Boyden v. . Hagaman

Hoke, J. We have given the case most careful consideration and find no error in the proceedings below, assuredly none that gives the plaintiffs any just ground of complaint. . The beginning corner of defendant’s deed, at the junction of Joe’s Fork and Buffalo Creek, was admitted, and there was no dispute between the parties as to the location of the lines around the northwestern and northern part of the land from that point to the figure 9, the northeastern corner of the land, being the point where the “John Hawkins line meets the Thomas Hawkins line,” as set out in defendant’s deed. There were facts in evidence tending to show that Thomas Hawkins owned or was in possession of and claiming lands on the east of the land in question and on the south of it on both sides of Buffalo Creek, and, under the charge of the court, the jury have necessarily found that, from the figure 9 south to 8-7-6-5-4-3-2-1-24-23-22, to a point on the creek at 22, 16 poles south of the mouth of the still-house branch, there were lines of the Thomas Hawkins land, called for in defendant’s deed, fixed, established, and continuous. *202 There were facts in evidence to support the finding, and, this being true, bis Honor correctly held that the legal method of locating the deed would be to run directly from 22, the last known point of the Hawkins lines, to the next call in the deed that was fixed and established, towit, the “mouth of the still-house branch.” The ruling is in accord with our decisions applicable to the question, McPhaul v. Gilchrist, 29 N. C., 169; Shultz v. Young, 25 N. C., 385; Hurley v. Morgan, 18 N. C., 425; Sandifer v. Foster, 2 N. C., 237, and, applying the principle to the facts as accepted by the jury, justified the conclusion that the boundaries of defendant’s deed were properly placed and included all of the land in controversy. It was earnestly contended for plaintiffs that the location of the Hawkins lines, declared by the jury to be the eastern and southern boundaries *203 of defendant’s deed, should not be allowed to stand, because the evidence as to some portions of these lines failed to show that they had ever been run or marked, and, therefore, they could not properly be considered as “fixed and established” within the meaning of the principle; but if it be conceded that the rule requiring that the lines of another’s tract called for in a deed should be “fixed and established with precision” applies in this case, the authorities are to the effect that these lines need not necessarily have been “run and marked,” but if they are fixed and ’established by the usual rules adopted and recognized in the survey and location of deeds they may come within the meaning of the rule and so fill the description. Corn v. McCrary, 48 N. C., 496, cited in Lumber Co. v. Bernhardt, 162 N. C., pp, 460, 465. As a matter of fact, this doctrine, requiring that the lines of another tract, called for in a deed, shall be fixed and established with assured precision, is one that is, at times, called for where there is conflict in a deed between such calls and that by course and distance, and does not always or necessarily prevail in deeds of the kind presented here, where no such .conflict is presented. It was further objected for plaintiffs that the declarations of John A. Boyden were received in evidence in support of defendant’s claim of ownership. In the brief of plaintiffs the objection was made to rest on the ground that this suit, not being an action to correct or reform the deed, the declarations of John A. Boyden in contradiction of the description, appearing in the deed, were inadmissible, but this position is not open to plaintiffs on the record, for the reason that his Honor, in the charge, told the jury in very explicit terms that such declarations could in no wise change the description as it appeared in the deed, and that these declarations were only relevant on the question of boundary and in so far as they tended to fix the location of the lines as called for. In that aspect of the evidence the only declarations having appreciable significance or which could have affected the result were as to the existence and placing of the Hawkins lines on the east and south of the tract, as claimed by defendant, and these were made at a time when John A. Boyden, as trustee, was in possession and control of the property, having a survey and examination made, and with a view of executing this very deed under which defendant claims, and such declarations were competent, both as being against interest and by one in possession of property defining the limit of his claim. Smith v. Moore, 142 N. C., pp. 277-290; Ellis v. Harris, 106 N. C., 395; Clifton v. Fort, 98 N. C., 173; McGee v. Blankinship, 95 N. C., 563. True, as to the position of the land in controversy, John A. Boyden may have been only a trustee, and the declarations of a mere trustee are not, as a general rule, competent as against the interest of the bene *204 ficiary; but tbe position does not obtain where, as in this instance, tbe declarations were made in tbe course and performance of declarant’s duties as trustee and when be was in present possession and control of tbe land, asserting his ownership under tbe deed. Chamberlain’s Evidence, sec. 1327; 2 Ed. Jones on Evidence, sec. 253, p. 319. As heretofore stated, we find no reversible error in tbe trial, and tbe judgment for defendant must be affirmed. No error.