#### AMY ALLISON et als. v. W. T. KENION.

(Filed 19 November, 1913.)

Deeds and Conveyances — Marked Corners — Contemporaneous Conveyance — Evidence.

When tbe parties to a deed contemporaneously agreed as to a controlling corner which they mark at the time, and describe it in the deed as a certain number of feet from a fixed point, evidence is competent, as between the parties, which tends- to establish the corner so marked by them; and such location made contemporaneous with the execution of the deed will control course and distance.

Appeal by plaintiffs from Peebles, J., at,May Term, 1913, of ORANGE.

Civil action involving title to land. It was agreed tbat tbe judge should find tbe facts.

From tbe judgment rendered, tbe plaintiffs appeal.

Frank Nash for plaintiffs.

John W. Graham for defendant.

Brown, J.

It appears from the record tbat William Allison acquired title in fee simple to a lot of land in Hillsboro, and on 17 May, 1897, conveyed a part of it to E. L. Coley, wbo conveyed to Forrest in 1899, wbo conveyed to defendant in 1905. Tbe only dispute between tbe plaintiffs and defendant is tbe location of tbe dividing line between tbem, tbe plaintiffs’ southern and tbe defendant’s northern line.

Tbe description contained in eacb of tbe deeds is as follows: “Commencing at tbe northwest granite abutment of Eno Railroad bridge, near tbe Hillsboro Railroad station, and measuring from point north up Occoneecbee Street 654 feet on tbe east side of said street is tbe established northwest corner of said lot.”

Tbe plaintiffs contend tbat a rock buried one foot iñ tbe ground and one foot out of tbe ground is tbe true comer, and offered evidence to show tbat after Cooley bad written tbe deed in William Allison’s bouse, be and Cooley went out, placed tbat *583rock where it is now, and told William Allison that the rock was the end of the 654 feet from- abutment of bridge, and was southwest corner of Allison’s lot. This evidence in due time was objected, to by the defendant, and the judge excluded the same. The plaintiffs excepted.

The evidence excluded is as follows:

Amy Allison, having been duly sworn, testified: “I am the wife of William Allison, who is now dead, and one of the plaintiffs in this action. Dr. Pride Jones conveyed this land to my husband (the plaintiff had before this introduced the deed of Pride Jones and wife to William Allison, dated September, 1878). We went there to live the November before the deed was made, and we lived there continuously to the death of my husband; and I have lived there continuously since.

“We cultivated the land'in controversy as a garden spot, and after my husband’s death I cultivated it as such up to April, 1912, when the defendant, Mr. Kenion, took possession of it.

“I know Mr. E. L. Cooley; he is a business man, and not a lawyer, and is living now, but is out of the State. My husband and I executed the deed to him (the deed from William Allison and wife, Amy, to E. L. Cooley, dated 17 May, 1897, and was duly recorded, had been introduced in evidence by the plaintiff).

“He came to our house the day the deed was executed; we lived on Occoneechee Street, and my husband sold him the lot. He.stepped the distance from the abutment of the bridge to the point to which we agreed to sell him, and he said it was 654 feet. The ground from the abutment to the point was' very rough, cut up with gullies, and full of bushes. Mr. Cooley came in our house, which was near-by, and wrote the deed, and we signed it.

“We then went out to where Mr. Cooley said the measurement stopped, and he put a rock down there, dug a deep hole and put it, the rock, about one foot in the ground and about one foot out. I asked him if that was the line, and he said it was— ‘everything was right and straight, and you will have no more trouble with it’; that rock is still there.

“Mr. Cooley moved a house out to the lot he bought from us; put up some outbuildings there, and rented it to some mill peo-*584pie, I think. All of the houses were then, and are now south of the line running- east from the rock -on Occoneeehee Street to the river; and we have cultivated up to the rock line until Mr. Kenion interfered in April, 1912.

“Mr. Forrest bought this lot from Mr. Cooley; don’t know exactly when .Mr. Forrest had a well dug, and told me that if I could furnish some hands, he would have it dug on the line. I furnished a hand and it was dug on the line running east to the river from the.rock ('the line claimed by plaintiff as the true line). ,

“Mr. Forrest afterwards sold this lot to the defendant, Mr. Kenion, and he was in possession of it up to the rock line, when, last April, after a measurement by Mr. Webb, the county surveyor, he claimed that the 654 feet ran beyond, north of the rock line, and he took possession of the land in controversy at that time and cultivated it for the year 1912. The annual rental válue of this piece of land is $25.”

We are of opinion that his Honor erred in excluding this evidence.

It appears upon the face of the deed that the northwest corner, which is the vital point in this controversy, was established by the parties to the Cooley deed at the time that deed was executed, and it is permissible to prove by parol evidence at what particular place that northwest corner was 'established by them.

In Sherrod v. Battle, 154 N. C., 353, Mr. Justice Walker quotes with approval a clear and succinct statement of the law from the New Jersey Court:

“In settling a question of boundary, when there is a latent ambiguity in the description contained in the deed, or a doubt as to the true location of the lines, evidence aliunde is admissible to show where the lines are.

“Boundaries may be proved by every kind of evidence admissible to establish any other fact. The question of construction is a question of law to be decided by the court upon the terms of the instrument itself, and when no latent ambiguity exists, it must be decided without evidence aliunde; but a question of *585location, or the application of a grant to its proper subject-matter, is a question of fact to'be determined by-the jury by the aid of intrinsic evidence.” Opdyke v. Stevens, 28 N. J. Law, 83.

