BROWN, J., dissenting; CLARK, C. J., concurring in the dissenting opinion.
PLAINTIFFS' APPEAL.
After stating the case: The right of the plaintiffs to recover depends upon the true location of the first line of Grant No. 3290, that is, as to land described in the grant which is not covered by any of the inside patents. The question as to the effect of the latter upon the rights and interests of the parties is presented by the defendant's appeal, and need not be considered here.
(87) The contention of the plaintiffs is that the first line of that grant should be from A to B, as shown on the court map, while the defendants say that it should be from A to D.
We are satisfied that we cannot adopt the plaintiff's view, unless we hold that what was done by Sawyer and Kelly, when they made the survey in 1871, amounted to a practical location of the first line within the rule laid down in Cherry v. Slade, 7 N.C. 82, that where it can be proved that there was a line actually run by the surveyor, which was marked and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken description of the land in the patent or deed. But the insuperable obstacle to the application of this rule is that the line must have been "marked and a corner made," and it must also appear that this was done for the purpose of making it a line of the tract of land or a call in the deed, for it is said in Safret v.Hartman, 30 N.C. 185, after quoting from Cherry v. Slade, as above: "This rule presupposes that the patent or deed is made in pursuance of the survey, and that the line was marked and the corner that was made in making the survey was adopted and acted upon in making the patent or deed, and therefore permits such line and corner to control the patent or deed, although they are not called for and do not make a part of it. Parol evidence being let in for the purpose of controlling the patent or deed by establishing a line and corner not called for, as a matter of course, it is also let in for the purpose of showing that such line and corner were not adopted and acted on in making the patent or deed, because the rule presupposes this to be the fact." It may also be added at this place that the rule was adopted, against the strong but ineffectual protest of the judges long since expressed, for the sole purpose of executing the intention of the parties to
the grant, and not to defeat it, and it was under the stress of some "hard case," where a sense of justice prevailed over the long established and safe rule forbidding a written instrument to be contradicted or varied by parol evidence, that the rule was brought into being. But conceding fully its existence, and that it is too firmly imbedded in the law of boundary to be now disturbed, we are admonished that it should be administered with caution and not carried beyond its well defined limits. Judge Pearson once said that the rule was "a violation of principle" and should not be extended. Safret v. Hartman, supra. We may well say in this case, what was so well said in Elliott v. Jefferson,133 N.C. 207, that the error of the plaintiff lies in a misapprehension of the application of the rule, that in case of a discrepancy a marked line controls the calls in the deed as to course and distance. This rule never applies unless the marked line is so connected with the deed, either by intrinsic or extrinsic evidence, as to create a presumption as to the intent of the grantor. The mere running and marking of a line can never convey the title to land, nor can it take the place of a deed. At best, it can only serve to locate the land conveyed (88) in the deed, and can operate only in aid of the deed. Admitting that a line is run in contemplation of a deed, it does not bind the grantor, as a different contract may be made or the line subsequently changed. As no title can vest except by the execution of a deed, the vital question is the intent of the grantor at the time of such execution. It was also stated in that case that "Wherever a marked line or other natural object is permitted to vary the description called for in the deed, it is always in presumed furtherance of the intent of the grantor in the execution of the deed. In other words, it is to carry out the true intent of the deed, and never in derogation thereof. This principle is clearly recognized in the authorities cited by the plaintiff himself, as will appear from the following extracts: . . . The doctrine thus laid down is in full accord with the principles enunciated and the cases cited in Bowen v. Gaylord, 122 N.C. 816, and is sustained by the general current of authority here and elsewhere. In the construction of all deeds and grants there is one essential object to be kept in view, and that is to ascertain the true intent of the grantor and to give full effect to that intention when not contrary to law. All rules of construction adopted by the courts are simply means to a given end, being those methods of reasoning which experience has taught are best calculated to lead to that intention. Hence, all authorities unite in saying that no rule can be invoked, no matter how correct in its general application, that tends to defeat the intention of the grantor. This doctrine is of such universal acceptance as to require but few citations, more to illustrate its extent than to prove its existence."
So we see that the very foundation of the rule is the presumed intention of the parties to the grant, and the only excuse for it, as it is opposed to the general principle, is that it enables us to ascertain what the intention was in respect of the boundary.
