme” court of McDowell county, for a suit pehding in McDowell Superi- or Court, authenticated by the signature of the clerk, and seal of the Superior Court of McDow.ell county, is so palpable a misprison, as to authorise it to be regarded as a commission issuing from the 'superior court.

Where a white — was called.for as a corner, and a white-oak was pointed out nearly in the course, by a marked line leading to it, and by other circumstances, it was held a proper question to be left to the jury, whether the white-oak was the corner intended.

This was an action of ejectment, tried before Osborne, J.., at the Ball Term, 1860, of McDowell Superior Court.

The lessor claimed title as the heir-at-law of one Dobson, and exhibited a grant to his ancestor, bearing date 18th December, 1799. The controversy was as to the location of the grant. It called for two pines on Beard’s line on the south sidé of a hill, and running west one hundred and sixty (160) poles to a pine, Thomas Young’s old corner; thence south crossing the maple swamp branch, 100 poles to a white-; thence east 160 poles to a pine, Templeton’s corner; thence north, to the beginning.

It was in proof, that the beginning corner could not be found, and that Beard had no land at the place where it is alleged to have stood, but there existed a hill, and on the south side of it, there were several pine stumps and decayed pine timber, and running thence 160 poles, the line reached a pine, which was the corner of a tract formerly owned by Thos. Young and one Tate as tenants in common, and running thence south one hundred poles, no white-oak or other object answering as a corner was found, but varying the course a few degrees to the west, and extending the line 40 poles, a marked line was found crossing the. maple branch, some of the trees, on which being blocked, the marks corresponded in age with the grant, and a white-oak was reached marked as a corner, but which was not blocked ; it stood very near, but on the opposite side of a drain, which in winter afforded running" water, but in summer was dry. In order to show that the pine was known as Thomas Young’s corner, the plaintiff introdnced a grant, bearing date in 1798, to one Beard, for an adjoining tract of land, one of the calls of which was for a pine, Thomas Young’s corner, which it was proved was the same pine contended for by the plaintiff, as being in his survey. This deed was objected to by defendant, but admitted by the Court. Defendant excepted.

The lessor of plaintiff also offered in evidence the deposition of one Javans. The commission, under which it was taken, recited that the same was taken under an order from the “ supreme” court of McDowell county, and it lacked the ordinary attesting clause of the clerk, but it named the suit and it was signed by the clerk of the superior court of McDowell, and was under the seal of that court. The defendant’s counsel objected to the admission of this deposition, but the Court over-ruled the objection, and the defendant again excepted.

Evans testified that, for many years, he ■ had owned and lived on the adjoining tract to that in controversy; that he knew the pine corner, and for many years, it had been known as Thomas Young’s corner, and that there was an old marked line from the pine to the white-oak, and that the white-oak was the corner of the Dobson grant.

The defendant contended that as the call, in the grant, did not designate the white-oak, or any other natural object, as the corner, but called for a course south and a distance of 100 poles, the plaintiff was restricted on that line to course and distance, and called on the Court so to instruct the jury.

But his Honor charged the jury, that it was necessary that the lessor of the plaintiff should prove to their satisfaction that his grant was located as he contended ; that though the beginning corner had not been proved, yet, if they believed that it had existed at the south side of the hill, they would so find, and for this purpose they might consider the testimony which had been introduced to establish the second corner of the grant; that if they believed, from the proof, that the pine was Thomas Young’s corner as called for in the grant, and then, measuring the line as the surveyor testified, it would extend to the south side of the hill, and notwithstanding the imperfect description, that the line of the grant was the marked line proved to exist, and that the. white-oak was the corner of the grant, they might find it to be so. Defendant’s counsel again excepted.

Yerdict and judgment for plaintiff. Appeal by defendant.

Phillips, for the plaintiff.

No counsel appeared for the defendant in this Court.

Pearson, C. J.

