Lance v. . Rumbough

Walker, J., after stating the case: Tbe principal question in this case relates to the location of the land which was conveyed by Rumbough to the feme plaintiff. Tbe defendant contended that be did not sell to the plaintiff any land south or southeast of the red or Johnson line, and that the third call of bis deed should stop at that line, or, if the call is extended to G (a chestnut oak in the Johnson line on the ridge), the next call should be from, that point to the red or Johnson line, as shown on the map, and thence with that line passing 3 and crossing Spring Creek to the road. There was no evidence that the red line bad been established or was known as the Johnson line at the time the deed was made to the plaintiff. Tbe location of that line was then in dispute and a suit was pending for the purpose of establishing it. Besides, there was evidence that Rumbough bad admitted that the chestnut oak at G was in the Johnson line, and there was also evidence that a survey of the land be intended to convey to the plaintiff bad been made, at the request of Rum-bough, by a surveyor, and the lines and corners marked, and that the deed was made in accordance with the survey. Tbe court correctly instructed the jury as to the different phases of the ease presented by the testimony. Tbe charge with reference to the location of the corners and lines by the survey actually made for the purpose of conveying the land to the plaintiff, and describing in the deed therefor its boundaries, is well supported by numerous decisions of this *25 Court. Tbe survey made under such circumstances is considered as a practical location of the land by'the parties. Cherry v. Slade, 7 N. C., 82; Safret v. Hartman, 50 N. C., 185; Baxter v. Wilson, 95 N. C., 137; Elliott v. Jefferson, 133 N. C., 207; Fincannon v. Sudderth, 140 N. C., 246; Lumber Co. v. Ervin and Mitchell v. Welborn, at tbis term. Tbe general rule undoubtedly is, tbat the line or corner of another tract of land wbicb is sufficiently established will control course and distance, but it is not a rule without an exception, and the principle we have just stated constitutes an exception to it. Baxter v. Wilson, supra. Tbe instruction wbicb the defendant asked the court to give to the jury, tbat the third call should stop at the red line, assumed tbat it was the Johnson line, when there was no evidence showing tbat it bad, at the time the deed was made, been established. Tbe evidence tended to show tbat Eumbough, when be executed the deed, did not so regard it. Tbe court therefore properly charged the jury to consider the evidence as to the true location of the Johnson line at tbat time, consisting in part of the declaration of Eumbough himself, and especially to consider the evidence as to the practical location by the parties of the Johnson line and the boundaries of the'land intended to be conveyed. Tbe charge of the court stated clearly and fully the law arising upon the evidence. It embraced all instructions to wbicb the defendants were entitled. The issues were sufficient to present all matters in controversy and to determine the rights of the parties, and the court therefore properly refused to submit those tendered by the defendant. Hatcher v. Dabbs, 133 N. C., 239; Ray v. Long, 132 N. C., 891; Patterson v. Mills, 121 N. C., 251. As no definite sum was admitted or shown to be due by the plaintiff to the defendant, and as the correct amount due could not be ascertained until the other questions were determined, it was not necessary for the plaintiff to make any tender of the amount due on the notes. Vaughn P. Gooch, 92 N. C., 610. Tbe rights of the defendant in tbis respect are fully protected by the judgment of the court. We have carefully examined the other exceptions, and find no error in the rulings of the court to which they were taken. No Error.