Tucker v. . Satterthwaite

Montgomery, J. This case was before ns at September Term, 1898 (123 N. C., 511), and it received a most careful consideration on the part of the Court, and at the conclusion, while the judgment of the Court below was affirmed, there was a division of the Court, two members dissenting. After another argument, with full briefs on both sides, upon the rehearing we have reconsidered the proposition of law before us at that time, with the earnest purpose to rectify any mistake or error under which we may have then labored, if such error should be pointed out to us, and our convictions and opinions are not changed. It will be seen from a reading of the opinion of the Court heretofore delivered, and from the dissenting opinion already referred to, that the sole question in: the case depends upon the location of the northern boundary line of the Smith grdnt. The' admissions of counsel on both sides, their arguments and their briefs are an acknowledgment that that was the sol© point in the case. It was agreed on all hands that the starting point of the Smith grant was represented by the letter A oni the map. The stations B, O, D, E, E, were all admitted and acknowledged stations. The trouble begins from the call from E station. *959 Tbat call is in these words (from F), “west 290 poles into John Jordan’s line.” 290 poles west from E station does not reach John Jordan’s line, but 299 poles will reach John Jordan’s line, and to that line the call must go. Bradford v. Hill, 2 N. C., 30; Cherry v. Slade, 7 N. C., 82; Mortgage Co. v. Long, 113 N. C., 123. The defendant contends, however, that the northern boundary line of the Smith grant was through mistake inserted in the grant as running west 290 poles, and that it ought to be changed so as to run north 74 west 420 poles, and that there was evidence to that effect which his Honor should have submitted to the jury. The only evidence in the case on that point was that of a surveyor, Taylor, that he had seen at the end of thei line, contended for by the defendant, two old trees marked as pointers. That evidence was not sufficient to go to' the jury on the point. ‘ If a line of marked trees, marked at the time of the original survey of the Smith grant, had been found along the line contended for by the defendant, although not called for in the grant, that would have been sufficient evidence to go to the jury to have the mistake in the course of the grant corrected and explained; or, if there had been evidence that the trees marked at the end of the line contended for by the defendant showed signs of having been marked, contemporaneously with the original survey, and had been recognized as a corner or point of the Smith grant, such evidence would have been competent for the same purpose. Graybeal v. Powers, 76 N. C., 66; Reed v. Schenck, 14 N. C., 65; Cherry v. Slade, supra; Baxter v. Wilson, 95 N. C., 137; Davidson v. Schuler, 119 N. C., 582. If there had been a natural object, known or admitted, at the end of the line from station E on the map to the Jordan line, then no parol evidence could have changed that line. The defendant’s counsel again insists that the line which *960 be contends for, from station E to tbs Jordán" line, can be ■proved to be tbe true line by a reversal of tbe Smith grant from tbe acknowledged starting point A northward. Such a reversal can not be made in this case for tbe reasons, first, that from station A no surveyor could bit the next point northward, for no such point has been identified or admitted, and tbe call from tbe next to tbe last station, in tbe natural order of tbe survey, “is to the beginning” without any intimation of course or distance; and second, because, as we have seen, there is no evidence in tbe case fit to be submitted to tbe jury tending to show any uncertainty or mistake in the line from F west 290 poles to tbe Jordan line. It is not essential to tbe decision of this case, but tbe writer of this opinion thinks that a prior or previous line, like tbe one in this case from F west 290 poles to the Jordan line, could be under proper evidence, altered and controlled by a line running in reversal from A northward, if it bad been shown by competent proof that the call from F west 290 poles to tbe Jordan line was an uncertain line, and was made through mistake, and that tbe reverse line would show tbe true line from F to tbe Jordan line with greater certainty than 'the one as it now stands in the grant. Harry v. Graham, 18 N. C., 76; Norwood v. Crawford, 114 N. C., 513; Graybeal v. Powers, supra. Petition dismissed. Clark and Douglas, JJ., dissent.