Williams v. . Kivett

Smith, C. J. The plaintiffs’ claim title to the land in dispute under a grant from the state to James Campbell for four hundred acres, issued on the 14th day of May, 1800, and thence by successive mesne conveyances to themselves. The land is described in the grant as “adjoining the river and James Campbell’s survey, Alexander Campbell and Wm. Crawford’s, beginning on Little river batik, below his bridge on said river, thence south 35° east 187 chains; thence south 55° west 52 chains; thence north 35° west 64 chains to a stake; thence with his .own 300 acre survey north 55° east 42 chains to the third corner of said survey; thence with his other line north 35° west 77 chains to the corner of a 50 acre survey, patented by Walter Gibson, thence north 45° west 48 chains to a stake on Little river bank above his bridge; thence down the meanders of the river to the beginning.” *112 In order to locate the grant, the plaintiffs proposed to show that a pine stump, ninety yards below Campbell’s bridge on the river bank, represented by A on the plat, was *113 the beginning of the boundary and bad been pointed out as' such by old persons. Tbe evidence was excluded on the ground that the description of the corner in the grant was too indefinite to admit of location by parol. The plaintiffs further offered to show by similar testimony, an old marked corner at B, the termination of the-first line, and was refused because there was no natural object at that point called for in the grant, and to be identified as such. The plaintiffs then insisted that upon a proper construction of the descriptive words of the grant, the beginning-was fixed at and immediately below the bridge and thence-the lines were to be run by course and distance until the ■ river was reached, and down it to the first station. The-court not concurring in this interpretation of the deed, refused to instruct the jury that such was its legal effect;. Starting from either point and running according to its ■ calls, the land in dispute is within the plaintiffs’ boundaries.. There were other exceptions to rulings made during the trial which according to the view we have taken are not. necessary to be considered. The beginning point is on Little river bank and below the bridge which crosses it, and if capable of location must be fixed by competent parol testimony as to its position, or:must be below and at the bridge itself. This evidence was offered and rejected, not because of an inherent defect or any objection to the source from which it comes, but for the assigned reason that no evidence can aid the vagueness and. uncertainty of the descriptive words of the grant. Hence it must be assumed that the witnesses were old persons, disinterested and now dead, and were competent to testify, if.' the testimony itself was proper to be heard. No enquiry is-made as to their competency, and the exclusion of the evi- ■ dence rendered the enquiry wholly immaterial. The question presented by the plaintiffs’ exception is as to the cor?- *114 rectness of the ruling of the court in refusing to receive any evidence of the true locality of the beginning of the boundary “ on the river bank ” and “ below the bridge,” and it cannot here be defended on the ground that it does not appear that the witnesses are dead and were not interested in the subject matter of the controversy. This rests upon the established rule that this court on appeal will only consider such exceptions as ought to have been made and were made in the court below. But the point is decided in Bridgers v. Bridgers, 69 N. C., 451. A witness, a justice of the peace, before whom a warrant has been tried, was asked if its subject matter was within his jurisdiction, and the objection was interposed that the evidence was secondary and the original should be produced. In delivering the opinion, Reade, J., uses this language: “ He (His Honor) certainly ought not to have rejected it (the evidence) if it was not objected to by the defendant. Nor ought he to have rejected it although objected to by the defendant unless the objection was put upon proper ground. This is based upon the well established practice to consider only such exceptions as are taken in the court below and are brought up by the appeal for revision. The point then is as to the competency of any evidence to ascertain and fix the beginning of the boundary lines, and in our opinion the ruling of His Honor is erroneous. “ It is settled,” says PearsoN,C. I., “ that a line of marked trees, or a tree marked as a comer although not called for in the grant, or any natural object called for in the grant, which can be identified, and has sufficient certainty to furnish of itself a description in place of the course and distance set out in the grant, will be allowed the effect of contradicting the course and distance so as to make the line longer or shorter ; or even to locate the land north of the beginning instead of south of it.” Addington v. Jones, 7. Jones, 582. And in Safret v. Hartman, 5 Jones, 185, it is held that testimony is receivable to fix a corner though not *115 called for in the grant, which was adopted and acted on in making the grant. To the same effect is Topping v. Sadler, Ibid., 857. So an unmarked pine called for in the grant in the midst of a pine growth between objects, eight or ten miles apart, was allowed to be pointed out and identified. McDonald v. McCaskill, 8 Jones, 158. These cases cited by the plaintiffs’ counsel sustain the exception and show that the evidence tendered ought to have been submitted to the jury to assist them in finding the place where the survey commenced. The proposition was to show the termini of the first line, and its correspondence with the course and distance called for in the deed. But if the evidence had been properly ruled out, for the reason that it does not fit the description of the thing described, we are not prepared to say the plaintiffs were not entitled to-the instruction as to the force and effect of the words of the deed. The construction derives support from the decision in Becton v. Chestnut, 4 Dev. and Bat., 385. In that ease the land is described in the patent aslying on Neuse river, and bounded as follows: Beginning at a hickory below the mouth of Beaver Dam branch and runs up the pocosin and branch north 71 West 45 poles; thence still along said branch and joining Keiths’ land, north 15 west 98 poles,” &c., “ to a red oak by the river side; thence up the river to the beginning.” In determing the legal import of these words Ruffin, C. J., says: “ We think: it clear that the patent begins at K, or, in other words, on the river and immediately below the mouth of the branch mentioned.” * * * “ The last line but one goes to a red oak by the river side, and thence up the river to the beginning. These termini, independent of the calls for the branch on the first and second lines, clearly fix the beginning of the survey on the river, and consequently by the admission of the plaintiff himself, the survey made from that point would not include the land elaimed by the defendant.” *116 But we put our decision upon the ground that it is competent, by proper and sufficient testimony, to ascertain the position of the starting point of the survey on the river and below the bridge, and this is not prohibited by the absence of a call for any natural object at that point, nor by any indefiniteness in the description contained in the grant. As this disposes of the appeal, and the same exceptions may not be presented on another trial, it is unnecessary to consider the others. There is error, and a venire de novo is awarded. Let this be certified. Error. Venire de novo.