It may be well here to reproduce some of the comments of this Court upon the rule and its application, as what has been thus said is most pertinent to the facts of this case, as found by the able and learned referee and judge. The question as to the extent of the rule and the manner of its application was presented in the oft-cited case of Reed v.Schenck, 13 N.C. 415, where Chief Justice Henderson, with his usual clearness and acumen, thus refers to the rule: "For many years we have in all cases, I believe, except one, adhered to the description contained in the deed, and it is much to be lamented that we do not altogether. The case to which I allude is where the deed describes the land by course and distance only, and old marks are found corresponding in age, as well as can be ascertained, with the date of the deed, and so nearly corresponding with the courses and distances that they may well be supposed to have been made for its boundaries, the (89) marks shall be taken as the termini of the land. This is going as far as prudence permits; for what passes the land not included by the description of the deed, but included by the marked termini?
Not the deed; for the description contained in the deed does not comprehend it. It passes, therefore, either by parol or by a mere presumption. As far as we know, there has been no series of decisions by which the description in the deed is varied by marks, unless they were made for the termini of the land described in the deed, or supposed to be so made, and to which it was intended the deed should refer, or to which it was supposed the deed did refer, or rather supposed that the courses and distances correspond with the marks, and that the same land was described, whether by course and distance in the deed or by the markedtermini." And in Baxter v. Wilson, 95 N.C. 138, Justice Ashe, with equal force and clearness, states the object and defines the limit of the rule. He said: "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,7 N.C. 82. The construction has been adopted by our Court to carry out the intention of the parties when it is clearly made to appear, and to effect that object course and 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," citingCampbell v. McArthur, 9 N.C. 33; Cooper v. White, 46 N.C. 389; Spruill v. Davenport, 44 N.C. 134, and Reed v. Schenck, supra. The rule has received consideration, and its precise limits fixed, in the following cases: Shaffner v. Gaynor, 117 N.C. 16; Fincannon v. Sudderth,140 N.C. 246; Mitchell v. Wellborn, 149 N.C. 347; Lance v.Rumbough, 150 N.C. 19; Land Co. v. Erwin, Ibid., 41; and more recently it has been discussed very fully by Justice Hoke in Clarke v.Alridge, 162 N.C. 326, citing the principal cases which had been decided up to that time, and by Justice Brown in Allison v. Kenion,163 N.C. 582; and they all tend to this general result and agree upon this proposition, that the line thus run and marked, before the deed was executed or contemporaneously with the deed, must have been clearly intended by the parties as one of the lines of the land to be conveyed, and without this intention the mere fact that a line was surveyed or even marked will not bring the case within the operation of the rule, unless the said intention can be clearly inferred from the conduct of the parties in regard thereto, the intention being as essential as the fact that the line was surveyed and a corner made. It has grown into one of the maxims of the law that such construction should be made of the language of a deed or other written instrument as is most agreeable to the intention of the parties. The words are not the principal things to be considered, but the intent and design, which is the (90) chief object to be attained. We cannot alter words or insert others which are not in the instrument, but those that are there should be construed in the way most likely to accord with the intent or meaning of the parties, and we may reject words that are merely insensible. In Smith v. Parkhurst, 2 Atl. Rep., 135, Lord Chief Justice Willes, referring to these principles of construction, said: "Those maxims, my lords, are founded upon the greatest authority — Coke, Plowden, and Lord Chief Justice Hale; and the law commands the astutia — the cunning — of judges in construing words in such a manner as shall best answer the intent. The art of construing words in such a manner as shall destroy the intent may show the ingenuity of, but is very ill becoming, a judge." This idea was never better expressed than in the case of Walsh v. Hill, 38 Cal. 281, 287, by Justice Sanderson: "In the construction of written instruments we have never derived much aid from the technical rules of the books. The only rule of much value is to place ourselves as near as possible in the seats which were occupied by the parties at the time the written instrument was executed, then taking it by its four corners, read it. This is the main object of all constructions. When the intention of the parties can be ascertained, nothing remains but to effectuate that intention." The same rule has frequently been stated by this Court, and applied in the construction of various kinds of written instruments, grants, deeds,
wills, and contracts. Gudger v. White, 141 N.C. 507; Triplett v.Williams, 149 N.C. 394.
