April 13, 1909. The opinion of the Court was delivered by *Page 450 This action was commenced on the 14th day of December, 1906, by the service of summons and complaint.
The plaintiff claims to be the owner of a tract of land in Oconee county containing two hundred acres, more or less, and has had possession for more than twenty years; the plaintiff believes that the defendant entered upon a portion of said tract in 1903 and cut timber; that he has never given permission to defendant to enter upon his land, and defendant committed trespass upon said land, and he has been damaged in the sum of two hundred dollars.
The defendant, answering, denies each and every allegation in the complaint and says that he is seized in fee and possessed of the tract described in the complaint under a deed dated August 23, 1903, from the Seneca Bank, and denies that he has entered upon land of plaintiff, or cut and removed any trees therefrom, or committed any trespass upon any land of the plaintiff.
The cause came on for trial before his Honor, Judge D. E. Hydrick, and a jury, at the November term, 1907, of the Court of Common Pleas for Oconee county.
Upon agreement of counsel the Circuit Judge announced that a verdict as to damages would settle the matter as to the land.
The jury rendered a verdict for plaintiff for eighty dollars. Defendant now appeals upon numerous grounds. Let the exceptions be reported.
The appellant in his argument discusses the exceptions under the heads: 1. Error in the admission of parol testimony, for the purpose of changing, varying or contradicting the deed. 2. Error in charge. 3. Error in refusing new trial. We will now consider these questions and the exceptions relating thereto.
The plaintiff sought to introduce testimony to show that it was agreed between Mrs. Holden, the original grantor, and L.F. Moore, her grantee, that the dividing line between *Page 451 the said grantor and grantee should be from a rock on the bank of the Keowee river, at the mouth of the second drain branch, running to a red oak tree, thence to a poplar tree, thence southwest to the original line, thence to the beginning. Whereas, defendant's deed requires that the line should commence on a rock on the Keowee river, at the mouth of the second drain branch, running west 19 chains, thence southwest to the original line, containing one hundred acres, more or less.
Now, the plaintiff insisted that it was competent for him to show by parol testimony a dividing line, and he seeks by the different persons who held the title to show that such was the dividing line agreed upon by all the parties; the defendant seeks to restrict the line to the language of the deed. The serious question, therefore, is: Shall this agreed line be the boundary between the parties?
By all the authorities it seems to us that the plaintiff should not have been allowed to introduce testimony showing the dividing line, and the defendant insists that, as was required in Owen v. Henderson, 58 Am. St. Rep., 17, you can not modify a deed by parol evidence of the understanding of the parties, or show by a prior conveyance that such parol testimony was admissible; also, in Wynne v. Alexander, 47 Am. Dec., 326, "Parol evidence to prove the true boundary is a line of marked trees not mentioned in the deed and varying from the written course and distance, is inadmissible;" also, in Hamilton v. Cawood, 1 Am. Dec., 378, "Where a conveyance describes land by course and distance, without any natural boundary, the party in locating his land must be confined to courses and distances, and can not explain by parol proof what land was intended to be conveyed."
In Pack v. Thomas, 51 Am. Dec., 135, it is held: "The rule as to varying written instruments by parol evidence is: That where the law requires the written instrument, or where parties adopt that mode of contracting, it is a matter *Page 452 of principle and policy to prevent inferior evidence from being used, either as a substitute for or an alteration of the written contract. The operation of the instrument can not be varied by showing that a different intention existed at the time it was made. Its legal effect must be preserved, and all contemporaneous expressions or circumstances which tend to vary it must be excluded, unless established by proof of the same character."
In 4 A. E. Enc. L., 795, it is stated: "The intention of the parties must be ascertained from the instrument itself, and where it is clearly expressed therein, outside evidence will not be admitted to frustrate it or to alter the terms of the description. Parol evidence is only to be resorted to to show the circumstances under which the deed was made, to define technical terms, or to explain latent ambiguties." In the same volume, at page 847, it is said: "The general rule is that parol evidence is not admissible to vary the description of a boundary in a deed." In Hogins v.Boggs, 34 Pac. Rep., 653, it is held: "Where a deed conveys a certain number of feet along the street, beginning at a certain point, only that number of feet passed by the deed, and evidence that the grantor measured more than that number of feet is incompetent to show that more passed by the deed than the number of feet stated in it."
Our own cases are to the same effect; as is said in Martin v. Simpson, 1 Harper, 454: "The defendant, Simpson, having produced a regular chain of title, derived from an older grant than that of the plaintiff, Martin, was entitled to a verdict; but in what manner his survey ought to have been closed was the question." On appeal the instructions of the Circuit Court was held to be erroneous. The opinion of the Court was delivered by Mr. Justice Huger, who said: "It is important to the quiet enjoyment of landed property that the rules by which it should be located should be simple and few. If a case can, therefore, be as well decided by an already well known and established rule, it is better to be *Page 453 satisfied with it than to make a new one, or resort to another not so well known. It has already been well settled that the courses and distances must govern unless controlled by artificial boundaries or natural objects."
