S. S. M. Realty Co. v. Boren

Stacy, O. J. The plaintiff prevailed in the court below on the contention that the calls in its deed, as shown by an actual survey, cover the wall and stairway in question. Reed v. Schenck, 13 N. C., 415. The law is, however, that when tenants in common, with a view to executing divisional deeds, go upon the premises and establish a dividing line, and deeds are thereupon made, intending to divide the land according to the division agreed upon, and they thereafter deal with the land with reference to said line, the boundary thus established will estop them and their privies from claiming a different line as being in accordance with the calls in their deeds. Dudley v. Jeffress, 178 N. C., 111, 100 S. E., 253; Clarke v. Aldridge, 162 N. C., 326, 78 S. E., 216. “It is settled beyond controversy in this State that a line surveyed and marked out and agreed upon by the parties at the time of the execution “of the deed will control the course and distance set out in the instrument.” Millikin v. Sessoms, 173 N. C., 723, 92 S. E., 359. Speaking to the subject in Cox v. McGowan, 116 N. C., 131, 21 S. E., 108, Avery, J., delivering the opinion of the Court, said: *448 “All rules adopted for the construction of deeds tend towards one objective point. They embody what the law, founded on reason and experience, declares to be the best means of arriving at the intention of the parties. 3 Washburn, 428 and 429. The intention, of course, relates to the time when the deed is delivered, hence course and distance, or even what is considered in law a more certain or controlling call, must yield to evidence, if believed, that the parties at the time of the execution of a deed actually ran and located a different line from that called for, such evidence being admissible to show the description of the line to be a mistake. Buckner v. Anderson, 111 N. C., 572; Cherry v. Slade, 7 N. C., 82; Baxter v. Wilson, 95 N. C., 137; Stanly v. Green, 12 Cal., 148; 3 Washburn, 435. “In support of the position stated, we find that Tiedman, in his exhaustive work on Real Property, sec. 828, lays down the rule as follows : 'Contemporánea expositio est optima et fortissima in lege. In construing deeds, courts endeavor to place themselves in the position of the parties at the time of the conveyance, in order to ascertain what is intended to be conveyed. Eor in describing the property parties are presumed to refer to its condition at that time, and the meaning of their terms of expression can only be properly understood by a knowledge of their position and that of the property conveyed.’ The familiar rule that the course of a stream called for as a boundary is to be determined by showing the location at the date of the conveyance is referred to as one illustration of the practical operation of the rule.” Under the principle stated, which is well established in this jurisdiction, it would seem that the defendants were entitled to the special instruction, duly requested in apt time. Hew trial.