The principal question in controversy, was the location of a deed from William Missell to Joseph Gainer, dated 28th of May, 1793, the calls of which, are as follows: "Beginning at a pine on the Little Pine Log, and running a straight course to the Great Pine Log; thence down the said Pine Log Branch to Joseph Gainers line, c." It was agreed that the letter I, in the annexed plat, was the beginning of the deed, and that the line I K, is the nearest straight course to the Great Pine Log Branch. The plaintiff contended that I K was the first line of the deed
The defendant contended that I G was the true line, and introduced oneJames F. Latham, a surveyor, who proved that at G there was a marked pine, and that along the line I G, there were marked trees that appeared to have been marked twenty or thirty years ago.
One Robert Gurganus testified that about thirty years ago, he was present at the running of the dividing line between Jonathan Caraway, under whom the plaintiff claims, and Joseph Gainer; that they run the line I G; that there were no marks along the line; that the parties set up a stake, and agreed to mark it at some future time, they were running to hit a marked pine, and came within a few feet of it; that he saw the marked pine at G on that day, and it was agreed between the parties, then present, that it was the corner of the Missell deed; that it had been shown to the witness as such corner by the father of the plaintiff about ten years before that time.
Other witnesses testified that both Jonathan Caraway and the Plaintiff had repeatedly acknowledged that I G was the true line between them and Gainer, and that G was a corner of the Missell deed; that the father of James Caraway and James Caraway had worked up to the line I G on the east, and that Joseph Gainer had done the same on the west side of it more than thirty years ago, and that his widow had cut wood up to I G after the death of Joseph Gainer, and that *Page 363 others of the heirs of Joseph Gainer, had cut fire-wood and made tar-kilns west of I G, but close up to it on the part now contended for by the plaintiff's lessor.
[EDITORS' NOTE: THE DIAGRAM IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE 51 N.C. 363.]
The plaintiff's counsel requested the Court to instruct the jury that there was no evidence that the line I G was run or marked as a line of the deed at the time it was made, or that the point G was established and marked as a corner, at that time; that there being no call for any marked line or corner in the deed, in law, the line must run from I to K.
On this point, his Honor instructed the jury that the law required the line to go along I K, unless the defendants had satisfied the jury that the line was actually run between I and G at the time of making the deed, and that the defendants had offered evidence on that point, but that the jury must be satisfied that it was actually run at the time of the making of the deed, and then they would go to the line actually run. — Plaintiff excepted.
Verdict for the defendant. Judgment and appeal by plaintiff. The description in the deed from Missell to Gainer, is not complex, calling for several objects which, upon the evidence would carry the lines to different points, but it is simple and turns out to be consistent in all its parts. It "begins at a pine on the Little Pine Log, and runs thence, a straight course to the Great Pine Log; thence down the said Pine Log to Joseph Gainer's line; thence along his line to the Little Pine Log, thence up Little Pine Log to the first station." It is admitted that the beginning pine stands at I, in the plat, and it appears by the plat that the line B, H, C, is the line of Joseph Garner mentioned in the foregoing description. It is to be observed in the first place, that there is neither course nor distance given in the deed, nor any tree called for, as a line or as a corner, except the pine at the beginning. — The question in the case then, is, how the first line is to go; to Big Pine Log Creek, certainly, as a natural boundary which is called for, and it must go there by the most direct and shortest line, since there is no diverging course given, nor any particular object on the creek as the corner. That is the construction of law on the calls for the first line, and it is found by mensuration, that I K represents the line answering to that construction. It might, perhaps, be varied, if there were other calls in the deed for the subsequent lines, which would show that it was not really the terminus of the first line. But there is no part of the description as to the other lines, which can conflict with the construction establishing I K. Upon the face of the deed, therefore, that line is the true one, and it was so laid down in the instructions to the jury. But his Honor held that it might be varied from the call, if another, I G, for example, was actually run at the time of making the deed, and that such line, then actually run, is the boundary in law. The position involves two question as applied to this case. The one is, whether it be true, in law, that the running or even marking a line different from that answering the calls of the deed, can control the calls of mesne conveyances; which has been gravely questioned more than once;Wynne v. Alexander, 7 Ire. Rep. 237. But this case *Page 365 does not require that point to be decided; for another question obviously presents itself here; which is: whether there was evidence on which it ought to have been left to the jury to find that the line I G "was actually run at the time of making the deed." Cases have gone the length of saying that marked trees corresponding in age, though not called for, may control course and distance or the like, in a patent. Supposing that rule may be applicable to mesne conveyances also, it cannot with respect to them, extend further than it does to grants from the State. The running and marking then, must be contemporaneous with the execution of the conveyance, and that is ascertained by the yearly annular lamince of the tree, thus raising the presumption that the survey and marking were for the particular tract conveyed, or intended to be conveyed. Of such a running, as it is called, nothing less than the contemporaneous marking has been deemed sufficient, or competent evidence. Here the pine at I was marked and is established; but there was not a mark on the line from I to G, until a survey about 1829, while the deed was made in 1793. It is true, the pine at G, was marked before 1829, but when, or for what purpose, is not stated at all. Here, that deficiency of evidence was supplied by other evidence, that persons, under whom the parties claim had agreed, or admitted that the pine at G was the corner of the tract conveyed by Missell, and had respectively performed acts of ownership up to the line I G, as the line between them. Upon the question of boundary, that is not evidence of itself, for such admissions and acts cannot change the identity of the thing described and conveyed in the deed, as that would be to change the description by parol and acts in pais. It may be proof in aid of marks, that the conveyance was founded on a particular survey and marking. Beyond that, it seems most dangerous to carry the exception to the general rule of law, that a deed speaks for itself and by itself, when there is no ambiguity, but a consistency in the description given in it. There are here, no vestiges of a survey and marking, from which a jury could possibly infer, that the line was "run" for this sale, *Page 366 and that the parties adopted that running in the attempt to describe the land in the deed. It was, therefore, erroneous, to submit the point to the jury, and there must be a venire de novo.
PER CURIAM, Judgment reversed.