In Johnson v. McMillan, 1 Strob., 143, it is held: "The great principle which runs through all rules of location is that where you can not give effect to every part of the description, that which is more fixed and certain shall prevail over that which is less so. The rule that natural or artificial boundaries will control distances or courses authorizes no other departure from the course and distance than such as is necessary to effectuate the apparent intention of the grantor."
Chief Justice O'Neall, in Senterfeit v. Reynolds, 3 Rich., 129, says: "There is no doubt that extrinsic evidence may be received to distinguish the subject of a devise, when from the words used there is such a description given as can by parol be rendered certain. But this does not intend that the grantor and grantee shall be allowed to give construction to the words used * * * but his declarations that he intended to convey to such a line, when his deed would not warrant such a construction, are plainly inadmissible, on the ground that parol can not contradict a written instrument."
Mr. Greenleaf on Evidence, at section 277, says: "It is a general rule of evidence, long since established and now well settled, that parol testimony can not be introduced to vary, add to or alter a written instrument which in itself is plain and free from doubt. The parties themselves, having reduced their contract to writing, are supposed to have done so in part at least, with a view to exclude everything else but the writing itself in determining their contract, which writing must be interpreted by the Court according to well established rules not necessary to be here considered. The writing, however, being the act and instrument of the parties, finally and solemnly agreed upon, no other *Page 454 words than those found therein can be added to it or substituted in its stead by oral testimony. Nor can testimony of a previous colloquim or of conversation or declaration, at the time when completed or afterwards, be offered to explain."
As is said in Starkie on Evidence, 648: "So we think it is error on the part of the Circuit Judge in declaring null and void the solemn agreement, under seal of the defendant, Evans, on the ground that there was a stipulation between the parties to the agreement not embraced within the terms of the writing itself. The language of the instrument is unambiguous, free from doubt, and it was error to permit parol testimony which would tend to enlarge, vary to contradict its terms."
The deed of Jane Holden to L.F. Moore, on 2d day of February, 1882, in plain and unambiguous terms describes the dividing line between the parties of the tract of land of the estate of Isaac Holden, deceased. It makes no difference that the parties to the deed sought by conversation or act itself to lay down a rule other than that expressed in the deed as the dividing line; it was enough that they agreed and embodied in their deed such dividing line. Having so made their deed, it was not in their power by parol testimony to vary, add to or modify the same. There is no ambiguity in that deed; there was no necessity to show what was meant by the language used. It was error, therefore, on the part of the Circuit Judge to admit any parol testimony to vary, alter or modify the terms of the deed. While the course "southwest" called for in the deed without stating degrees is unusual, and possibly might not have been intended to mean an exact course, yet "southwest means a course equally diverging from south and west, or south 45 degrees west;" and when used in a deed a different meaning can not be given to it by parol testimony.
The exceptions relating to this question are sustained. *Page 455
The Circuit Judge charged the jury: "If, when this deed was made, these people did nothing more than to make that contract, and if since that time the line has been established by mutual consent of the parties, then it is your duty to find for the defendants; but if, at the time the deed was made, they went out and marked out the line upon the ground which was called for in that deed throughout, and they agreed that should be the line, — that is, if both of them agreed to it, the grantor and grantee in that deed, — then they are bound by it. If they didn't do that at the time that deed was made, as a part of the contract which they entered into, then neither one of them could afterwards fix that line without the consent of the other, but would be bound to go by the courses and distances called for in the deed."
The defendant insists that the charge of the Circuit Judge was in accordance with the following language used inWright v. Willoughby, 79 S.C. 442, 60 S.E., 971: "While this was the true construction of the deed, the evidence as to location of lines by the surveyors, under any agreement or understanding of the parties, was competent to show settlement of any dispute about the line by the adoption of an agreed line different from that which we have shown Braveboy or the other plaintiff was entitled to insist on under the terms of the deed." There can be no doubt that an agreement acquiesced in by the parties fixing a disputed line is binding; but this principle does not apply here, because, even according to the testimony offered by the plaintiff, at the time the alleged agreed line was laid off, the deed had not been made, and there was not and could not have been any dispute about the boundaries; on the contrary, conceding the line to have run as testified by plaintiff's witnesses, the failure to make the lines so actually run correspond with the courses and distances given in the deed was only an error, and in case of such variance, as already shown, the written conveyance must prevail. *Page 456
3. Inasmuch as the Circuit Judge refused to grant a new trial for the correction of the errors made by him, he was in error. The exceptions relating to this question are sustained.
It is the judgment of this Court that the judgment of the Circuit Court be reversed and a new trial had.
April 13, 1909.
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