Fincannon v. Sudderth.

*250 Connor, J., after stating the case: The sole question presented by the plaintiffs’ exception to His Honor’s ruling is whether, by a proper construction of the deed from Berry to Isaac Eincannon, the call for the Sudderth-Johnson tract shall control the other calls, thus making the southern boundary of that tract their northern boundary. The third rule for construing the language used in deeds in respect to boundary laid down by Chief Justice Taylor in Cherry v. Slade, 7 N. C., 90, is: “Where the lines or corners of an adjoining tract are called for in a deed or patent, the lines shall be extended to them without regard to distance, provided these lines and corners be sufficiently established and that no other departure be permitted from the words of the patent or deed, than such as necessity enforces or a true construction renders necessary.” The reason of the rule is stated with his usual clearness by the learned Ghief Justice. This is the leading case on the question of boundary in our reports and has been uniformly followed, the last case in which it is discussed being Hill v. Dalton, at this term. Applying the rule to the deed in question, we would hold that the words “being a corner of a tract of land owned by the heirs of S. A. Sudderth and known as the Johnson tract, and runs west with the line of the Sudderth tract 228 poles to a stake in the old Jonathan Duckworth line,” would control the other calls when contradictory. The defendants, however, contend that another rule should be invoked and applied by which the call for the “rock,” followed by the other 'calls running therefrom, shall control and thereby discard the call for the Sudderth-Johnson land. In Cherry v. Slade, supra, the rule is thus stated: “Whenever it can be proved that there was a line actually run by the surveyor, was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description of the land in the deed or patent.” It was this rule which His Honor intimated he *251 would instruct the jury to apply in locating plaintiffs’ deed. There can be no question that this court has frequently approved and applied it. The last instance in which it was discussed and the cases in which it was applied reviewed, is in a well considered opinion by Mr. Justice Douglas in Elliott v. Jefferson, 133 N. C., 207. We could add nothing to the exhaustive and satisfactory review of the authorities in that case. Quoting the language used in Safret v. Hartman, 50 N. C., 185, he says: “This rule presupposes that the patent or deed is made in pursuance of the survey, and that the' line was marked and the corner that was made in making the survey was adopted and acted upon in making the patent or deed, and therefore permits such line and corner to control the patent or deed, although they are not called for, and do not make a part of it.” The plaintiffs insist that there is no evidence tending to show that at the time of, and with a view to the making of the deed by Berry, or at any other time, the line contended for by defendants was surveyed and marked and corner marked. The only witness introduced by defendants was Mr. Huffham, who says that he surveyed the land and understood the rock to be the corner of S. A. Sud-derth’s land and Hughes’ grant — also known as Johnson tract, he found marks but did not mark line. It is evident that he supposed that he was on Sudderth line. This testimony does not bring the case within the rule which defendants invoke. It is evident from the other testimony that Fin-cannon’s northern boundary was regarded and treated as the Sudderth line. The evidence appears to be conclusive that the post oak is the beginning point in the Sudderth-Johnson line, being the same as the Hughes grant, and that Berry claimed it as his corner. After his death the same line was recognized by his representatives, the deed made by the commissioners in the proceeding for partition, calling for “a post oak and running east with Cannon’s (which we understand to be Fincannon’s) line.” There is no evidence as to *252 how the rock came to be at the point found by Huffham, or how long it had- been there. It is much more probable that a mistake was made in locating the rock than that the parties intended to depart from the old marked Sudderth line. It was in evidence-that Eincannon had been in possession to the Sudderth line for thirty-five years, and that Berry never cut wood south of that line. There is no serious' controversy in respect to the law. We think His Honor gave undue weight and force to Mr. Huffham’s testimony. It does not bring the case within the principle upon which defendant’s contention must rest. The plaintiffs were entitled -to the. instructions for which they prayed. The judgment of nonsuit must be stricken out and a new trial had. It is so ordered. New Trial.