DOUGLAS, J., dissenting. Some time prior to 1885 a survey and plat were made dividing a parcel of land into lots and streets which were afterwards embraced, or were then within, the town of Monroe. The plat was known as the "B. F. Houston plat," and B. F. Houston was the husband of the defendant. He and his wife retained lot No. 4. They conveyed, by deed, to the plaintiff lot No. 3, which lies just immediately north of lot No. 4, describing the lot by metes and bounds, as well as by courses and distances, the courses and distances being exactly as they appeared in the plat, and referring to it as "known as lot No. 3 of the plat of B. F. Houston." The plaintiff brought this action to recover a strip of a few inches lying along the entire southern line of lot No. 3, as described in the plat, which strip she alleges the defendant is unlawfully in the *Page 389 possession of. The defendant knowing that she had joined her husband (567) in the conveyance to the plaintiff of lot No. 3, and that she had conveyed it by metes and bounds, and also by courses and distances mentioned on the plat, deemed it prudent in her evasive answer to set up the matter which is the real defense relied on by her against the plaintiff's action. That defense is that at the time of the execution of the deed the line between lots Nos. 3 and 4 was fixed and determined by parol agreement by the parties to the deed, that that line was a different one from the line in the survey and plat and in the deed, and that the agreed line gave to the defendant the title and possession to the strip in dispute. The answer sets up the defense in the following language: "That she admits that the plaintiff at one time owned a lot lying immediately north of the lot now occupied by and in possession of the defendant, with a dividing line distinctly known and marked by a fence between plaintiff's lot and that of the defendant, which said line was fixed and determined by the parties to the deed executed to plaintiff, at the time of its execution." That we have properly interpreted the answer is seen from a perusal of the testimony of the defendant offered on the trial and refused by his Honor. She proposed to testify as follows: "That she had been in the open, notorious and adverse possession of the strip of land in dispute ever since 1849, under a partition proceeding dividing the land inherited from her grandfather, duly and regularly instituted, concluded and recorded. The lot or tract of land assigned and allotted to her in said proceeding consisting of 30 1/4 acres, embracing and covering the entire lot of the plaintiff; that said strip of land in dispute has been cultivated as a part of her garden ever since the execution of the deed from her to the plaintiff, and for many years prior thereto; that at the time of the execution of the deed to the plaintiff, under which she claims the land in dispute, it was agreed between the parties to said deed (568) that the first line called for in said deed extended only to the corner of defendant's garden on Church Street, and that the second line, running in a westerly direction, ran with the garden fence then standing and running between the lots of the plaintiff and defendant, and that said fence still stands in the same place; that by mistake the first call in plaintiff's deed calls for 170 feet on Church Street, instead of stopping at the corner of the garden; that said corner of the garden was marked by a stone permanently located; that the mistake in the deed making the first call was made by following the courses and distances in an old plat of town lots, made by B. F. Houston, but that it was agreed and understood between the parties of said deed, at the time of its execution, that the line of plaintiff's lot on Church Street extended only from the intersection of Houston and Church streets to the corner of defendant's garden on Church Street, and the corner of plaintiff's lot on Church Street *Page 390 was, at the same time, definitely located at the corner of defendant's garden, and the line west from the corner of garden was definitely located and fixed to be and run with the garden fence then dividing the lots of plaintiff and defendant; that the lot sold plaintiff, at the time of the execution of the said deed, was entirely surrounded by a fence, and its boundaries were well known, and it was well understood and agreed that only the lot included by said fence was sold to plaintiff; that the corner of defendant's garden on Church Street is an old and well-located corner, having been marked by a stone placed there more than twenty-five years ago; that the fence dividing the lots of plaintiff and defendant has been standing where it now stands, and where it was at the execution of the plaintiff's deed, for more than twenty-five years; that the defendant is not in possession of any of the lot north of the dividing fence between the lots of plaintiff and defendant."
(569) His Honor refused to receive the evidence, and an exception to the ruling brings up the only substantial matter on the appeal for consideration. The question for decision is not whether the first call in the deed "beginning at a stone, corner of Houston and Church streets and running thence S. 170 feet to a stone at the corner of the garden," should end at the stone or continue to the full distance of 170 feet. If that was the point in the case we would be called on to decide whether a stone recognized and agreed upon at the time of the execution of the deed as a corner, in a city or town lot, would control course and distance as would a tree, rock, creek or other natural object in a rural section. That might depend upon the size and texture of the stone, its depth in the earth, and the manner in which it had been planted; in other words, upon whether, upon consideration of the evidence, it was sufficient as to those matters for the court to say as a matter of law that the stone was or was not a properly constituted and permanent landmark, a monument of description. But the case before us is one in which the grantor undertakes to change, by parol agreement and evidence, a line about which there is no uncertainty either in the deed or in the survey and plat. It will be seen from a reading of the rejected testimony of the defendant that she did not offer to show that the stone at the corner of her garden was pointed out or referred to and agreed upon by her and the plaintiff as the corner on Church Street between lots 3 and 4; that there was no description of the stone as to its size, or its manner of erection; that, in fact, one of her witnesses, who was introduced to testify as to the corner, would have said, if his testimony had been received, that there was no stone at the time of the trial at the corner of the garden, it having been removed or covered by dirt so that it could not be seen.
But, besides, the fact that the description in the deed concludes with the further description, "and known as lot No. 3 of the plat of *Page 391 B. F. Houston," has the effect in law of fixing the line between (570) the lots just as it was defined and located in the survey and plat. In the survey and plat only course and distance from an agreed beginning was used as a description, no mention of a stone at the corner of a garden on lot No. 4 having been made. The case is like that of Davidson v.Arledge, 88 N.C. 326. There the former owners of two lots in Charlotte had verbally agreed upon a change in the dividing line, and had for years each used his separate lot under the terms of the agreement. Afterwards, the plaintiff's grantor having become the owner of both lots, conveyed to the plaintiffs one of them, with a description taken from the plan of the town by number, and also "as designated in the plan thereof," and it was held that the same boundaries that were mentioned in the original laying off and platting of the town were to locate and define the lot. The distance, then, in our case must control, and the word "stone," used in the deed, be regarded as imaginary only. The construction of the deed, then, being a question of law, his Honor was right in declaring to the jury whatwere the boundaries called for in the deed and instructing the jury that, if they believed the evidence, to answer the first and second issues "Yes," and the third issue, "That part on the southern boundary of lot No. 3, having a width of 1 6-10 feet on Church Street and 2 7-10 feet on Alley E, as shown by official plat."
The counsel of the defendant agreed in this Court that the defendant was not estopped to deny the plaintiff's title, for the reason, as he contended, that the deed to the plaintiff was made by B. F. Houston and wife (the defendant), and there was a presumption that the defendant joined in the deed only to release her dower and homestead, no title to the lot having been shown to be in her. The deed itself, it would seem, would be a sufficient answer to that argument, for she joins with her husband in the words of conveyancing; she acknowledges the joint receipt of the purchase money, and she joins her husband (571) in the covenant of warranty. If the doctrine of presumptions is to be invoked it would seem that the title was a joint one. It is not necessary to discuss the effect of the admission in evidence of the award, as from the view we have taken of the case it could not have been injurious to the defendant, even if the evidence was incompetent.
No error.