The new trial was properly ordered by the court, as the effect of the instruction was to ignore the calls of the grant and adopt a line which was not run and marked at the time the grant was issued, and with a view of making it one of the boundaries of the grant. This case is not within the principle established in Cherry v. Slade, 7 N.C. 82;Safret v. Hartman, 50 N.C. 185; Fincannon v. Sudderth, 140 N.C. 246;Elliott v. Jefferson, 133 N.C. 207. It will be seen upon an examination of these cases that none of them sustains the contention of the defendant that the instruction of the court was correct and the verdict should stand. The rule that a line actually run by the surveyor, which was marked and a corner made, entitles the party claiming under the patent or deed to hold accordingly, notwithstanding a mistaken description of the land in the deed, presupposes that the patent or deed is made in pursuance of the survey and that the line which was marked and the corner which was made were adopted and acted upon in making the patent or deed, and therefore gives them controlling effect. Elliott v. Jefferson, supra. The court below, in Safret v.Hartman, supra, charged the jury "that notwithstanding the black oak was not called for in the deed, yet if it was marked as a corner to the land conveyed, at the time of the conveyance, the line should be extended to it, regardless of course and distance." This Court held the instruction to be erroneous, and adverted to the rule as we have already stated it. It does not appear in this case that the patent was made in pursuance of what the surveyor testified was done by him, but, on the contrary, the call is north from the southwest corner of entry No. 3058 with the line of that entry to Webb's line; thence west with his line 20 poles to his southwest corner; thence north with his line 20 poles to a stake, and thence with the several courses and distances to the beginning. We do not know what the evidence will be at the next trial, and therefore can not determine what the boundaries of the grant are. We are of the opinion, though, that the call in grant No. 893, namely, "running with the line of the entry," does not refer to the line of entry No. 3059, upon which grant No. 893 was issued, but to the line of entry No. 3058, upon which grant No. 895 was based. This (44) appears clearly from the wording of the two grants. Chapter 173 *Page 37 of the Laws of 1893 provides for the correction of the calls of the entries by the descriptions in the grants issued to George N. Folk, and declares the latter to be "the true and proper descriptions." This act was passed before the entry of the defendant had been laid. The court did not err in setting aside the verdict and ordering a new trial.
No error.
Cited: Lance v. Rumbough, ante, 25; Lumber Co. v. Lumber Co.,169 N.C. 89, 95.