When we look at this case in the light of the foregoing authorities, it is manifest that the findings of the referee and judge withdraw the case from the operation of the rule as to the effect of a line being run and marked at the time the grant was made, as they distinctly find, and as clearly and emphatically as language can express such a finding, that B. L. Sawyer and his surveyor, M. L. Kelly, when they made the survey in 1871 and ran along Deep Gap or Forester Ridge, had no intention of marking the line A-B as a line of the tract of land to be thereafter described in the Grant No. 3290. To use the language of the judge: "In respect of the survey made in 1871, for Grant No. 3290, on the B. L. Sawyer entries, the court finds that said survey began at the chestnut oak at `A' and was carried to the point `B' at Thunderhead, the same being the head of Defeat Ridge, retracing the surveytheretofore made in 1867, for the purposes heretofore stated. . . . The court finds that B. L. Sawyer was present upon this survey, and that the intention of Sawyer and the surveyor, upon said survey, was to establish the chestnut oak at A, a corner in the Bryson survey, as the beginning point in said survey, and that the western line of said survey should coincide with the eastern line of the survey of 1867, and that the northwest corner of said last (first) mentioned survey should be identical with the northeast corner of the Bryson survey of 1867." It is then found as a fact that the line from A to B was not (91) actually measured "along said straight line," but along the corner of Deep Gap or Forester Ridge, a corner being marked at the point where the first and second lines of the triangle made upon the Bryson survey of 1817 intersected on the State line at Thunderhead. There are further findings that B. L. Sawyer knew in 1871, when he and Kelly made their survey, that there was "no Bryson line along and up said Deep Gap or Forester Ridge," and he further knew, at said time, that the line of T. D. Bryson ran from a sugar maple at the head of Big Chestnut Ridge, at the point marked D on the official map to the chestnut oak, at the point marked A thereon, and he consequently knew that this was the eastern line of T. D. Bryson's land, that is, from the sugar maple at D, in a southwestwardly direction, to chestnut oak at A, as the one fact is necessarily to be inferred from the other. It appears also that it was Sawyer who set the compass in 1867 on the Bryson survey and sighted to the sugar maple, which he told the surveying party was at the head of Big Chestnut Ridge. He was the marker, and he marked the chestnut oak so as to indicate the direction from which they had come in reaching it and the direction they would go in leaving, the latter being towards the sugar maple on Big Chestnut
Ridge. The marks were three hacks on each side of the tree. Sawyer inquired of T. S. Siler how he could measure the line to the sugar maple without running it, and he was shown how it could be done by a diagram. It is also found that it was the intention that the western line of the Kelly survey of 1871 should coincide with the eastern line of the Bryson survey of 1867, and the northwest corner of the Kelly survey should be identical with the northeast corner of the Bryson survey. The Bryson northeast corner is at the sugar maple, the point marked D on the map. So it is clear that the line up the Big Gap or Forester Ridge was not run and marked for the purpose of making it a line of the grant to be thereafter issued (No. 3290), but, on the contrary, the intention of the parties was in strict accordance with the express words of the grant, that the line A-D should be one of its lines. We are bound by the findings of fact as made by the referee and judge, as it is not our custom to review them under such circumstances. Usry v. Suit, 91 N.C. 406; Wiley v. Logan, 95 N.C. 358;Dunavant v. R. R., 122 N.C. 999; Collins v. Young, 118 N.C. 265; Harrisv. Smith, 144 N.C. 439. The findings of fact are conclusive upon us unless it appears that they were not based upon any evidence, or rested upon improper evidence. Usry v. Suit, supra. There was evidence to sustain the findings in this case.
