#### JOHN G. JONES v. C. W. BUNKER.

Province of Court and Jury-^Boundary.

, The construction of' a written instrument' or other contract whose* terms are ascertained should he determined-by the judge, and it is error' to refer such construction to the jury,

2- Where a tract of land is described as “beginning at a point of a ridge near some large rocks, on the south east-side thereof, about two chains east of Stewart’s creek, and runs up the ridge north,” ¡fee., and there is evidence tending to show large out-cropping rocks at each end of the ridge, the beginning will be fixed at the south-east end or side of the ridge, and the reference to the rocks will be considered as descriptive only, and as meant to aid in ascertaining the position of the point entire south-east side of the ridge, and not to give undue prominence to-the rocks.

(Burnett v. Thompson, 13 Ired., 379; Marshall v. Fisher, 1 Jones, 111; Clark v. Wagoner, 70 N. C., 703 Johnson, v. Ray, 72 N. C., 273, cited and approved.)

Civib Action to recover laud, tried at Fall Term, 1879,. of Surry Superior Court, before Gilmer, J.

Verdict and judgment for defendant, appeal by plaintiff.

*325 Messrs. George B. JEveritt and Reads, Busbee & Busbee, for plaintiff.

Messrs. Watson & Glenn, for defendant.

Smith, C. J.

‘Several exceptions taken by t'he appellant •appear -on the record of which it is necessary to consider one only, which in our opinion is decisive of the case.

The plaintiff claims the land in dispute under a succession of deeds extending back to the year 1818, the last of •which was executed to himself on November 5th, 18.71,’and •.a continuous possession of the respective owners down to the defendant’s entry in 1874' or 1875. One of the deeds constituting his claim of title, made by the sheriff of Surry in the year 1847, pursuant to a sale under execution conferring authority on William Slade, describes the boundary line in these words: “Beginning at a point of-a ridge near some large -rocks, on the south-east side thereof, about two chains east of Stewart’s creek, and runs up the ridge north;” &e.,and this description is followed in the-deed from ■Slade to Solomon'Graves, -whose executors by virtue of his ■will convey to the plaintiff. The location of the ridge called •for is conceded to be-as laid down in the surveyors plat, ■and there was evidence tending to show large out-eropping rocks at each end ©f the ridge, and the contention was whether the beginning was at the rocks on the south-east •side of the ridge,-or on the south-east side of the bed of rocks, cropping out at the north-east end of the ridge. It was admitted in the argument that if the line started at the- southeast end or side of the ridge, as the plaintiff insisted, his right of recovery could -not be resisted,-and the controversy is thus narrowed down to the simple inquiry as to its position as described in the sheriff’s deed.

At the trial before the'jury, the defendants counsel argued that the proper interpretation of thbse descriptive words required .the beginning .to be .fixed at .the .south-east side *326of- the bed of rocks, and that the word “ thereof” referred to-its nearest antecedent, the róeles-, and not the nidge, and asked of the court an instruction to this effect. The court declined so to- charge, and told' the jury it was a question for them to determine upon consideration of all the- evidence-bearing upon it. The plaintiff,'although- he did not ask any specific-ruling; favorable to his own contention as to the legal import of the language of the deed, assigns for error that the court did not construe it and tell th-e-jiury that the-word- “ thereof” meant the ridge and designated the beginning at its south-east side..

It is too well settled to need- the support of argument or-authority that the construction of a written instrument or-other contract whose terms are ascertained-, is a matter of law to be determined by the judge and not left to-the uncertainty of a jury verdict. It was then his duty to put-an interpretation upon the words, and tell the jury whether-they required the location of the beginning of the boundary line at the one or the other place, or at some other place-different from either, and it was error to leave the question to the jury. The determination of this point is eonc-lusive-of the controversy,, since in the one-case the locus is within,, and in the other-without,, the plaintiff’s-boundaries.

Our opinion upon this question is with the plaintiff andi supports his construction of his deed.

1. It is m-anifest a point in. the- ridge-is intended, near-some large rocks, and more definitely pointed out as being on the-south-east side of the ridge. The reference- to- the-rocks near by is descriptive only,, and is-obviously to aid in ascertaining the position of the point on the south east side-of the ridge, and not to give undue- prominence to tire rocks-themselves..

2. This interpretation is supported by the further description that it is “ about two chains east of Stewart’s creek,”' and the line thence “runs up the ridge north,” the ridge,*327being still the prominent object, and the line commencing at its south-eastern side, in order to fulfil the two conditions of running “up the ridge,” and in a northern direction. These requirements do not admit of the beginning on the north-west end of the ridge, for then the line extended north would not run up the ridge but leave it altogether.

3. A different construction involves the substitution of an object mentioned only for the purpose of identification in place of the point which the reference only seeks to ascertain, and thus there would be two points, and obscurity resulting from the very words employed to produce certainty in the description.

. It is the province of the judge to tell the jury what are the boundaries of the land conveyed according to the terms of the description; of the jury to ascertain where are the objects called for and by which the boundaries are controlled, and to fit the description to the thing described. Burnett v. Thompson, 13 Ired., 379; Marshall v. Fisher, 1 Jones, 111; Clark v. Wagoner, 70 N. C., 706.

The jury ought to have been directed to find the beginning of the line at a point on the south-east side of the ridge, near to a bed of rocks if such could be found, and then run it up the ridge a northern course, pursuing the other calls of the deed. For failing so to charge and leaving the matter to the jury, he committed an error of law which is presented for revision on the plaintiff’s appeal. Had the error been corrected bythe verdict and thus no injury done the appellant, no exception therefor could be entertained. Johnson v. Ray, 72 N. C., 273. But the error was not thus remedied and the plaintiff is entitled to a new trial. Judgment reversed and new trial awarded. This will be certified.

Error. Venire de novo.