The evidence is admissible upon another ground: It has been held continuously since Cherry v. Slade, 7 N. C., 82, that whenever it can be proved that there was a line actually run -and marked, and a corner made at the time of the execution of-the deed, for the purpose of establishing the location of the land, the party claiming under it shall hold accordingly, notwithstanding a mistaken description of the land in the deed.

In commenting upon that rule, Justice Ashe says in Baxter v. Wilson, 95 N. C., 144: “This construction has been adopted by our Court to carry out the intentions of the parties when it is clearly made to appear; and to effect that object, course or 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.”

The rule is again stated by Henderson, C. J., in Reed v. Schenck, 13 N. C., 415, to be: “Parol evidence to control the description of land contained in a deed is in no case admissible, unless where monuments of boundary were erected at the execution of the deed. If the description in the deed varies from these monuments, the former may'be controlled by the latter.”

In Shaffer v. Gaynor, 117 N. C., 16, it is held that, “Though parol proof is. not, as a rule, admissible to contradict a plain, written description, it is always competent to show by a witness that the parties by a contemporaneous but not by a subsequent survey agreed upon a location of lines and corners different from that ascertained by running course and distance.”

This rule, whether wisely or not, has been recognized and applied in an unbroken line of cases in this State since 1819. Deaver v. Jones, 119 N. C., 598; Fincannon v. Sudderth, 144 N. C., 587; Elliott v. Jefferson, 133 N. C., 207; Higdon v. Rice, 119 N. C., 623.

This question was last discussed by Justice Hoke in Clarke v. Aldridge, 162 N. C., 327, where it is held that “Where parties, *586with a view of making a deed, go on the land and make a physical survey of the same, giving it a boundary 'which is actually run and marked, and the deed is thereupon made, intending- to convey the land which they have surveyed, such land will pass, at least as between the parties or volunteer- claimants, who hold in privity, though a different and erroneous description may appear on the face of the deed.” »

Whatever may he thought at this day of the wisdom of this rule of evidence, it must be admitted that it is thoroughly en-grafted upon the jurisprudence of this State.

In line with our precedents, the Supreme Court of Indiana has held that, in a controversy involving the location of a boundary line,, fixed by commissioners of partition, monuments fixed at the time, and mentioned in the report, will control distances, and that in such a case parol evidence is admissible to explain an ambiguity arising from “the omission to describe the-monument at one corner.” Hodge v. Sims, 29 Ind., 574. This case is cited with approval in Baxter v. Wilson, supra.

It is true that an actual survey by a surveyor was not rhade of the land conveyed by William Allison to Cooley, but what is equally as effective, the two parties themselves went on the land, and Cooley, himself, if the rejected evidence is to b6 believed, planted the monument at the northwest corner in Allison’s presence and with his consent. Cooley, himself, wrote the deed, and this was done contemporaneously with its execution, and the deed so written calls for an established northwest corner.

The plain intention of the parties at the execution of the deed was to convey the land up to that rock which they had planted as á muniment of boundary. This is further manifested by the fact that Allison and the plaintiffs, who are his widow' and heirs at law, occupied and cultivated the land up to the rock from the date of the Cooley deed in 1897 to 1912, when this defendant, who had purchased from Forrest in 1905, for the first time claimed the parcel of land in controversy.

There is another principle of law, in the nature of an estoppel, which may be invoked in behalf of the plaintiffs.

*587Cooley, tb© grantee in tbe deed, wrote tbe deed, measured and located tbe land, and planted tbe monument, and, as long as be owned tbe land, acquiesced in plaintiffs’ possession up to it, as did bis grantees.

Having bimself surveyed' tbe land, so to speak, under designated lines and corners, marked and established by bimself, Cooley and those claiming-under him are bound by bis own ad-' missions and acts, and cannot be permitted to controvert tbe legal effect of bis own conduct to tbe prejudice of tbe plaintiffs, especially after long acquiescence. Barker v. R. R., 125 N. C., 599. It is said in that case:

“There is a clear distinction between cases where tbe parties themselves have definitely located tbe land, and where it is merely sought to locate it by outside testimony not in tbe nature of admissions.”

We think this distinction is recognized inferentially in Massey v. Belisle, 24 N. C., 177, where tbe Court says on page 177: “Tbe stakes may be real boundaries when so intended by tbe parties, but it is a settled rule of construction with us that when they are mentioned in a deed simply, or with no other description than that of course and distance, they are intended by tbe parties, and so understood, to designate imaginary points. If tbe facts are true, as testified upon tbe trial, we think tbe plaintiff is clearly estopped from denying bis location of tbe land, and, therefore, cannot recover.”

In bis concurring opinion in tbe same case, Chief Justice Fair-cloth, while differing as to what constitutes color of title, agrees that tbe plaintiff, having marked tbe corners at tbe time, is estopped.to contest bis own location of tbe land.

Tbe case we have is much stronger than that, for here tbe deed itself contains evidence upon its face that a northwest corner was establishedi by tbe parties, and tbe parol evidence excluded does not contradict or vary tbe terms of tbe description, but only tends to locate tbe spot where that corner was established.

How far this would avail, against a bona fide purchaser for value without notice, it is needless to discuss, as this defendant does not occupy that position.

*588The deed itself put him upon notice that there was an established northwest corner, and the evidence, if believed, shows that William Allison and those claiming under him occupied and cultivated'the land continuously to the rock up to 1912.

His Honor having erroneously excluded the evidence offered, his findings and judgment are set aside, and a new trial awarded.

New trial.