The decision depends on the length and
Where the call is for the line of another tract of land, the course and distance must yield to it, provided that at the time of the grant, the line called for was an established line, or capable of being then established. But where there is no such established line at the date of the call, a call for such line must be disregarded, and the course and distance pursued. Carson v. Burnett, 1 Dev. & Bat., 546.
There was no evidence here, other than what appeared in the grant itself, of the previous or contemporaneous existence of an Isaac Jordan boundary, or of any grant, deed, possession, line of corner answering such a description. But the call itself, the “ supposed bounds ” and the “ supposed line ” of Isaac Jordan, clearly indicates that there was then ■no established and known line. It was therefore totally irrelevant to show, that long subsequent to the grant, a line between the beginning corner of the grant and the head •of Speller’s creek, at GB, proved to be the Walling line, was reputed to be the same as the Isaac Jordan line. Course .and distance, is a certain description in itself, and to make it yield to a “ supposed line ” supported by neither deed, possession, nor marked boundaries, would be to make the .more certain yield to the less certain and fallacious, when the rule is that course and distance give way only to something which is more certain.
Laying aside so much of the call as relates to Isaac Jordan’s bounds and line, the real question in the case is,— when the call of a grant is from an established corner on the river, “ south 300 poles in the pocosin, to or near, the Lead of “ Speller’s creek,” the course and distance must
• The same principle is decided in Kissam v. Gaylord, Busb., 116, and Spruill v. Davenport, Ib., 134. Our reports contain many decisions in land cases, and perhaps the legal principles which should govern in the ascertainment of boundaries have been as thoroughly discussed-and settled in North Carolina as in any other State, but we have been unable to find a single case where it has been held that when a deed without other description’ calls for a certain course and distance to an object designated by the alternative words “ to or near,” the mathematical call shall be controlled by such an ambiguous and elastic description. Neither course nor distánce can be departed from, further than the one or the-other is necessarily controlled by other calls which demonstrate that’ the course and distance stated in the deed, were-stated by mistake. To give such an effect to the undeter-minate call, “to or near the head of a creek,” would be to cut loose from all the rules established for the ascertainment of boundaries with the greatest degree of precision and certainty. Literary Board v. Clark, 9 Ire. 58; Harry v. Graham, 1 Dev. & Bat. 76.
Where it is clear that if there was a mistake, it was n'ot in the course and distance, but in supposing that there was such a place as the head of the creek, in the neighborhood of the end of the line, there can be no deviation from course and distance. Carson v. Burnett, supra.
So far we have forborne to mention that the plaintiffs claim under two grants, the second of which lies below, adjoining and along side of the first grant. The only contention in reference to this, respects the second call, which is east to the line of the first, whereas that course would lead directly from the first tract, and the lines would not close so as to include any land. The mistake is so obvious, and so fully corrected by the other calls and the plat annexed, that it presents no difficulty. The Courts will construe east to mean west, to correct a mistake, when the intent of the parties appears, and the means of correcting it are presented. Cooper v. White, 1 Jones, 389; Houser v. Belton, 10 Ire., 358; Campbell v. McArthur, 2 Hawks, 33. So also in -extending the line west instead of east, the course called
It has been often held by this Court, that what are the. termini or boundaries of a deed, is a matter of law) for the Court; but where they are, is a matter of fact for the jury. In our view it was necessary as a matter of fact to ascertain where was the head of Speller’s creek, because as matter of' law, the terminus of the first line of Patent A was at tlie end of the course and distance called for, from the beginning corner. In that we concur in the conclusion of the* referee. We also concur with him that the second call of Patent B must be construed to call west, when the call is east. No exception was taken to the finding of damages by the referee. The rulings of His Honor sustaining the exceptions of the defendants will be reversed, and the judgment of the referee upon the report will be affirmed. The-Court below allowed the referee $125 for his services, and as the allowance was not excepted to, that sum will be added to the judgment against the defendants.
There is error. Judgment reversed and judgment will be rendered here according to the finding of the referee, with the addition of his allowance as indicated.