(dissenting): The two calls in the grant to, John Gray Blount, offered by the defendant, and which gave-rise to the controversy, were: “ South 360 chains to a stake-supposed to be in Stokley Donelson’s line, thence with his line 390 chains to his north-east corner.” The learned judge and exjoerienced real-estate lawyer who tried the-case below was asked to instruct the jury that those two-calls taken together were too vague and uncertain to vary course and distance, and should therefore have been run 360 poles from the admitted beginning at Paint Bock, and thence east from the point where the distance gave out, 390 poles. Instead of complying with the request the judge told the jury that the first call, “ 360 chains to a stake near Stokley Donelson’s line,” standing alone and of itself could not be extended beyond the actual distance,, and therefore if counsel for the defendant contended that it should have been extended, that question was not raised *878by the appeal. But the judge did instruct the jury that, construing the second call with the first, if they considered the evidence sufficient to locate the Donelson line, as one that had been run and marked, or that it was susceptible of being located with mathematical certainty by running from known points, then the second call would run from the end of the first to the nearest point on the Donelson line, and with it east three hundred and ninety poles.
Pretermitting the inquiry as to the sufficiency of the evidence submitted to the jury to determine whether there was either a marked or a mathematical line of the Stokley Donelson survey located so that an extension of the first line from the end of the distance ('360 poles) would intersect it, we are confronted at the outset with the question whether the first and second call, construed together, oughtto havebeen run — as his Honor told the jury — to such line; if established satisfactorily to them in either way.
1. Addressing the argument to this point first, we will find that our Reports furnish a long line of authorities bearing directly upon it and beginning as far back as the Conference Reports, when the land law of North Carolina, in its formative period, was shaped by jurists whose good judgment and practical knowledge of surveying, as well as clear apprehension of legal principles, fitted them in an eminent degree for the task of adapting the expansive principles of the common-law to a new subject in a new country.
In the early case of Doe on the demise of Sandifer v. Foster, 1 Hay., 283, the call next to the last of a deed was for a white oak, (which stood a half mile from the river,) and the last call was “ thence along the river to the beginning.” The Court held that the line should be extended from the white oak a half mile, and then run with the river to the beginning, though by so running, instead of *879directly from the white oak to the beginning, a large additional area of land would be embraced in the patent, and the reason given was that it had always been thus uniformly decided in this Court.
In Hartsfield v. Westbroook, 1 Hay., 258 (297), the call was from a tree not at a swamp to another not at the swamp down the swamp to the beginning. The Court declared the time line to be to the swamp from the first tree, then with the swamp to a point opposite the second tree. The two cases last mentioned are cited with approval in Baxter v. Wilson, 95 N. C., 137.
This principle is familiar to layman and lawyer in the practical application of it upon which a call from one corner tree to another on the bank of a stream runs ad filum aquw to a point opposite the corner called for and then to it by a course at a right angle with the general direction of the stream between the two points.
The rule laid down in the early case of Bradford v. Hill, 2 Hay., 30 (22), was that courses and distances must be observed except where a natural boundary is called for and shown, or when marked lines and corners can be shown tv have been -made at the original survey.
