Byrd v. Carolina Spruce Co.

AlleN, J., after stating tbe ease: Tbe report of tbe former action between R. B. Johnson,, under whom tbe defendant claims, and G. D. Ray, under whom tbe plaintiffs claim, contained in Johnson v. Bay,< 72 N. C., 273, indicates very clearly that tbe location of tbe line now in controversy was then established by judgment in favor of tbe contention of tbe plaintiffs in this action, but we will not rest our decision upon this ground, as tbe issues and judgment are not before us, and .if no weight is given to- tbe proceedings in tbe former action, either as an estoppel or as a judicial construction, determining tbe location of tbe line as matter of law, the evidence is fully sufficient to sustain tbe verdict. and the line has been located correctly and in accordance with law. It is probable there would be no controversy between tbe parties but for tbe course in tbe disputed call from Jumping Off Place being *433 “southwesterly,” which, by an approximately straight line, would go to Grassy Knob, leaving the land in controversy outside of the plaintiffs’ boundaries, while the line as contended for by the plaintiffs runs, first; a southeasterly course to Celo, and then westwardly to Gras.sy Knob; but while the course given in a description is important and frequently controlling, as was said by Battle, J., in Cooper v. White, 46 N. C., 390: “It is now well settled that a mistake in the course or distance contained in the calls of a deed shall not be permitted to disappoint the intent of the parties, if that intent appear, and if the means of correcting the mistake are furnished, either by a more certain description in the same deed or by reference to another deed containing a more certain descrip-, tion. Campbell v. McArthur, 9 N. C., 33; Ritter v. Barrett, 20 N. C., 266.” The principle was first declared in Person v. Rountree, 2 N. C., 378, and has been followed in numerous cases, including Houser v. Belton, 32 N. C., 358; Mizell v. Simmons, 79 N. C., 191; Powers v. Baker, 152 N. C., 719. In Houser v. Belton, supra, the description in the deed under which the plaintiff claimed was “Beginning at a white oak on the east side of Loveris Creeh; thence south 55 chains to a post oak; thence east 100 chains to a white oak; thence north 55 chains to a white oak; thence to the beginning, containing 550 acres,” and the plaintiff was permitted to prove that the white oak was on the west side of the creek, the court saying, “The question is simply whether a party is at liberty to show, by the kind of proof offered in this case, that there was a mistake in using the word ‘east,’ instead of the word ‘west.’ It is not a question between a marked tree and a natural boundary, but between a marked tree and a mere word. When a creek is called for as a boundary, it will control course and distance, and even marked lines and corners, because it is permanent and fixed, and a thing about which there, can be no mistake. It is a natural boundary. Marked lines and comers control course and distance, because a mistake' is less apt to be committed in reference to the former than the latter. Indeed, the latter is considered as the most uncertain kind of description, for it is very easy to make a mistake in setting down the course and distance, when transcribing from the field book or copying from the grant or some prior deed,’ or a mistake may occur in making the survey, by losing a stick, as to distance, or making a wrong entry as to course. For these reasons, when there is a discrepancy between course and distance and the other descriptions, the former is made to give way. All the reasons foi making course give way to a natural boundary, or to the lines of another tract, or to marked lines and corners, apply with full force to the present question. The deed describes the beginning corner as being on the *434 east side o£ tbe creek; the proof shows the corner tree to be on the west side. The marked tree must control, because there is less liability to mistake about it than in the use of one word for another, and the discrepancy shows there must be a mistake in the one or the other.” If, then, the course given from Jumping Off Place “southwesterly” is not determinative, and if, notwithstanding this call, it was permissible for the plaintiffs to prove the true location of the line, although along a different course, is the evidence offered for that purpose competent ? The evidence of general reputation as to the location of the line meets all the requirements of the law, which are stated in Sullivan v. Blount, 165 N. C., 11, to be that “(1) The reputation had its origin at a time comparatively remote, and (2) existed before the controversy, and (3) attached itself to some monument of boundary, or natural object, or is supported by evidence of occupation and acquiescence tending to give the land some fixed or definite location. Tate v. Southard, 8 N. C., 45; Dobson v. Finley, 53 N. C., 496; Yow v. Hamilton, 136 N. C., 357; Hemphill v. Hemphill, 138 N. C., 504; Lamb v. Copeland, 158 N. C., 138.” ' Some of the evidence showed the reputation to have existed for forty years, and when there was no controversy, and, if so, evidence of reputation for a shorter period was competent in corroboration (Ricks v. Woodard, 159 N. C., 648), and the reputation attached itself to a natural object, the top of a l'idge, along a line a part of which was marked, and it was shown that R. B. Johnson, under whom the defendant claims, held possession up to this line. The declarations of R. B. Johnson and of Harold Johnson were also properly admitted because made before they had parted with their title and against interest. Guy v. Hall, 7 N. C., 150; Satterwhite v. Hicks, 44 N. C., 107; Headen v. Womack, 88 N. C., 468; MaGee v. Blankenship, 95 N. C., 563; Ellis v. Harris, 106 N. C., 395; Shaffer v. Gaynor, 117 N. C., 15. The Cpurt said, in the first of these cases: “The declarations or confessions of the person making them are evidence against such person and all claiming under him by a subsequent title, and for the plainest reasons. Truth is the object of all trials, and a person interested to declare the contrary is not supposed to make a statement less favorable to himself than the truth will warrant; at least there is no danger of overleaping the bounds of truth as against the party making the declarations. It is, therefore, evidence against him, and his subsequent purchaser stands in his situation; for he cannot better his title by transferring it to another, or thereby affect the rights of those who have an interest in his confessions”; and, in the last, “The declarations of parties to suits are always admissible evidence against, though not for, them. *435 McCrainey v. Clark, 4 N. C., 658 (698) ; McDonald v. Carson, 95 N. C., 377; Gidney v. Moore, 86 N. C., 484; Avent v. Arrington, 105 N. C., 377. If tbe declarations of Carrow would have been competent against bim as plaintiff in this action, it would be competent under the general rule applicable to all classes of cases against the plaintiff, who claims through him. May v. Gentry, 20 N. C., 249; Woodley v. Hassell, 94 N. C., 157; Braswell v. Gay, 75 N. C., 515.” The motion to remove the action for trial to another county in the interest of justice was addressed to the discretion of the court and is not reviewable. Garrett v. Bear, 144 N. C., 24. Nor do we find any error in the refusal of his Honor to stop counsel in their argument to the jury. A similar question was raised and ruled against the contention of the defendant in Horah v. Knox, 87 N. C., .487; hut if the objection had been otherwise tenable the effect of the argument was practically destroyed by the subsequent instruction to the jury to answer the fifth issue in favor of the defendant. At the time the argument was made the proceedings in the former action were before the jury, and counsel were doing no more than exercising the right to argue the law and the fact to the jury. "We have considered the appeal without reference to the former action, but the plaintiffs may well contend that the line in controversy has been construed as matter of law to run with the ridge, because Pearson, Q. J., said on the former appeal in reference to the same line: “His Honor might also have charged that the general description, ‘so as to exclude (in the original opinion the word is included) the headwaters of Bowlin’s Creek,’ made' it necessary to follow the ridge.” Johnson v. Ray, 72 N. C., 273. Three calls in the plaintiff’s deed before the line reached Jumping Off Place were with the top of the ridge, and the line in dispute runs “along the various windings.” Windings of what? Naturally windings of the ridge and not a straight line. We have carefully considered the record, and find No error.