But plaintiffs contend that, while the call is for the Bryson line, it also extends from A "1,800 poles north to the Tennessee line at the head of Defeat Ridge, and they insist that the line should go to that place, notwithstanding it is also said that it must begin and run with Bryson's line and corner with Bryson's northeast corner; but we do not think that this is the proper meaning of the call. The (92) leading purpose and dominant idea is that this line shall coincide with the Bryson line, and if this part of the call is ignored and the line is extended north to the intersection of the head of Defeat Ridge with the Tennessee line, it would violate the evident intention of the parties, as gathered from the deed, that it should corner at D, where the maple stood, and of course stop there, for it could not corner there very well if that was not to be the end of the line. The clear intention of the parties must prevail, and the line must run with that of Bryson's and stop at D, as a corner of the land. It is plain that the parties mistakenly thought, when they inserted the call for Defeat Ridge in the grant, that the northeast corner of the Bryson land was on the Tennessee line at the head of that ridge, but their purpose was to stop at the corner, wherever it should be, the call for Defeat Ridge being descriptive and not locative. The call is to be construed as if it read, "cornering at Bryson's northeast corner, supposed to be on the Tennessee line, at the head of Defeat Ridge." This is a much more reasonable
interpretation of the grant than if we should defeat the intention to make "Bryson's line" one of the lines, by running the line along Deep Gap or Forester Ridge to Defeat Ridge, eliminating the primary and principal call, and the law does not require that we should do so. Referring to the "third" of the four rules for locating boundaries which are stated in Cherry v. Slade, 7 N.C. 82, Chief Justice Taylor said: "This rule is founded upon the same reasons with the preceding ones, the design of all being to ascertain the location originally made; and, calling for another well known line of another tract, denotes the intention of the party with equal strength to calling for a natural boundary, so long as that line can be proved." The case of Bonaparte v. Carter,106 N.C. 534, is pertinent, for there the call was for a small oak, John Edwards' corner, on the side of the creek. It turned out that the Edwards' corner was 300 yards from the creek, and the Court, byJustice Clark, said: "The side of the creek is not called for as a boundary, but merely as a description of the locality of the beginning point, which is `a small oak, John Edwards' corner.' If that can be identified, an inaccuracy in the description of the locality will be disregarded. What is the beginning point is a matter of law for the court to declare. This he did correctly. Where it is, is for the jury to say; and the court so held. The objection is, in effect, that the court did not hold that though `a small oak, John Edwards' corner,' might be identified, it could not be held to be the beginning corner unless it stood on the bank of the creek. This is not the case where two natural objects, a creek and a marked tree, are both called for, and the question arises which shall govern. The case now presented is where a marked tree is described as located on the side of a creek. Inquiry is, Which shall govern, the tree as actually located, or as described to be located? (93) The failure of the description may make it difficult to satisfy the jury that the tree claimed to be the `small oak, John Edwards' corner,' is such. But if the evidence is sufficient to identify it, the inaccuracy in describing the locality as `on the side of the creek,' when it is 300 yards off, cannot be allowed to vitiate the grant. The exact point has never been decided in this State, but in Murray v.Spencer, 88 N.C. 357, the Court intimates that when a marked tree in the line of another tract is called for, and the marked tree is identified, but is not in the line of the other tract, that the tree will be held the true corner, and the misdescription of it, as being in such other line, will be disregarded. And the point is expressly so held by JudgeStory in Cleveland v. Smith, 2 Story, 278." And the same rule was followed in Fincannon v. Sudderth, 140 N.C. 246. In Murray v. Spencer,88 N.C. 357, where the conflict was between a tree and the line of another tract, both being called for, it was held to be a question for the jury to
determine as to which one was actually adopted. In our case the referee and judge have decided in favor of the line, and it is intimated by Justice Ruffin that if the line was well known and its location certain, the preference should be awarded to it, as between the two objects in the call. Physical monuments are generally preferred to other objects in the call, because they are more durable, and in some respects more reliable; but even they will give way to a more certain and definite call in the grant or deed, especially if the intention is clearly manifested that they should not govern or control in ascertaining the location of the land. It was held in Jamison v. Fopiano, 48 Mo., 194: "Although monuments will generally prevail over other calls in a deed, yet if, taking the whole deed together, they are apparently erroneous, they will be disregarded. And a boundary may be rejected when it is clear that it was inadvertently inserted, and that a tract with different boundaries was intended to be conveyed. In the construction of deeds words are not the principal thing, but the intent and design of the parties; and, therefore, when there are any words in a deed that appear repugnant to the other parts of it, and to the general intention of the parties, they will be rejected. The evident intention here was to convey the whole Lami tract, and the error of the parties in designating a boundary line ought not to defeat that intention," citing Gibson v.Bogy, 28 Mo., 478; 4 Greenleaf's Cruise, 307 and 338, and note;Thatcher v. Howland, 2 Metc., 41, and Bosworth v. Sturtevant, 2 Cush., 391. "While natural objects and artificial boundaries will generally prevail over course and distance, yet the former will often, from the nature of the case, be compelled to yield to the most inferior call. Everything being equal, the call for natural objects would have precedence, because most durable and less liable to change, and are supposed to be selected as landmarks because of their immutability. This is only true when they are selected as locative calls, and are then not always absolute; when they are noted in the field (94) notes as mere incidental calls in passing, their reliability is weakened and sometimes rendered wholly worthless. Distances called for between corners to creeks or roads, unless specially designated in such manner as to show the intention to make them locative, are not such, and will not ordinarily have precedence over a call for course and distance. The calls in the Hunt deed for the creek and road are incidental, and unless shown to be intended as locative, should not be so regarded if inconsistent with other locative calls." Jones v. Andrews,72 Tex. 5[72 Tex. 5]. See, also, Lutcher v. Hart, 26 S.W. Rep., 94;Page v. Scheibel, 11 Mo., 167, 187.
