Connor, J.,
after stating tbe case: Tbe plaintiff introduced testimony tending to show tbe location of tbe Alexander grant of November 29, 1809, within tbe boundaries set out in tbe complaint. She does not connect herself with this grant, but shows a chain of title beginning February 10, 1834, with which she does connect herself, showing possession, etc. Tbe defendants, -for tbe piirpose of -showing title out of tbe State, at tbe date of tbe Alexander grant, introduced a grant to John Hughes, dated February 26, 1793, which they undertook to locate. This grant called for a Spanish oak as tbe beginning corner. There was evidence tending to show tbe location of this oak. Tbe surveyor testified that it was marked as a corner. The first call from this oak was by course and distance to a pine; tbe second call was by course and distance to “a stake in bis (Hughes) line.” Tbe surveyor testified that tbe course and distance, called for, carried him to a point marked
“2”
on tbe plat; be found no pine there, found a stump three or four feet away. The second call by course and distance carried him to “3be made no inquiries as to tbe Hughes line, made no attempt to find it, nor was be asked to do so by either party. He testified that following the call be reached “4,” thence to the begin
ning. If this testimony is true, the Hughes grant covers a portion of the Alexander grant and shows title out of the State at the date thereof.
So far as the controversy is presented upon this appeal and the exceptions to His Honor’s ruling, the sole question is as to the manner in which the defendants may locate the Hughes grant. The plaintiff having shown a
prima facie
title, it behooved the defendants to show a superior title. The burden of proof upon the
issue
was upon the plaintiff. She alleged title and the defendants denied it. Showing a
prima facie
title did not. shift the burden of proof upon the issue, but imposed upon the defendants the duty of “going forward” with their evidence. The distinction is clear and well illustrated in
Meredith v. Railroad,
137 N. C., 478, and
Board of Education v. Makely,
139 N. C., 31. When the defendants introduced the Hughes grant, they undertook to show that it covered a portion of the
locus in quo.
It became necessary for them to show the beginning — this being a natural object. After doing so and it appearing that the calls were for course and distance and natural objects, it is too well settled to admit of controversy that if there was a discrepancy in the calls, that which was most certain, which is the natural object, would control. The judge so instructed the jury, and he further imposed upon the defendants the duty of making reasonable search for the natural objects before they could rely upon the calls for course and distance. To this ruling the defendants excepted, and this is the point for determination.
Ruffin, C. J.,
in
Harry v.
Graham, 18 N. C., 76 discussing this question, says: “There is but one principle applicable to questions of this sort. If there be but one description in the deed, that is to be strictly adhered tó. If there be more than one and they turn out upon evidence not to agree, that is to be adopted which is the most certain. Course and' distance from a given point is a certain description in itself,
and, therefore, is never departed from unless there be something else which proves that the course and distance stated in the deed was thus stated by mistake. It has been held that a tree called for and found not corresponding to the course and distance, establishes the mistake, and is itself the terminus. So of the line of another tract. But if the tree be not found, nor its former situation identified, it is the same as if the call for it had been omitted, for there is no sign but the course and distance. Such is the case here, no tree being-found, nor its locality proved otherwise than it is shown by the deed to have stood at the end of- a line of a certain length. The description is, therefore, the same as if the call had been for a stake or an imaginary point at the end of a distance.” The rule is laid down by
MacRae, J.,
and approved in
Redmond v. Stepp,
100 N. C., 212: “If only course and distance are given and the beginning is 'found, the land will be run by course and distance. But when in addition to course and distance, natural objects, marked trees or lines of other tracts are called for, these, when shown, will control course and distance and must be reached by a further extension or shortening of the line so as to reach such objects, trees or adjoining tracts. If none such can be found, then the course and distance must be the guide in fixing the boundary.” This is the correct view and has, in actions of ejectment and trespass, been so recognized. It would impose upon those claiming, as in this case, under old grants, a heavy burden to require them to find or make search for natural objects or very old lines, before they could make at least a
prima facie
location of such grants.
