[EDITORS' NOTE: THE ILLUSTRATION IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 52 N.C. 463.]
The plaintiff's lessors derived title by a grant to Robert Patton (604) for the land described in the diagram, A D C B, and by showing that they are the heirs at law of the said Robert Patton. *Page 464
The defendant was in possession of a part of the land embraced in the area I D C K, 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 southeast corner of a 50-acre tract that adjoins the land I now live on, including the head of Aaron Patton's smithshop 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 southwest 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 I, and among other circumstances show that between I and D there were two small drains, but that by beginning at D, 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.
2. The defendant asked his Honor to instruct the jury that the proper inquiry for them was, not where the southeast 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 defendant. We 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. We think the giving of it was properly declined.
Supposing a drain to be a natural object (which bye the bye we do not concede), it is no more certain than other natural and permanent objects, and is not entitled to a weight and influence primary in order or superior *Page 465 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 termini 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 southeast corner of a grant for 50 acres to Robert Patton, and the second instruction asked for below was, in substance, no matter where the southeast corner of the 50-acre grant in truth is, if at the time Robert 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 controlled 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 50-acre grant to Robert Patton, under which plaintiff's claims are established, and its entire location is mathematically certain. The deed from Robert to Aaron Patton, under whom the defendant (606) claims, being at the southeast corner of the 50-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 southeast corner of the 50-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.
PER CURIAM. No error.
Cited: Gainey v. Hays, 63 N.C. 498; Mizell v. Simmons, 79 N.C. 193;Deaver v. Jones, 119 N.C. 600; Lumber Co. v. Lumber Co., 169 N.C. 95. *Page 466