AVERY, J., dissents, arguendo, in which CLARK, J., concurs. This case was before us at Spring Term, 1895, and the opinion of the Court rendered at that term (Brown v. House, 116 N.C. 859), is now before us upon a petition to rehear. After a careful examination of the grounds alleged in the petition, we see no reason for reversing the judgment of the Court rendered on the former hearing. In our opinion the case was then put upon correct principle, and upon the facts in the case was correctly decided.
Being of this opinion, it does not become necessary for us at this time to review any argument in the opinion as then delivered, nor to explain or modify the same, nor to review, explain or correct any authority cited in support of our former opinion. The only thing we *Page 546 can do is to cite additional authority to sustain the judgment of the Court as heretofore rendered. The opinion of the Court delivered (871) at Spring Term, 1895, enunciates no new doctrine, as the petitioners seem to think it does. It recognizes the doctrine that course and distance contained in a deed or grant may be controlled by another call contained in the deed or grant that is more certain than course and distance. It also recognizes the fact that a call for another tract of land has been held by this Court to be sufficient to vary course and distance, when the line called for was a known and established line at the date of the deed or grant calling for the same, and that when a line so called for is established it will control, unless there are reasons to show that it was not in fact the line called for.
But admitting all this, as we did in the former opinion, there are two infirmities in defendant's contention that are fatal to him: First, the Blount grant does not call for the "Stokley Donelson line," and, secondly, the "Stokley Donelson line" was not established. The call is 360 chains south to a stake, supposed to be in Stokley Donelson's line. If the call had stopped at the word "stake," we suppose no lawyer would have contended that the line south from the painted rock did not end when the 360 chains called for gave out. Then how can this be changed by the fact that it was supposed this stake was in Stokley Donelson's line, when in fact it was not? The Stokley Donelson line is not the point called for, but a stake at the south end of a line 360 chains in length, commencing at the painted rock. The term,"supposed to be in Stokley Donelson's line," must be treated as surplusage or as a term intended in explanation of or qualifying this point. Suppose, I sell to A my gray horse, Jackson, supposed to be twelve years old, but it turns out he is fifteen years old. I was mistaken in my supposition, but A gets the horse and nothing (872) more. Or I sell to A my gray horse, Jackson, which I supposed to be at Stokley Donelson's, and it turns out that he is not at Stokley Donelson's, but at William Johnston's. I was mistaken in my supposition that the horse was at Stokley Donelson's, but A gets the horse, just the same as if I had not been mistaken as to where he was.
As we have said, this is now new doctrine. In Harry v. Graham,18 N.C. 76, where the call of the grant was to a black oak, near the line of another tract of the grantee, the black oak could not be found, and the distance called for gave out thirty poles short of the line of the grantee's other tract and it was held that the call, near to, would not carry the line thirty poles further, and that the line must terminate at the end of the distance called for. *Page 547
In Carson v. Burnett, 18 N.C. 546, it is held that course and distance called for must control, unless there is another call more definite and certain than course and distance. In Kissam v. Gaylord, 44 N.C. 116, it is held that course and distance must control, unless there is some other description or call in the conveyance that is more certain than course and distance. In that case it was claimed by defendant to be a deed for a lot 200 feet square, in the town of Plymouth, and the second call in the deed was along Jefferson Street 200 feet, thence to the northwest corner of the "Winchell lot," and the lot being granted was known as the "Winchell lot." To stop at the call of 200 would lack a few feet of going to the southwest corner and would not cover the locus in quo. And it was held that the line in the second call must stop at the end of 200 feet.
In Spruill v. Davenport, 44 N.C. 134, it is held that "course and distance govern in questions of boundary, unless controlled by some more certain description." In this case the call was "to Benjamin Spruill's line and thence along his line and Thomas Mackey's line 300 poles to Greenland Swamp." The plaintiff undertook to reach Greenland Swamp by his lane and the line of a tract (873) that had belonged to one William Mackey, not being able to find any line of Thomas Mackey, and the court below sustained the view of the plaintiff and so instructed the jury. But this Court, on appeal, reversed the court below. Pearson, J., delivering the opinion of the Court, said there was no evidence to take the case out of the general rule that course and distance control, and the court should have so instructed the jury.
In Cansler v. Fite, 50 N.C. 424, in a call in a deed, "south 300 poles to a Spanish oak, in or near Richmond's line," and the Spanish oak could not be found, and the distance called for gave out 30 poles beforeRichmond's line was reached, it was held that the call, "in or near Richmond's line," was too indefinite and uncertain to change course and distance, and that the line terminated at the end of the distance called for.
Mizell v. Simmons, 79 N.C. 182, cited in the former opinion of this Court, must be overruled or the former opinion sustained. This opinion was simply cited in the former opinion of the Court, and as that opinion has not been satisfactory to the counsel of defendant we feel called upon to make some quotations from this well-considered opinion bearing directly on the point under consideration in this case.
"A call in a grant for a line beginning at the mouth of a gut, supposed to be J.'s bounds, running along his supposed line south 300 poles, in the pocosin, to or near the head of Speller's Creek, etc., *Page 548 indicates that there was no established or known line, and, the course and distance being certain within themselves, must govern.