The plaintiff contends that there was evidence tending to show that, in truth, the Hughes grant did not cover any part of the Alexander, grant. If this is correct, such evidence should have been considered by the jury. The record does not profess’ to set out the language used by the judge, but says that in effect, he charged the jury that “the burden was
upon tbe defendants to locate tbe Hughes line, before they could establish the boundary by course and distance.” This may not correctly express ITis Honor’s views or instruction, but we must take it as we find it in the record. We think that the instruction was erroneous. It not appearing Ironi the survey that there was any discrepancy in the calls of the grant, the call for course and distance would control. If there was evidence, as contended by the plaintiff, the question should have gone to the jury under proper instructions. The plaintiff’s counsel cites in support of the instruction
Hill v. Dalton,
140 N. C., 9. That case gave us much anxious concern. The question was presented, in regard to the burden of proof, in a proceeding under the processioning act, for the first time. As we then said, the plaintiff was the actor; he set forth his line and insisted that it should be so declared and established; he therefore 'carried the burden of proof on the issue. The grant contained three calls — course and distance, a white oak in Jas. McKaughan’s line. The survey by course and distance did not show any white oak or other line. Evidence was introduced by the defendant locating the McKaughan line. The sole question was, where in this condition of the evidence, the burden of proof lay. Apprehending the difficulty which might arise, if the principle then announced was not restricted to the single case of a processioning proceeding, which is anomalous and always perplexing, we said: “We confine our ruling to a proceeding for procession for establishing a disputed line.” A¥e certainly did not intend to introduce a new rule of practice into the trial of other cases. We are impressed with the wisdom of adhering to well settled rules affecting the title to real estate. It is to be regretted that the evidence and language of His Honor’s instructions were not sent up.
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Connor, J.,
after stating tbe case: Tbe plaintiff introduced testimony tending to show tbe location of tbe Alexander grant of November 29, 1809, within tbe boundaries set out in tbe complaint. She does not connect herself with this grant, but shows a chain of title beginning February 10, 1834, with which she does connect herself, showing possession, etc. Tbe defendants, -for tbe piirpose of -showing title out of tbe State, at tbe date of tbe Alexander grant, introduced a grant to John Hughes, dated February 26, 1793, which they undertook to locate. This grant called for a Spanish oak as tbe beginning corner. There was evidence tending to show tbe location of this oak. Tbe surveyor testified that it was marked as a corner. The first call from this oak was by course and distance to a pine; tbe second call was by course and distance to “a stake in bis (Hughes) line.” Tbe surveyor testified that tbe course and distance, called for, carried him to a point marked
“2”
on tbe plat; be found no pine there, found a stump three or four feet away. The second call by course and distance carried him to “3be made no inquiries as to tbe Hughes line, made no attempt to find it, nor was be asked to do so by either party. He testified that following the call be reached “4,” thence to the begin
ning. If this testimony is true, the Hughes grant covers a portion of the Alexander grant and shows title out of the State at the date thereof.
So far as the controversy is presented upon this appeal and the exceptions to His Honor’s ruling, the sole question is as to the manner in which the defendants may locate the Hughes grant. The plaintiff having shown a
prima facie
title, it behooved the defendants to show a superior title. The burden of proof upon the
issue
was upon the plaintiff. She alleged title and the defendants denied it. Showing a
prima facie
title did not. shift the burden of proof upon the issue, but imposed upon the defendants the duty of “going forward” with their evidence. The distinction is clear and well illustrated in
Meredith v. Railroad,
137 N. C., 478, and
Board of Education v. Makely,
139 N. C., 31. When the defendants introduced the Hughes grant, they undertook to show that it covered a portion of the
locus in quo.
It became necessary for them to show the beginning — this being a natural object. After doing so and it appearing that the calls were for course and distance and natural objects, it is too well settled to admit of controversy that if there was a discrepancy in the calls, that which was most certain, which is the natural object, would control. The judge so instructed the jury, and he further imposed upon the defendants the duty of making reasonable search for the natural objects before they could rely upon the calls for course and distance. To this ruling the defendants excepted, and this is the point for determination.
Ruffin, C. J.,
in
Harry v.