It was held in White v. Luning, 93 U.S. 514 (23 L.Ed., 938):
"1. As a general rule, monuments, natural or artificial, referred to in a deed control its construction, rather than courses and distances; but this rule is not inflexible; it yields whenever, taking all the particulars of the deed together, it would be absurd to apply it.
"2. If monuments are inconsistent with the calls for other monuments, and it is apparent from all the other particulars in the deed that they were inadvertently inserted, they will be rejected.
"3. Other things being equal, boundaries prevail over courses; but where the corners and distances inclose the identical land in dispute, it would be wrong to let two false boundaries stand, in order to defeat a conveyance."
See, also, 1 Jones on R. P., secs. 382, 383, 384; 2 Devlin on Deeds, 1405, 1406; Noonan v. Lee, 2 Black (U.S.), 504 (17 L.Ed., 279); Shipp v.Miller, 2 Wheat., 316; Davis v. Rainsford, 17 Mass. 207; Thatcher v.Howland, 2 Metc., 41; Parks v. Loomis, 6 Gray, 472; Hamilton v. Foster,45 Me. 40; Evans v. Greene, 21 Mo., 481; Bass v. Mitchell, 22 Tex. 285
[22 Tex. 285]; Bagley v. Morrill,46 Vt. 99; Atkinson v. Cummins, 9 How. (U.S.), 485;Browning v. Atkinson, 37 Tex. 633[37 Tex. 633] [37 Tex. 633]; Barclay v. Howell, 6 Peters (U.S.), 511.
In Mayo v. Blount, 23 N.C. 283, it was said to be "a sound rule of construction that a perfect description, which fully ascertains the corpus, is not to be defeated by the addition of a further and false description."Cherry v. Slade, 7 N.C. at p. 96, Henderson, J.; Proctor v. Porter,15 N.C. 307; Shaffer v. Ham, 111 N.C. 1, at p. 11; Shultz v. Young,25 N.C. 287.
We find it stated in plaintiff's brief that "When a deed sufficiently identifies land by its known boundaries or other means, and then superadds, unnecessarily, to the description, such further description, though inaccurate, will not vitiate the previous and perfect description," citingSimpson v. King, 36 N.C. 11; Mortgage Co. v. Long, 113 N.C. 126. This is because of the maxim, Falsa demonstratio non nocet. If the line should be run from A to D and then extended to the head of Defeat Ridge on the Tennessee line, so as to satisfy both calls (Clark(95) v. Wagoner, 76 N.C. 463), it would be of no benefit to the plaintiffs, as we understand. But the mention of Defeat Ridge was evidently incidental, and not intended to be locative. It was merely a mistake of the parties as to where the Bryson corner was. As we have seen, "all authorities unite in saying that no rule can be invoked, no matter how correct in its general application, that tends to defeat the intention of the grantor." Elliott v. Jefferson, supra. In this case the mistake in the call for Defeat Ridge is corrected by other more certain descriptions in the grant, which is one of the permissible methods of ascertaining what was meant. Campbell v. McArthur, 9 N.C. 33; Ritter v. Barrett, 20 N.C. (4 D. and B.), 133; Cooper v. White,46 N.C. 389; Kessam v. Gaylord, 44 N.C. 116.
There are several facts which tend to show clearly what property was intended to be described:
1. There is no reference in the grant to the Deep Gap or Forester Ridge, but the call is for a course due north to the Tennessee line, and this course is deflected, not to coincide with Deep Gap or Forester Ridge, but with the Bryson line, beginning with it, running with it, and "cornering" with it at its northeast corner, where the maple is. We must, therefore, adopt the latter as the line, or, at least, as a part of the line. Mizzellv. Simmons, 79 N.C. 187; Cansler v. Fite, 50 N.C. 424.
2. If the call is run with the Bryson line; and stopped at the Bryson northeast corner, the other calls of the grant fit in with it; whereas if run as plaintiffs contend it should be, there are marked discrepancies.
