FROM LINCOLN. The only question between the parties was whether seventeen feet front was a part of lot No. 3 in the plan of the town, to which the lessors of the plaintiff had title, or of lot No. 2, of which the defendant was owner.
The lessors of the plaintiff proved that lots Nos. 1, 2, and 3 were coterminous; that the beginning of lot No. 1 was well ascertained; that the lots were described in the deeds, and also in the plan of the town, as being six poles in front; and by measuring from the beginning of lot No. 1 and allowing six poles only to each lot, the land in dispute clearly formed a part of their lot.
The defendant contended that the lots were in reality laid out six poles and six feet wide, and if this was the fact, the land in dispute as clearly belonged to him. (416)
The lessors of the plaintiff objected to parol proof of the lots being wider than they were described to be in the deeds and in the plan. But the presiding judge, holding that such evidence was sanctioned by a series of decisions in the Courts of this State too well established to overrule, admitted the testimony.
The defendant then proved that twenty years before the commencement of this action the lessors of the plaintiff and himself had dug a well and erected a wash-house, so as to stand equally upon their respective lots, as they then thought the dividing line between them to run, allowing six poles and six feet to each lot; that this well and house had *Page 268 been used by them in common; that Mr. Alexander, under whom the lessors of the plaintiff claimed, more than forty years ago had erected an office on what was supposed to be the corner of lot No. 3, estimating the lots to have six poles and six feet front, but by confining the lots to six poles, this office stood seventeen feet in the street next below lot No.
3. Evidence of a general reputation that the lots were six poles and six feet wide was also introduced, and it was proved that in other squares of the town they were laid off of that width.
It was like wise proved that under a private act passed in the year 1816, commissioners were appointed who surveyed the town anew; that upon that survey the plaintiff's lot was found to have seventeen feet front more than it was entitled to; that in submission to an award of these commissioners he paid $50 for the surplus; that after this survey the defendant claimed six feet of land before that time admitted by him to belong to the lot No. 1, and received possession of it, and agreed to pay the lessors of the plaintiff $100 for the land now in dispute.
His Honor instructed the jury that if the boundaries of the lots Nos. 1, 2, and 3 had been run and marked at the time the town was (417) laid out, then they should be governed by the lines actually run. That if they were not satisfied by the evidence that the boundaries had been thus run and marked, then that they ought to be governed by the description of the boundaries contained in the deed.
A verdict was returned for the defendant, and the plaintiff appealed. We are not aware of any such series of decisions as that mentioned by the judge below. It is true, that during the time of Judge HAYWOOD there were many decisions on the subject of boundary which placed the question so much at large that the description contained in the deed was almost totally disregarded. But many of them never met the approbation of the profession, and for many years we have in all cases, I believe, except one, adhered to the description contained in the deed, and it is much to be lamented that we do not altogether. The case to which I allude is where the deed describes the land by course and distance only, and old marks are found corresponding in age as well as can be ascertained with the date of the deed, and so nearly corresponding with the courses and distances that they may well be supposed to have been made for its boundaries, the marks shall be taken as the termini of the land. This is going as far as prudence permits; for what passes the land not included by the description in the deed, but included by the *Page 269 marked termini? Not the deed; for the description contained in the deed does not comprehend it. It passes, therefore, either by parol, or by a mere presumption. As far as we know, there has been no series of decisions by which the description in the deed is varied (418) by marks, unless they were made for the termini of the land described in the deed, or supposed to be so made, and to which it was intended the deed should refer, or to which it was supposed the deed did refer; or, rather, supposed that the courses and distances corresponded with the marks, and that the same land was described, whether by course and distance in the deed, or by the marked termini. Not recollecting that all admeasurement was uncertain, it was settled that in such cases the marked termini should control the course and distance mentioned in the deed. But even this does not admit of parol evidence to show that lines were run six poles and six feet, instead of six poles only, as in this case. Neither does this rule authorize proof that the parties afterwards made or marked a line between them; that they dug a well, or erected a house where they thought the boundary was, for such acts or marks were not done or made to describe the calls of the deed. For the deed had been made already, and these were not contemporaneous transactions. They were not intended to be, and to remain as monuments of description, erected when the tract was separated from other lands, or was passing from one hand to another, and required a name, a description, an identification, by which it should be known from other lands. They were not intended as monuments to point out the boundaries. Suppose the well was not on the line, would the party saying that the line was there change its location? It is true, such acknowledgments are evidence of the place where the marks or termini once were, but it is only evidence when it has been shown or appears there were some marks to which such acknowledgments pointed. Here there is no evidence that any such ever existed.
Even in cases of any other description than that by course and distance, as where marks, as trees, rocks, water courses, or other things, are called for in the deed as termini, the rules of law and the rules of construction make them the termini of the land, and although they may vary from and even be in direct opposition to, the courses (419) and distances set out in the deed, when established, they control the weaker description of course and distance. Their variance from the course and distance only increases the difficulty of proving that they are in fact the termini named. But when proven (by which I mean satisfactorily established), they are the termini adhered to; as in the case of Person v. Roundtree, 1 N.C. 69; S. c., 2 N.C. 378, or which is consistent with the most rigid construction of deeds. I therefore think that the parol evidence should have been rejected. *Page 270
No one can find fault with the law as laid down by the judge in his charge as a mere abstract proposition. But there was no such case made by the evidence. There was no proof that the boundaries had been marked. The judge should have told the jury that there was no evidence to control the courses and distances, and that the lots were described and bounded only by the course and distance. For, although it is not proper for the judge to say how much the evidence weighs, yet if it weighs nothing, it is his peculiar province to declare it. With that question the jury have nothing to do.
PER CURIAM. New Trial.
Cited: S. v. Cardwell, 44 N.C. 249; Gause v. Perkins, 47 N.C. 226;Davidson v. Arledge, 88 N.C. 332; Baxter v. Wilson, 95 N.C. 144; Higdonv. Rice, 119 N.C. 626, 627; Batts v. Staton, 123 N.C. 48; Elliott v.Jefferson, 133 N.C. 212; Boddie v. Bond, 154 N.C. 367; Clarke v.Aldridge, 162 N.C. 330; Allison v. Kenion, 163 N.C. 585.
(420)