When the call is from one known corner to another, by a certain course and distance “ but with ” a certain public road, the line must be varied from course and distance so as to run to and with the public road ; and, as between two branches of the road, it is for the jury to determine which was the public, road when the deed was executed. Hough v. Horn, 4 D. & B., 228. A striking instance of the rule requiring an off-set to be made to intersect with and run with marked lines in order to fulfill all of the descriptions of a deed, is found in Blount v. Benbury, 2 Hay., 542 (353), where the call was running south 85 east with Beasley’s and Blount’s lines, Blount’s line being located *88051 poles north of and parallel with the other. The Court held that it should be run with Beasley’s line till it gave out, and then 31 poles to Benbury’s line and with it, Judge Hall giving as a reason that there “ had been many decisions in this country which warrant a departure from the line described in a deed or patent, to follow a marked line which the jury have good reason to believe 'toas the true one.” The doctrine of filling as nearly as possible all of the descriptions is founded upon the familiar rule that a contract, should be so construed as, if possible, to give effect to all of its provisions, and is commended in its application to questions of boundary in Shaffer v. Hahn, 111 N. C., 1, and Buckner v. Anderson, Ibid., 572. Another case exactly on all fours with this, and in which the Court cited and approved Blount v. Benbury, supra, was Fruit v. Brower, 2 Hawks., 337. There, the call which gave rise to the controversy was from a marked corner, a black oak “ along said old line (Thomas Williams’) west to a stake in McGee’s line.” The court below instructed the jury that the line extended to Thomas Williams’ old line, wherever that was, notwithstanding the black oak corner and a line marked from it in the proper direction, and this ruling was affirmed. The effect there was to locate the line by running from the black oak about twenty poles at a right angle to it, (as it is here proposed to run to the Donelson line,) and thence with the Thomas Williams line so as to increase the acreage embraced in the tract by this departure from the course about one-fourth. A glance at the calls of the Blount grant will show that the proportional increase in this case is not in any aspect of the evidence one-third. The two last cases are cited in Dobson v. Whisenhant, 101 N. C., 648. A deed of conveyance is an executed contract, and in its interpretation we must begin with the admission that the description, if *881sufficient, is so far ambiguous as to require parol testimony “to fit it to the thing.” Safret v. Hartman, 7 Jones, 199. Where the calls are conflicting the courts incline always to adopt that which is the more certain, following the fundamental principle upon which the whole of the law of evidence is founded. Hence, in the absence of proof of a line and corners actually run and marked and agreed upon by both of the parties when they entered into the contract, a call for a natural object is deemed more certain than course or distance, and when identified will control both. In McPhail v. Gilchrist, 7 Ired., 169, the two last calls of the deed were “ thence north 87 west 179 poles to a hickory, thence the course of the swamp to the beginning.” The distance gave out nine chains and fifty links from the swamp, and there was no hickory found, nor was its previous existence at. any place shown. This Court approved of the charge of the judge that the line must be extended to the swamp, (just as in this case to Donelson’s line,) and thence to the beginning. Hurley v. Morgan, 1 D. & B., 425; Lynch v. Allen, 4 Dev., 62; Bectton v. Chesnutt, Ibid., 335; Stapleford v. Brinson, 2 Ired., 311; McPhail v. Gilchrist, supra; Literary Board v. Clark, 9 Ired., 58; Spruill v. Davenport, 1 Jones, 203; Waters v. Simmons, 7 Jones, 541; Strickland v. Drawhorn, 88 N. C., 315; Brittain v. Daniels, 94 N. C., 781; Redmond v. Stepp, 100 N. C., 212.
2. If it is undeniably true, as the authorities cited and others which might be added, show, that the call thence with Stokley Donelson’s line would prolong the first line till it should intersect that line, and then run with it, if it could be established to the satisfaction of the jury, we are brought to the discussion, first, of the question whether the judge below erred in holding that there was evidence, which the defendant had a right to demand should be sub*882mitted to the jury as tending -to show the existence of the old marked Donelson line ; and that, if the jury believed it was ascertained, as contended by the defendant, they should locate the second call by running from the end of the call for 360 chains to it, and then with it. The Court, in the opinion in the former case, was not advertent to the testimony offered to show the line of the Donelson tract, to which defendant contends that the line of the JBlonnt grant extends. A. M. Gudger testified that he was present when Biackstock ran the Stokley Donelson line from the line trees (which are called for as dogwood in the third call, of the Blount grant). Pie testifies that Biackstock, a surveyor, in the year 1856, blocked a linn tree at the point now claimed by defendant, to be the Stokley Don-elson corner, and the marks corresponded by count with the daté of the Donaldsou grant. lie further testifies that Biackstock the surveyor, and Job Massey, both now dead, told him the linns were the corner. A. M. Gudger testified that, in ruuning from those trees 275 chains north, to the north-east corner, (called for in the Blount grant, and thence along the line of the Donelson tract, which the defendant insists he has so located as to extend his line to it,) he and Biackstock found, 40 years ago, old marked line trees on that north line. Dr. Neynolds testified that he had always heard the point now spoken of by Gudger as the linn corner called the Stokley Donelson. beginning corner, and that he ran the Donelson deed from it north, and then along what is the north line, with which defendant claims to run east, and found “ old marks — very old ” along the line. Nobert Justice testified that one Davis, now dead, showed him the linn stumps, and said that was the Donelson corner, and that the place was called by some the “Neynolds Camp,” and by some “Puncheon Camp,” by both of which descriptions its location is indi*883cated in the grant, and that the place corresponded with the grant, in that it was near a spring. In running from the linns so pointed out, it seems that Justice also found old marked trees that Davis said were the linn trees of the Donelson grant, but his testimony is not given very fully or stated very clearly upon that subject. Tweed, the last surveyor, ran from a linn stump near a spring, shown to him as the beginning corner of the Donelson grant by the plaintiff. He found no marks.