3. The Bryson line was marked, when the first or Siler survey was made, at both of its ends, and has for its northeast corner a maple, which identifies it with certainty.
4. There are subsequent calls in the Bryson survey for physical monuments just as certain and as reliable as Defeat Ridge, and they would not be reached without greatly lengthening lines, if the line is carried to Defeat Ridge. One of them is "700 poles to a beech, where the Locust Ridge reaches the Tennessee line."
It will be conceded, we presume, that the mere understanding of the parties, without more, as to the location of Bryson's line and northeast corner, cannot control the call. Hough v. Howe, 22 N.C. 228; Johnsonv. Farlow, 33 N.C. 190; Literary Fund v. Clark, 31 N.C. 63;Wynne v. Alexander, 29 N.C. 237; Sasser v. Herring, 14 N.C. 340;Land Co. v. Erwin, 150 N.C. 41; Miller v. Bryan, 86 N.C. 167;Ingram v. Colson, 14 N.C. 520; Patton v. Alexander, 52 N.C. 603. The call is not from the chestnut oak (at A) to Defeat Ridge (at B), but a very different one, and if you go to Defeat Ridge at all, it must be by way of the Bryson line, and importance must be attached to the fact that it also calls for Bryson's corner as the end of the line. The Bryson line, at the time, had been well established, having one corner at the chestnut oak (at A) and the other at the maple (at B), (96) with marks on the trees indicating its course. It could easily be identified, and was certainly identified.
There are many exceptions to evidence in the case, but we think they can be so classified as to present but few questions for our consideration.
First. The testimony of the witnesses M. L. Kelly, P. C. Sawyer, and Joseph M. Greer, and any other of the same kind, as to the declarations
of B. L. Sawyer concerning the Bryson line, was properly limited by the court to what was actually done on the Kelly survey. The declarations of B. L. Sawyer as to the location of the Bryson line were incompetent, because he was not shown to be disinterested at the time they were made, and, on the contrary, it appears that he was interested at the time of the alleged declarations. Morgan v. Purnell, 11 N.C. 97; Sasser v. Herring, 14 N.C. 340;Hedrick v. Gobble, 63 N.C. 48; Caldwell v. Neely, 81 N.C. 114;Shaffer v. Gaynor, 117 N.C. 15; Yow v. Hamilton, 136 N.C. 357; Hemphillv. Hemphill, 138 N.C. 504; Hill v. Dalton, 140 N.C. 9; Lumber Co. v.Branch, 150 N.C. 240. The declarations of a grantor are not competent in favor of one claiming under him. Sasser v. Herring, supra. We need not say whether the evidence is sufficient to show the declarations were ante litemmotam. It may be said that where the declarant has parted with his interest, what he has afterwards said about lines and boundaries cannot be used against those claiming under him to disparage their title. The same principle applies to the testimony of the witness A. C. Hoffman.
Second. The testimony as to the contents of the deposition of Bent Cook was properly excluded, as the witnesses were not able to give the substance thereof (Wright v. Stone, 49 N.C. 516; Whitemire v. Heath, 155 N.C. 304), and, besides, the deposition itself was not competent, as it had not been opened and passed upon, when it was destroyed, and never has been restored for that purpose. Revisal, sec. 1652. It may be added that the testimony of Bent Cook as to declarations of Bryson was incompetent, as they were made after Bryson had disposed of his interest, and would disparage those claiming under him. 16 Cyc., 979. The testimony of T. T. Jenkins and T. J. Calhoun was properly excluded, and is governed by what we have already said in regard to the other excluded evidence. Besides, it does not clearly appear when the alleged declarations were made.
Third. The testimony of William Walker as to line trees was not sufficiently definite as to kind of marks or their age, and in other respects was very indefinite. Even if there was any error, it was not sufficiently harmful for a reversal.
Fourth. Testimony as to the acts and declarations of Kope Elias was properly rejected. The relation between George W. Swepson and Elias, as client and attorney, appears to have been severed at (97) the time of the alleged acts and declarations, by the death of Swepson, and we can see no authority in Elias to bind Swepson by his acts or declarations. It surely did not arise out of their relations as attorney and client.