We concur in the opinion with his Honor in the Court below, upon all the points, which are presented in the statement of the case.

1. Supposing the pine to be established as the second corner, could the first, a beginning corner, be located by reversing the course and measuring the distance called for, from the pine back, that is, on the reversed course. His Honor ruled that the beginning corner could be fixed in this way: we agree with him. If the second corner is fixed, it is clear, to mathematical certainty, that by reversing the course and measuring the distance, you reach the first corner; so there is no question about over-ruling either course or distance by measuring the line, and the object is to find the corner by observing both course and distance.

2. The deposition of Evans was properly allowed to be read; the word “ supreme” being evidently a misprison of the clerk, instead of “ superiorThis is palpable ; because there is no supreme court in McDowell county. The signature of the clerk and his seal of office, gave full proof of the authenticity of the commission.

3. We concur in the opinion, that in order to establish “the pine” as a corner by reputation. The call in Beard’s grant, issued in 1798, was competent evidence, and, indeed, was the strongest sort of evidence to show that “ the pine” was known as Thomas Young’s corner ; and we were at a loss to see on what ground the evidence could be objected to, but we are fold, on the argument, that the objection was, that it did not appear that the grantée, Beard, or the surveyor, were dead, and so that this recital in the grant, which must be considered as “ hearsay evidence,” coming either from the one or the other, was not competent. The misapprehension proceeds from not distinguishing between evidence, by reputation, and hearsay evidence, as it is called. It is settled that both binds of evidence are competent in questions of private boundary in this State; although in England it is confined to questions of public boundary, that is, the lines of parishes and counties and the like matters of public evidence. In the latter, to wit, hearsay evidence, it is necessary as a preliminary to its admissibility, to prove that the person, whose statement it is proposed to offer in evidence, is dead; not on the ground, that the fact of his being dead, gives any additional force to the . credibility of his statement, but on the ground, that if he be alive, he should be produced as a witness; whereas, it is manifest, that in respect to evidence by reputation, this preliminary question cannot arise ; therefore, proof by reputation, that is, recitals in old deeds and grants, inscriptions on monuments and the like, has always been deemed competent, without enquiring as to whether the parties to such deeds and grants, or the man who ingraved the inscription are living or dead, for the fact, itself, tends to establish the reputation, or received opinion, in regard to the particular matter) for instance, in our case, the fact that is recited in a grant to Beard, issued, in 1798, that this pine is Young’s corner, is evidence, that the pine was known and admitted to. be Young’s corner, which is what is treated of, in the books, as establishing a boundary by reputation, and differs greatly from “hearsay evidence.”

4. The call for a white-, with a blank as a corner, does not present a question of ambiguity of description, but of an imperfect description; in which case, if the description can be made perfect by an implication furnished by the context of the instrument, the omission may be supplied without further proof j as a legacy of 300 is given to a daughter, to 1)6 paid out of the proceeds of the sale of a tract of land, the couit, from the context, supplied the omission of the word “dollars,” and so made the description perfect. In our case, there is nothing in the deed to enable the Court to infer what sort of a corner was intended ; a white-oak, or white-ash, or or white-pine ; so, without further aid, the omission could not be supplied, and course and distance would govern. But we agree with his Honor, that the existence of marked line trees, crossing the maple branch, beyond the point where the distance gave out, which, when blocked, corrresponded in age with the grant and that at the point of intersection of the course of the second line, and the reversed course of the third line, a white-0<z7c was found marked as a corner for the coming and leaving line, in respect to which, no practical surveyor can be mistaken, were facts proper to be submitted to the jury, on which to warrant them in coming to the conclusion that the white-oalc, was the corner, and in that way supply the omission in the description.

Per Curiam,

Judgment affirmed.

* x*Hon. John M. Dick, one of the Judges of the Superior Courts, died since the last Term of this Court, and Hon. Thomas Ruffin, Junior, was appointed by the Governor and Council of State to fill his place, ad interim.