It was contended that the testimony that a stump was shown which was reputed tobe a corner was not evidence to go to the jury. In Murray v. Spencer, 88 N. C., 357, it was held that a stump without a mark upon it, but which had been pointed to as a corner by reputation for 30 years, was some evidence that a linchad been run corresponding with the first call of the grant, from that stump as a beginning, and citing Icehour v. Rives, 10 Ired., 256, (where he said the very point was decided,) Justice RuffiN added: “ This must of necessity be so, or else the very flow of time, which should give sanctity and security to titles, will ultimately undermine them by destoying the perishable objects denominated as their boundaries and removing the witnesses acquainted with the localities.” There being some evidence of marked lines, the question was properly submitted to the jury, and if they found, even upon evidence of reputation, that there were old marked line trees along the Donelson line as contended by defendant, and believed they indicated the location of the true Donelson line, the first line ofthe Blount grant should have been extended. “ In questions of boundary, marked lines or trees are more certain than course and distance, and should control them.” McNeill v. Massey, 3 Hawks., 91. Judge HkNdeesoN said in this case: “'Whether they (the lines called for by adjacent patents) proved that marked trees were once *884there, is an inference of fact that belongs to the jury.If such were not the law, most of our patents would change their locality, as our marked trees decayed, and as our proofs direct of their having once stood there were lost.” The reasoning in that case would have justified the court below in telling the jury that they might infer the location of the line of an adjacent tract when a survey of it from known points fixed the location of such line. The earlier cases of Reddick v. Leggat, 3 Murphy, 529; Orbison v. Morrison, Id., 551; and Tate v. Greenlee, Id., 556, all concur upon the point that where there is any evidence tending to establish the location of a line it is the province of the jury to determine where it is, and it is error in the court to express an opinion as to its location. There being evidence of the existence of a marked line, the judge properly left the jury to determine its sufficiency to establish the line.
