#### J. E. FOWLER et al. v. D. F. COBLE et al.

(Filed 16 April, 1913.)

Deeds and Conveyances — Destruction of Former Call — “At or Near” —Certainty of Description — Instructions — Burden of Proof— Course and Distance.

In an action of trespass wherein the divisional line between the contesting parties i's called in question, it appears that in the former deeds in plaintiff’s chain of title, one of the calls is to a certain house, which had been destroyed subsequently to the making of the deed from the plaintiff’s immediate grantor; and in the last deed the call is made to a stake “at or near the place where the house” formerly stood: Held, the destruction of this house could not affect the call or the description in the plaintiff’s original deeds; and it was not error for the judge to instruct the’ jury to find for the plaintiff, if the line ran to the house, leaving out the words “at or near the place,” etc., with the burden on the plaintiff of showing its location; and upon his failing to do so, the course and distance would control.

Appeal by defendants .from Ferguson, J., at May Term, 1912, of SaMpson.

II. A. Grady for pildintiff.

Faison & Wright and J. D. Kerr for defendant.

Walker, J.

This was an action to recover damages for a trespass on land and to enjoin tbe cutting of timber. Verdict and judgment for plaintiffs, and defendants appealed. Tbe land originally belonged to James Harrington, and was- partitioned among bis beirs. Plaintiffs claimed to bave derived title to Lot No. 9 in tbe division by judicial proceedings and *501mesne conveyances. Tbe point in controversy was tbe true location of tbe dividing line between tbe parties, defendant owning tbe land adjoining Lot No. 9. Tbe description of tbe line in tbe original partition of 1814 between Harrington’s beirs was, “tbence (tbat is, from C on map) sontb 60 east 180 poles to a stake at tbe (Harrington) bouse,” wbicb plaintiffs contended ran from letter C on t'be map to letter H, tbe bouse being at H, but tbey were willing for tbe line to be run to letter G, thereby about equally dividing tbe locus in quo between tbe parties. Tbe jury located tbe line C G as tbe true one. Some of tbe deeds in plaintiff’s chain of title, subsequent to tbe Harrington partition in 1814, described tbe line as running “tbence (tbat is, from C on map) south 60 east 180 poles to a stake at or near tbe place where tbe bouse of James Harrington, deceased, formerly stood,” and defendant insisted tbat tbe last part of tbe call, “to or near tbe bouse,” was too uncertain or indefinite to control, and tbe line should be run by course and distance, relying upon Harry v. Graham, 18 N. C., 76; Cansler v. Fite, 50 N. C., 428; Mizzell v. Simmons, 79 N. C., 183; Brown v. House, 118 N. C., 872. If this be so, there was no trespass, as tbe line would be from 0 to D on tbe map, tbe southern boundary of tbe locus in quo. Plaintiffs contended tbat, tbe call for tbe bouse, .though now gone, was sufficient to control course, as tbe place where tbe bouse once stood bad been fully identified. Tbe court charged tbe jury tbat if, upon tbe evidence, tbey found where tbe Harrington bouse, called for in tbe partition and deeds, stood, tbey would run tbe line to tbat place, tbe burden being upon tbe plaintiff to satisfy them where tbe bouse stood in 1814, at tbe time of tbe Harrington partition, when tbe lot was first described by metes and bounds; and if plaintiff bad failed to so satisfy them, tbey would run tbe line by course and distance, south 60 east 180 poles, to tbe other boundary. There was evidence to support this charge. ~We do not think tbe inadvertent change in tbe call, from “south 60 east 180 poles to tbe bouse” to “south 60 east 180 poles to or near tbe bouse,” effected any change in tbe boundary. It was admitted, and if it bad not *502been, it clearly appeared, that all tbe deeds conveyed Lot No. 9 of tbe Harrington partition, wbicb bad well defined metes and bounds, tbe call on tbe disputed line being for tbe bouse. Tbis was sufficient to control course and distance, and it made no difference tbat tbe bouse bad been removed. How could tbis change tbe boundary? If tbe bouse controlled wben it was there, it did so ever afterwards. It would be very strange if a call for a tree would be governed by course and distance merely because tbe tree bad -died and disappeared, if tbe place where it once- grew could be ascertained. Tbe call for a tree is a very common one, and if tbis rule prevailed, our boundaries would be constantly shifting. We find it stated by Chief Justice Taylor, in Cherry v. Slade, wben giving tbe rules on questions of boundary and as a part of tbe fourth rule, tbat “where there are no natural boundaries called for, no marked trees or corners to be found, nor the, places where they once stood ascertained and identified by evidence . . . we are of necessity confined to tbe courses and distances described in tbe patent or deed.” (Italics ours.) - Tbis was approved in Bowen v. Lumber Co., 153 N. C., 366. See Guano Co. v. Lumber Co., 146 N. C., 187. It being, therefore, established tbat tbe original call must go to tbe bouse, or its site, tbe bouse having been removed, all tbe subsequent deeds conveying tbe same tract of land, tbat is, Lot No. 9, must have tbe same boundary in answer to tbe call, though tbe words “at or near” are used, for it is tbe same as if tbe boundaries of Lot No. 9, as contained in tbe report and judgment in tbe partition proceeding, bad been inserted in tbe deeds. Tbis doctrine is fully discussed in Ipock v. Gaskins, 161 N. C., 673. Tbe more certain description, as shown in tbe partition, will prevail over tbat wbicb is less certain. Tbe deed' corrects itself, for it is Lot No. 9 wbicb is conveyed, and tbe description of tbat is fixed by tbe language to be found in the partition proceeding. Tbe following admission appears in defendants’ brief: “It appeared from tbe evidence tbat all tbis land and tbe adjoining lands bad once been tbe lands of tbe James Harrington estate, and bad been divided in 1814, and tbat tbe land sold in tbe special proceeding to Owens (tbe plaintiff) was Lot No. *5039 in tbis old division.” Dock Owens claimed by assignment from John E. Fowler, who bought the lot from Butler and Kerr, commissioners, who sold it under a decree in a partition proceeding between the heirs and devisees of Daniel Melvin, who purchased from Philip Harrington, to whom Lot No. 9 was assigned in the division of the lands of James Harrington. The reason for using the words “at or near” was that the house was gone, and the parties were, at that time, uncertain as to its true location; but whatever the reason may have been, it is manifest that it was intended to convey Lot No. 9, the boundaries of which were unchangeably fixed by the original partition. The other exceptions are untenable.

No error.