"In such case, the calls being from an established corner, south 300 poles to the pocosin, to or near the head of Speller's Creek, the course and distance must prevail, without being controlled by the (874) words to or near the head of Speller's Creek. In such a case it was unnecessary, as a matter of fact, to ascertain where was the head of Speller's Creek, because, as a matter of law, the terminus of the line was at the end of the course and distance called for."
These quotations are taken from the headnote in Mizell v. Simmons, and sustain the view taken in the opinion that the call of 360 chains south to a stake, supposed to be in Stokley Donelson's line, cannot be used to control course and distance which is considered certain, in the absence of something more certain and we see from the authorities cited that this supposition contended for by defendant is not more certain — is not certain at all. This might end this examination of defendant's petition to rehear. But we have said there was another infirmity in the claim of defense: That defendant had not established Stokley Donelson's line at the point where he claims they intersect. And this leads us to a short review of what was said in the former opinion as to marked lines tending to locate the Stokley Donelson grant. We are somewhat unprepared at this criticism of the opinion, when no such grounds were taken in a vigorous dissenting opinion by one member of the Court. But still, if injustice has been done the defendant, by neglect or inadvertence to the facts, such wrong should be corrected. Upon a review of the evidence we find that a Mr. Gudger and some other witnesses testified as to seeing some marks in former surveys, about 1856. But it seems that R. S. Tweed was appointed by the court to make an official survey of these lands, and upon the trial the defendants introduced him as a witness, and he testified as follows: "I began to survey at index 28 (see official plat); ran east to 29; ran south to 30; then 17 chains to 31; thence north 560 (875) chains to 32; thence east 1680 to 23; thence about 600 poles to the beginning. At the beginning I found some linn stumps on a branch. Plaintiff was present and showed me the stumps — one stump 1 1/2 feet through — and logs, in what looked like a spring. I reversed the line and ran to north 23, and found same land, marked about five or six years old; from 23 we ran west to 22, and plaintiff said that he and I. N. Ebbs had run these lines, and ran them about as I ran, and showed me marks they made, and I understood that he said they were tracing the Donelson grant; found no landmarks, except marks made by Brown and Ebbs; this line crossed Spring *Page 549 Creek." We therefore feel fully authorized to say that not a single marked tree is shown, going to establish the Donelson grant, unless it is to establish the beginning corner. The defendant claims that the Blount grant extends to an east and west line, between 22 and 23, some twenty miles long, where no tree or anything else was found, at either 22 or 23, establishing a corner, and not a marked tree was found on the line, except a few made by Ebbs five or six years ago. And this is the mathematical line that plaintiff claims should govern and control the call in the Blount grant and carry it a mile and a quarter farther after the distances gives out.
Carson v. McCrary, supra, relied on by defendants, is so different from the case before the Court that it hardly seems necessary to distinguish them. There Pearson, C. J., speaks of the mathematical line. But that opinion is put on the ground that the corners at both ends of the line were known, and there was nothing to do but to run a straight line between these known corners. In this case the plaintiff claimed under a grant for 300 acres and the defendant claimed under a junior grant for 100 acres, but calling to commence and to run with plaintiff's line. This being so, the Court properly (876) held that defendant's land ran to and with plaintiff's line. That is not our case.
The former opinion of the Court has been criticised for indulging in some speculation as to the history of what is known and called "speculation grants." And it was intimated that the Court was not disposed to give these speculators the same measure of justice that it gives others. We do not think the Court is justly liable to this criticism. We have no idea that there is a single member of this Court who would not give such speculators every foot of land they thought them justly entitled to, and not one of them who would give them a foot more. All we know about the titles in this case is from deeds and grants offered in evidence. The plaintiff offered a grant, dated in 1890, which is admitted covers the land he claims. The defendant then offered a grant to Blount in 1795, a grant to Stokley Donelson in 1790, and a deed from Sawyer to William Johnston, and we suppose the defendants claim under Johnston or his heirs.
What we said amounts to no more than had been said by this Court before. In Cherry v. Slade, 7 N.C. 82, Taylor, C. J., delivering the opinion of the Court, said: "In many cases surveys were in no otherwise made than upon paper." This was said in reference to early grants. And in the case ofLiterary Board v. Clark, 31 N.C. 58, Ruffin, C. J., delivering the opinion of the Court, in speaking of the omission in a plat to note a water course called for in the grant, said: "The omission renders it highly probable that the plat was made *Page 550 without actual survey, and thus deprives it of whatever credit it might otherwise be entitled to." This was the view presented in the opinion heretofore rendered, that in all probability the Blount grant and Donelson grant were both located without an actual survey, (877) and were therefore not entitled to the credit they might otherwise be entitled to. What is a boundary is a question of law for the court, and where this boundary, is, is a question of fact for the jury. Jones v. Bunker, 83 N.C. 326; Burnett v. Thompson, 35 N.C. 379;Marshall v. Fisher, 46 N.C. 111; Clark v. Wagoner, 70 N.C. 706. We are of the opinion, from the evidence in this case, that the court, as a matter of law, should have instructed the jury that the stake — the imaginary point — at which the 360 chains gave out, on the line south from the beginning corner on the birch on the south side of the river, opposite the painted rock, was the southwest corner of the Blount grant, and that the line ran east from that point. This was substantially the plaintiff's prayer for instruction, which was refused. This was error.
Petition Dismissed.