How is a mathematical line, or one that can be established “ with mathematical certainty,” (which the trial judge properly hold to be synonymous) to be defined ? Evidently “mathematical” is used in the sense of “demonstrable by the use of mathematics,” or by the rules of surveying, which is a branch of the science of mathematics. The question as presented by the learned reporters in Beckton v. Chesnutt, supra, was whether a branch as a distant natural object was to bp followed “in preference to the mathematical description by course and distance.” Id certum est quod oertwm reddi potest is the maxim which furnishes the test of the sufficiency of a description in a deed of conveyance; (Mann v. Taylor, 4 Jones, 273) and hence where there is a single corner .which can be identified and located, the surveyor can run from that, •when the course and distance of other calls are given, and establish the location of all the other lines and corners by *885tbe “ mathematical description of course and distance.” It is a mathematical axiom that two points establish the direction of a line and that two points at either end being ascertained will locate the whole line. But it is equally an axiomatic truth that one of five or six corners being known, and the distances of every call given, a tract of land can be located with mathematical certainty, that being regarded in law as certain which can be made certain by the survey. Hinchey v. Nichols, 72 N. C., 66. “ The line of another tract, which is called for controls course and distance, being considered the more certain description, and it makes no difference,” says Pic arson, J., in Corn v. McCrary, 3 Jones, at p. 499, “ whether it is a marked or unmarked or mathematical line, (as it is termed in the case,) provided it be the line that is called for.” Bin it is contended ihat no line is a mathematical line, within the rule laid down by PearsoN, J., unless both ends of it are located. This contention is based upon the idea that, in a single case where the unmarked'line was held sufficient as a mathematical line, the two corners at either happened to be proved. But this is a non sequitur. In Corn v. McCrary, there was testimony tending to show a chestnut corner at one end of the line 5, 6, just as there was evidence in our case from which the jury might have found one marked corner of the particular line called for. If, however, the jury believed that the line corner was located where Gudger testified that Blackstock blocked the tree, and ■where the location was fixed by so much hearsay testimony and by reputation; strengthened by the proximity of the spring called for, then, the course and distance of every line being given, the surveyor, under the maxim, id cerium est quod cerium reddi potest, could, by a survey made according to the rules prescribed in every mathematical treatise on surveying, have ascertained with absolute certainty the location *886of the lines, and thereby have “ fitted the description to the thing.” Who has arbitrarily prescribed the rule that a line, located by the two points admitted to be at each end of it, is any more a mathematical line than when the two ends are ascertained by measuring the known distance from other known objects, and from each other ? Both lines are located upon mathematical axioms and with mathematical certainty.
In the former opinion the Court was inadvertent to the law as well as the facts in holding that the number of acres included in the boundary as run, upon the different theories of the parties, could be considered by the jury, much less by the court, in coming to a conclusion as to the location. At most, quantity was but a circumstance to be considered by the jury for what they deemed it worth, not by the court as conclusive of the location of a line as a question of law. What are boundaries is a question of law. Where they are to be located by quantity or other competent evidence is to be determined by the jury. “ If one grant to S. S. 1,000 acres and no more, according to certain lines and include 2,000 acres, (said the Court in Reddick v. Leggatt, supra,) the 2,000 acres pass, because the huts and bounds are more certain than the quantity.” Bo the buts and bounds, if fixed by the jury (as it was their province to do) so as to extend to the Donelson line, are more certain than quantity, and upon that principle must control. In Miller v. White, Taylor’s Rep., 309, (Battle’s Ed., 135,) a line calling for +0 poles was hold to be properly located by extending it 40 poles fuither, or double the distance, to reach a line called for. In Johnston v. House, 2 Hay., 301, though it appeared that the surveyor made his certificate extending a line only 80 poles instead of 160, when he had made a line in his certificate, in order to reduce the acreage from 712 to that called for, (640 acres,) the Court held *887that the line was properly extended to the marked corner at 160 poles. Numberless instances can be shown where the acreage was proved to have largely exceeded that called for, yet no instance, except in the opinion in this case, can be found, where, in a suit between private parties,.course and distance have been declared .by the Court sufficient in law to control, instead of a call for a natural boundary, lest a patentee should hold too many acres. Whether the State has been defrauded is not a question to be considered in settling conflicting claims of individuals involving the location of boundaries. If the courts are to determine, where the testimony is conflicting, whether a given boundary includes a reasonable number of acres, how can counsel advise clients, when the calls of a grant happen to include more than the number of acres- specified? It is better that the law should be wrong than uncertain.
But there are two other reasons why quantity should not be considered in this case : First, th'e land inside of the boundary which had been granted by older patents was expressly excepted, and the area of that is left by the evidence uncertain, though the burden was upon the plaintiff to show fraud, if it was competent for him to prove it. In the second place, it was in evidence that the surveyor made a mistake in running another line that, if corrected, would have extended the call east 360 chains, much nearer to the line claimed by the defendant to be Donelson’s line, and would have reduced the acreage correspondingly. For the' reasons given the charge of the court below was not erroneous, and the judgment ought to have been affirmed.
Clark, J.: I concur in the dissenting opinion.