Fifth. The copy of the grant to George S. Walker, No. 138, taken from the registry, was properly admitted in evidence. By Revisal,
sec. 988, it is provided that the registry of a deed, or duly certified copy thereof, shall be evidence in any court of the State, without accounting for the nonproduction of the original, and by sections 1588, 1599, it is further provided that the court may, "upon affidavit suggesting some material variance from the original in such registry, or upon other sufficient grounds," by rule or order require the production of the original of such deed, in which case the same shall be produced, or its absence duly accounted for according to the course and practice of the court. In this case, upon affidavit, Judge Peebles ordered that defendants allow plaintiffs to inspect the original grant, No. 138, and the plat and certificate of survey thereto attached, or show to the satisfaction of the court that they had made diligent effort to find them and failed, and on failure to produce the original grant, that they procure and use a certified copy of the same from the office of the Secretary of State. The latter was offered in evidence, and the court found that defendants had never had the originals in their possession or under their control, and that they had made a bona fide effort to produce the original papers by doing the things and making the inquiries and search detailed in the finding. Thereupon the court overruled the exception to the admission of the copies.
We concur with his Honor that reasonable search had been made for the missing papers, and that the order of Judge Peebles had, at least, been substantially complied with. It was fairly exhaustive as to sources of information and probable places of deposit, and to have required more would have rendered it practically impossible to have complied with the order. There is really no tangible or reliable proof that there is any variance between the originals and the copies — none upon which a finding to that effect should legally be made. It is merely suggestion, conjecture, or supposition; but even if there had been some proof to that effect, the defendants satisfied the court that they had made a diligent effort to comply with the order, as they were required by its terms to do. Justice Ruffin said, in Love v. Harbin, 87 N.C. at p. 254: "A main purpose intended to be accomplished by registration is the perpetuation of the instrument, and of the memorial of its probate and order of registration, and it will not do to hold that this intention of the statute may in every case be defeated by a notice to produce the original. Under the operation of such a rule it would be next to impossible to establish any title depending upon very ancient deeds, as they are rarely preserved so as to pass with the land; and this partly because it is universally understood that when once (98) registered the proofs of their execution and probate are perpetuated."
Sixth. As to the testimony of Mr. Davidson in regard to proceedings inWyman v. Taylor, we do not see how it could be competent, if relevant to the issue in this case, to show that the court refused certain instructions in that case. It was res inter alios acta. The court submitted the evidence for the purpose of showing the litem motam, as the record states.
Seventh. The description in a junior grant may not be evidence of the location of lines or boundaries of a senior grant (Sasser v. Herring,supra; Hill v. Dalton, 136 N.C. 339); but it was the survey of Siler that fixed the Bryson line, and this was made prior to the date of the senior grant, No. 3290. This is quite a different question from the one decided in the cases cited. The court properly admitted the map and certificate of survey to corroborate Siler.
Eighth. If there is any defect in the defendant's chain of title, it does not concern the plaintiffs in this appeal, as they must recover upon the strength of their own title, and not upon the weakness of their adversary's. They cannot recover by showing merely that defendants had no title, even if this be true.
Ninth. The referee was not bound to find a fact simply because there may have been some evidence of it, as he had the right to weight the same, and therefore he could consider the evidence of reputation as to the Bryson line in connection with the other evidence in the case, and was not compelled to find in accordance with the reputation. He considers the whole evidence, and not merely a part of it; and this applies to other exceptions based upon his failure to find certain facts.
Tenth. The testimony of Joseph M. Greer, as to certain facts told him about the Bryson northeast corner at Defeat Ridge, was properly excluded, as he said "it seemed to be agreed by all of said persons"; but just who it was that called his attention to it he would not say positively, because he did not recollect every person present. This was entirely too indefinite. He did not, and could not, say who it was, nor did he state what was said, so that the court could judge of the quality of the testimony, but he was only able to state that "it seemed to be agreed by them." The witness must be able to give the substance of what was said and by whom, and the impression made on him will not answer the purpose. This was held in Grant v. Mitchell, 156 N.C. 15, where, at p. 18, it is said: "The secondary witness may give the substance, but not the mere effect, of the former testimony. To allow him to state the latter only would be to permit him to decide upon the effect of the testimony, instead of submitting it to the jury, to (99) whom it properly belongs," quoting from Jones v. Ward, 48 N.C. 26, and citing King v. Joliffe, 4 Term R., 290.
