#### DOE ON THE DEMISE OF MARTIN ICEHOUR vs. WILLIAM RIVES.

Where, on the trial of an ejectment, it appeared that one of the corner trees could not now he found, running the course and distance called for, but it was proved that many years ago a former owner of the land declared that a stump in a certain pond was his corner ; Held, that the Court below did not err in instructing the jury, that if this tree had been marked as a corner, at the time of the original survey, then it would control the course-and distance; but, if subsequently marked, because the owner could not find the corner originally marked, (hen the course and distance would not be controlled by it.

The cases of Reed v. Shenclc, 3 Dev. 65, and McNeil v. Massey, 3 Hawks 91, cited and approved.

Appeal from the Superior Court of Law of Mecklenburg County, at the Fall Term 1847, his Honor Judge Pearson presiding.

The following case was sent up by the Judge below.

On the trial of this action of ejectment, the defendant admitted himself in possession, and it was admitted that the defendant’s title papers covered the land in dispute. It was also admitted, that the lessor of the plaintiff had the oldest title, and the only question was, whether bis title covered the land in dispute.

*257The deed of the plaintiffs lessor began at a white oak, then 5 degrees 55 East 96 poles to a white oak, then 5 degrees 11 East to a black oak, tyc. The beginning white oak and the third corner, black oak, were admitted, and, if the first line extended to the end of the 96 poles, it was admitted that aline to the third corner, black oak, would take the land in dispute. No corner tree was found a.t the end of 96 poles, and the defendant endeavored to control the distance and stop the first line at the end of 57 poles, near a small pond, and, it was admitted, that if the line stopped in or near the pond, instead of extending the 96 poles, then a line to the third corner, black oak, would not take in the land in dispute. The defendant called on one Boyd, who swore that, in 1788, he was a boy, when Wilson, under whom the lessor claims, was surveying the land — that Polk, under whom the defendant claims, was also along — that they commeneed at the beginning white oak and ran along the first line to a small pond, when one Thomas Beatty, who was with them, and who is now dead, pointed out a stump in the pond, and said, “that stump was made a corner by me and Polk.” Wilson made no objection, and the surveyor then turned and ran from the stump to the black oak. Boyd said there were no marks on the stump, nor did he understand that there were any marks on the tree, before it was cut down ; but the stump was fixed on as a corner, long after the original survey, when it was ascertained, that the corner tree called for could not be found. One Taylor swore, that, several years before this controversy arose, Moses Beatty, who is now dead, shewed him a stump in the pond, and told him he had heard both Wilson and Polk say, more than forty years ago, that that stump was Wilson’s corner. Several witnesses swore, that one Samuel Wilson, who was one of the heirs of John Wilson, the person spoken of by the witness, Boyd, and who is now dead, some fifteen years ago poin-ted-OBt *258the black oak as one of his father’s corners, and, while the surveyor was running a straight line from the black oak to the pond, said “that was where his father’s line ran.” Other testimony was offered, which it is not necessary to state, as it would not alter the case.

The Court charged, that distance was to be observed, unless there was some more certain description to control it; that if the jury were satisfied, that, at the time of the original survey, a tree, standing in or near the pond, was marked as a corner, that would control the distance and cause it to stop short nf Ae 86 poles. But, if the jury came to the conclusion, that no tree was marked in or near the pond, at the time of the original survey, and that the testimony offered merely established the fact, that, after the original survey, the pajties, who became entitled to the land, not being able to find a corner, fixed on a stump and agreed that it should be a corner, that fact would not be sufficient to control the distance called for in the lessor’s deed, and the plaintiff would have a right to go to the end of the 98 poles.

There was a verdict for the plaintiff, and from the judgment thereon the defendant appealed.

Osborne for the plaintiff.

Thompson and Wilson, for the defendant.

Ruffin, C. J.

The Court holds the instructions to the jury were right, for the reasons assigned in the Superior Court, and according to the case, Reed v. Schenck, 3 Dev. 45. At first it seemed, that, after so long a reputation as to the corner and lines, founded upon the repeated declarations of the owners near the time of the survey and patent, the jury might and perhaps ought, upon the strength of it, to have found, that in fact the corner tree did stand in the pond, and that there was a mistake in the call for course and distance. The cause might, indeed, *259have been put to the jury with express directions, that they might act on those declarations and reputation of the corner tree, as evidence, that it was originally, in fact, as contended for by the defendant, upon the principle laid down in McNeil v. Massey, 3 Hawks 91. But, in truth, the question was left to the jury in that manner, though their action was not, perhaps, called so distinctly to the force of the evidence, as -it might have been. Yet the evidence was left to them, and the point, where the corner really stood, or whether there was any mistake in making it, was one of fact, and proper for the jury; and it was not erroneous to submit the point, with the evidence, without more particular instructions than those given, when they were not requested.

Per Curiam.

Judgment affirmed.