Graham, 18 N. C., 76 discussing this question, says: “There is but one principle applicable to questions of this sort. If there be but one description in the deed, that is to be strictly adhered tó. If there be more than one and they turn out upon evidence not to agree, that is to be adopted which is the most certain. Course and' distance from a given point is a certain description in itself,
and, therefore, is never departed from unless there be something else which proves that the course and distance stated in the deed was thus stated by mistake. It has been held that a tree called for and found not corresponding to the course and distance, establishes the mistake, and is itself the terminus. So of the line of another tract. But if the tree be not found, nor its former situation identified, it is the same as if the call for it had been omitted, for there is no sign but the course and distance. Such is the case here, no tree being-found, nor its locality proved otherwise than it is shown by the deed to have stood at the end of- a line of a certain length. The description is, therefore, the same as if the call had been for a stake or an imaginary point at the end of a distance.” The rule is laid down by
MacRae, J.,
and approved in
Redmond v. Stepp,
100 N. C., 212: “If only course and distance are given and the beginning is 'found, the land will be run by course and distance. But when in addition to course and distance, natural objects, marked trees or lines of other tracts are called for, these, when shown, will control course and distance and must be reached by a further extension or shortening of the line so as to reach such objects, trees or adjoining tracts. If none such can be found, then the course and distance must be the guide in fixing the boundary.” This is the correct view and has, in actions of ejectment and trespass, been so recognized. It would impose upon those claiming, as in this case, under old grants, a heavy burden to require them to find or make search for natural objects or very old lines, before they could make at least a
prima facie
location of such grants.
The plaintiff contends that there was evidence tending to show that, in truth, the Hughes grant did not cover any part of the Alexander, grant. If this is correct, such evidence should have been considered by the jury. The record does not profess’ to set out the language used by the judge, but says that in effect, he charged the jury that “the burden was
upon tbe defendants to locate tbe Hughes line, before they could establish the boundary by course and distance.” This may not correctly express ITis Honor’s views or instruction, but we must take it as we find it in the record. We think that the instruction was erroneous. It not appearing Ironi the survey that there was any discrepancy in the calls of the grant, the call for course and distance would control. If there was evidence, as contended by the plaintiff, the question should have gone to the jury under proper instructions. The plaintiff’s counsel cites in support of the instruction
Hill v. Dalton,
140 N. C., 9. That case gave us much anxious concern. The question was presented, in regard to the burden of proof, in a proceeding under the processioning act, for the first time. As we then said, the plaintiff was the actor; he set forth his line and insisted that it should be so declared and established; he therefore 'carried the burden of proof on the issue. The grant contained three calls — course and distance, a white oak in Jas. McKaughan’s line. The survey by course and distance did not show any white oak or other line. Evidence was introduced by the defendant locating the McKaughan line. The sole question was, where in this condition of the evidence, the burden of proof lay. Apprehending the difficulty which might arise, if the principle then announced was not restricted to the single case of a processioning proceeding, which is anomalous and always perplexing, we said: “We confine our ruling to a proceeding for procession for establishing a disputed line.” A¥e certainly did not intend to introduce a new rule of practice into the trial of other cases. We are impressed with the wisdom of adhering to well settled rules affecting the title to real estate. It is to be regretted that the evidence and language of His Honor’s instructions were not sent up. We could more clearly see the bearing of the instructions upon the real merits.
We are of the opinion that His Honor fell into error in holding that the defendants must locate the Hughes line
before they could establish the boundary of the grant by course and distance. We can see no reason why, upon the introduction of the grant and the survey, they may not have gone to the jury. Of course the plaintiff was in no sense bound by the defendant’s evidence. She may have insisted and asked the jury to find that the survey did not correctly locate the grant. It was their province to decide the question of fact, where the two lines were. Ilis Honor instructed the jury to find that the defendants we^’e not in possession of the
locus in quo
when the suit was brought. This put an end to the plaintiff’s action, if in ejectment only. His Honor was of the opinion that the complaint set forth facts sufficient to constitute a cause of action for trespass, and proceeded to judgment accordingly. While complications may grow out of this course of procedure, and the effect of such judgments, as estoppels, be doubtful, we cannot see that any harm came to the defendants in this case. The exception is not pressed in the brief.
As the cause goes back for a new trial, the pleadings may be so amended as to present the issue as for a trespass, if they do not in their present form do so.
The plaintiff says that no harm came to the defendants by reason of His Honor’s ruling, because they did not connect themselves with the Hughes grant. The evidence in that respect is not set out, if there was any. The record indicates that the parties desired to present the single question raised by the exception. It may be that the merits of the contro-A'ersy depended upon proof of possession ousting the owner of the paper title. Elowever all of this may be, for, the error pointed out there must be a
New Trial.