There are a few more exceptions, but they are fully covered, we think, by what we have said in regard to the others, and require no further discussion. It may be said generally, and in conclusion, that no reference is made in Grant No. 3290 to Deep Gap or Forester Ridge as a line of the grant, and this is made more significant by the fact it is referred to only for the purpose of describing the beginning corner at the chestnut oak (A on map), and the next call is "north with Col. T. D. Bryson's line," and so forth, and not "north with the Deep Gap or Forester Ridge, Col. Bryson's line," as we would expect if the ridge controlled the call. The referee and judge find that it was not the intention to make the ridge one of the lines, or Defeat Ridge one of the corners, but the sole intention was to start at the chestnut oak and go to the sugar tree or maple at the head of Big Chestnut Ridge. It is found as a fact that in the survey of 1871, for Grant No. 3290, the line was measured along Deep Gap or Forester Ridge and carried to Thunderhead, it being the head of Defeat Ridge, in order toretrace the survey of 1867, for the purpose heretofore stated, which was triangulation, the object being to locate the line from A to D, or from the first corner to the sugar maple, and to establish, at the latter place, the Bryson northeast corner. If a line had been run along Deep Gap, it could not be adopted as a line of the survey unless it was so intended to be, and it is found by both referee and judge that there was no such intention. The line from A to D was marked for some distance at either end, and cuts or hacks made on the chestnut tree at the place of beginning, and at the time, indicating its direction. Besides, to fix the line at A-D will harmonize with the other calls of the Bryson tract of land. All these things being considered — and others could be added — make it safer and more certain, as a guide to the intention of the parties, that the call should be controlled by the Bryson line as thus located, from A to D, than by the line A-B, which is not even north, and has no such indicia of a line as we find on the other. Again we say, physical monuments will have the preference in the calls, unless there is some more definite and certain call that clearly indicates the intention of the parties. There is no hard and fast rule of the law that is permitted to have the effect of defeating the clearly expressed will of the parties.
It must be borne in mind that we are dealing with a referee's report, in which the facts were found and the findings afterwards confirmed by the judge, and this renders many of the cases cited by the plaintiff inapplicable. It is found, for instance, that the line from A to B was not run and marked, nor was it intended to be the first line of the Kelly survey, but the line A-D was intended to be the first line, and, further, that the line A-B, by Forester's Deep Gap Ridge, was run, though not marked, for the purpose solely of locating the line A-D (100)
as the first line of the tract, the Kelly survey having been made just as was the Siler survey and for the same purpose. The rule, therefore, which classifies locative calls into natural objects, mountains, rivers, lakes, and creeks, artificial objects, as marked trees, lines, and course and distance, giving them rank in the order named, does not require, in this case, that the first line should run from A to B, without any regard to the call for Bryson's line, as the line A-D was actually run and marked for the first line; and, besides, there are other calls in the survey of equal importance with the one for Defeat Ridge, which would have to be disregarded if that is adopted as the end of the first line. If the line is run from A to D, we are following the footsteps of the surveyor, and rejecting a false description for that which is not only certain, but which the referee and judge say was the one actually adopted by the parties at the time of making the surveys. This is not a case where there is a call by course merely to a certain object, for here the course is controlled by an additional call for a well established line of another tract, which was actually run and marked when the Bryson line was surveyed, and the question is whether the course should be along said line. The well settled rule, and the true construction of the grant, require this departure from the course.Lumber Co. v. Hutton, 159 N.C. 445; Whitaker v. Cover, 140 N.C. 280;Bowen v. Lumber Co., 153 N.C. 366. Abstract rules of law should not be so applied as to disappoint the clear intention of the parties, Triplett v.Witherspoon, 149 N.C. 394; Gudger v. White, 141 N.C. 507, and the rules of law in respect to boundary were adopted to prevent such a result. It may be added that Forester or Deep Gap Ridge, along which the Kelly survey is claimed to have been made, appears to be quite as prominent and as well known as Defeat Ridge, and yet there is no mention of it in the surveys, or the grants, as a line. It is argued by plaintiffs that it would be far more certain, if called for, than the line of another tract; and if this is so, why did not the surveyor call for it?
The record and the briefs are voluminous, the record containing 805 and the briefs 342 printed pages, and there were a large number of exceptions, running into the hundreds. Some of the questions are highly important and very delicate in certain of their phases. The case has been strenuously contested, with great ability and research, and the Court has bestowed upon it most careful study and reflection. We have concluded that we but decide it upon its true legal merits when we hold that no error was committed at the hearing in this the plaintiff's appeal.
No error.
DEFENDANT'S APPEAL.