Baxter v. . Wilson

Asi-ie, J. (after stating the facts). After the verdict was rendered, the defendant moved for a new trial, on the ground that one of the jurors was related to the plaintiff. There was no error in the refusal of the Court to allow the motion. A challenge to a juror must be made in “apt time.” A challenge made after the jury is empaneled, is not in apt time, and especially so after verdict, and it is a matter of discretion with the Judge whether he will grant a new trial. State v. Perkins, 66 N. C., 126; State v. Davis, 80 N. C., 412. The main question in controversy between the parties, is whether the dividing line between their lands, is the line H, M, or the line E, F, G. The plaiutiff insists that the true line between them is E, F, G, because that was the line actually run when the land was divided, and the defendant contends that N. M. must be taken to be the line, because the call from H., as claimed by the plaintiff, is with the run of the creek, 26 chains, and the creek being a natural boundary, the line must follow its course and terminate at the end of the distance. As a general rule, the position contended for by the defendant is correct. It has been so held by several decisions in this State, notably in Hartsfield v. Westbrook, 1 Hay., 258; Sandifer v. Foster, Ibid., 236; McPhaul v. Gilchrist, 7 Ired., 169. But this is not an inflexible rule. It has its exceptions. For instance, when there has been a practical location of the land, as when it can be proved that there was a line actually run and marked, and a corner made, such a boundary will be upheld, notwithstanding a mistaken description in the deed. Cherry v. Slade, 3 Mur., 82. *144 The construction has been adopted by our Court, to carry out the intentions of the parties, when it is clearly made to appear; and to effect that object, course or distance will be disregarded, if the means of correcting the mistake be furnished by a more certain description in the same deed, and especially will it be so, when some monument is erected contemporaneously with the execution of the deed. Campbell v. McArthur, 2 Hawks, 33; Cooper v. White, 1 Jones, 389; Spruill v. Davenport, Busb., 134; Reed v. Schenck, 2 Dev., 415. So it has been held, when the call in a deed for a line, running with the river, though according to the general rule, it must pursue the course of the stream, yet that such a call might be controlled by other calls, as for a line of marked trees, or a visible and permanent course, and a construction given to the words with the river, as equivalent to up the river, but by no call less certain can it be controlled. Rogers v. Mabe, 4 Dev., 180. In Indiana, it has been held, in a controversy involving the location of a boundary line, fixed by commissioners of partition, that monuments fixed at the time, and mentioned in the report, will control distances, and that in such a case parol evidence is admissible to explain an ambiguity arising from that omission “to describe the monument at one corner.” Hodge v. Sims, 29 Ind., 574. And now let us apply the principles announced in these decisions to our case. The plaintiff and defendant, if the witness Eerebee is to be believed, claim the land in dispute, and that lying adjacent thereto, under the heirs of one Tully Bell, who had the land, being a large tract, cut up into smaller parcels, with the view to enhance the price at a contemplated sale. To that end, they employed him as surveyor, to divide the land into smaller tracts before a sale. He stated that he made a survey of the whole tract, and after establishing the lines on the north side of the main road, the ditch running from E on the main road was selected as the division line on the south side of the road, and the line H G E, was run from the corner at H to G, the distance of 26 chains, and he established a corner at G upon a tree, *145 which he marked as a corner. He states that the courses and distances were taken from his field notes, and that the line E, F, G, is the actual division line, run and established by him-at the time. And the land was sold according to the courses and distances reported by him. The laud to the west of the line, was bought at the sale by one Sander! in, and sold to the plaintiff; and we take it that the defendant Wilson was the purchaser of the land on the east of the line. They purchased with reference to this dividing line made by the surveyor Ferebee at the time, and according to the authorities above cited, that must he taken as the true line of division, notwithstanding any uncertainty in the calls of courses and distances, and this is especially so, as in this case the subsequent calls in the original survey, have a more certain description than the line running with the creek, and must therefore control that line. For instance, the lines called for from the end of the '26 chains on the creek 12° east 44 chains, was run actually to the ditch at F and along the ditch to E on the road, which is a natural object, and was not only selected by the heirs of Bell, under whom both the plaintiff and the defendant claimed, but was admitted by Wilson to be a part of the disputed line. It is true, he contended that the ditch should be followed to its ■ beginning, and thence to the creek, but where was the beginning, and how that might vary the line of division, he did not say, and it is not made to appear. The next call in the plaintiff’s deed, corresponding with the Ferebee survey, is to the main road, another natural object, then down the road 15 chains, and thence by courses and distances around to the beginning. In looking at the accompanying plat, it will be seen that if N, M, is taken as the true dividing line, the call of 15 chains down the road from the point where the line N, M, strikes it, would terminate about E, and pursuing the calls from that point, it would throw the termination of the distance in the last call 15 chains, beyond the beginning at B# But if the line E, F, G, is taken as the true line, then all the calls in the plaintiff’s deed comport with those made by the survey of Ferebee. *146 And, moreover, the plaintiff's deed running with the boundary established by the Ferebee survey, calls for one hundred and eighty-nine acres, but if the line N, M, should be taken as the line of division, it would lessen the number of acres by nearly one half. “ Ordinarily the quantity of acres contained in a deed constitutes no part of the description, especially when there are specifications and localities given by which the land may be located, but in doubtful cases it may have weight, as a circumstance in aid of the description, and in some cases, in the absence of other definite descriptions, may have a controlling effect.” Harrell v. Butler, 92 N. C., 20, and cases there cited ; 1 Greenleaf on Evidence, §301, and cases cited in note to same effect. After a careful consideration of the question presented by the record, our conclusion is, there is no error. The judgment of the Superior Court is therefore affirmed, and as the judgment below was against all three of the defendants, two of whom did not appeal, the case must be remanded to the Superior Court, that the judgment may be enforced by process from that Court. No error. Affirmed.