#### Den on demise of Slade & Haughton v. Green and Ryan.

From Chowan.

The xitmost extent of the decisions in cases of boundary has been to permit marked lines or corners to be proven or shewn, when such marked lines and corners were not called for in the deed.

This rule violates principle, but it is now too late to vary it; but this Court will not go further into error and permit parol evidence to contradict or vary the description, where there is no mark or vestige left; and therefore where a deed calls for a course from a point on a river, different from the course of the river, and not calling for it, parol evidence shah not be received to vary the description, and shew that the line actually run at the timé of the grant, was the river.

This was an action of Ejectment, and the points in controversy arose on the title and boundaries of the Defendants, who claimed the lands under a grant from the State to Jonathan Jacocks, dated in 1786. The grant % was regularly authenticated by the sea! of the State, with the signature of the Governor, and countersigned by the Secretary, J. Glasgow. The only evidence that the grant had ever been recorded was an indorsement cm it in the following words, “ JVb. 91. Jonathan Jacocks, 300 “ acres — Bertie County, Recorded in the Secretary’s office. “ Jl. Phillips, P. Sec. Registered B. JV*. P. 14 B. dimos “ Turner P. I?. Bertie Co.” On the part of the Plaintiffs, it was objected in the Court below, that the grant should not he read, on the ground that there was not sufficient evidence that it had been recorded. The Court overruled the objection, and the grant was read.

The description given of the lands in the grant was as follows: 5Í A tract of land containing three hundred *219" acres, lying’ and being in our county of Bertie, in an “ Island in Roanoke river known by the name of Huff’s “ Island 5 beginning at a small cypress at the thorough- “ fare, then running soutii lifty-five cast forty poles up Middle river to a persimmon tree, then south fourteen “ east fifty-two poles, to a large cypress, then south twenty-eight west ninety-eight poles to a cypress, then “ south twenty-six west one hundred and fourteen poles “ to a cypress, then south fourteen east one hundred and ie seventy-one. poles to Roanoke river, then north twenty- “ five east ninety-eight poles, the i north twenty-two “ east one hundred and eighteen poles, then north twelve “ east five hundred and thirty poles, then along the iho-fci roughfare to the beginning, as by the plat hereunto “ annexed will appear.” The thoroughfare is a natural boundary, being a water communication connecting Kast river and Middle river, two branches of the Roanoke. It appeared from the pial annexed to the grant, that the last line but one was a straight line running north 12 east 530 poles to the thoroughfare, while the river did not run that course, but various courses — and it was contended that the line should run north 12 east, from the termination of tiie preceding line, agreeably to the terms of the grant and plat. The Defendants then offered in evidence the declarations of one of the chain-carriers named in the original survey, who was dead, as to Use courses actually run at the time, from which it appeared that the courses of Roanoke and Middle river were run, and not the course called for by the grant. The introduction of this testimony was opposed, on the ground that parol evidence was inadmissible to contradict, vary or explain the grant and description in the original plat, but was received by the Court, and a verdict was found for the Defendants. /i rule was obtained to shew cause why a new trial should‘not be granted, and on argument was discharged, and a judgment was rendered pursuant to ?he verdict, whereupon Plaintiffs appealed.

*220 Hogg for appellant.

The grant describes the line to the thoroughfare to be north 12 .east 530 poles : ,the parol evidence proves the line to the thoroughfare not to be north 12 east, bat the various courses of the river Roanoke. Shall the parol evidence be received ? The general rule is, that parol testimony is not admissible to vary, explain or contradict a deed, and the question here is, is that part of the deed descriptive of lines an exception to the rule ? It is not; it is within the same mis-chiefs. Testimony is necessary to shew where a real marked line or natural boundary is, and that line or boundary, shewn by a witness, though it vary from the written description, yet shall be the actual line ; for as it is no more liable to change or mistake than the written instrument, it shall obtain, and be the limit of the land. The reason that a deed is preferred to the evidence of a witness is, because it is certain, but a marked line and nativral boundary are equally certain, and have all the advantage over the deed, that the deed as an original has over a copy •, it is proper, therefore, that the marked line should be proved, and prevail, when established, over the description of it in the deed. An examination of the cases on this subject, will shew that this is all that has been done by our Courts heretofore. See the casescollected by the Chief-Justice in Cherry v. Slade’s adm’r, (3 Murphey 86 — 1 Ilayyv. 22, 378.) The case of Johnston v. House, (9, llayw. 301,) shews conclusively that it is the marked line that prevails, and not the intent of the parties to the deed; the witness is allowed to prove the line, but not to shew a mistake in the description. The cases of Reddick v. Leggat, (3 Mnrph. Rep. 539,) Orbison v. Morrison, (Ibid. 551,) and Tate v. Greenlee, (Ibid. 557,) do not alter this rule; they only shew that it is the province of the Jury to pass on the evidence proving where the natural boundary or marked line is, and then it is the province of the Court to construe the deed, that the whole description must be taken together, and that every deed must be construed so as to effect the intent of the *221parties as therein expressed; that artificial rules are so far useful only as they effect this purpose j that they are founded in common sense, and not in law, and are not to be followed when they would plainly control the meaning of the parties dearly expressed in the deed. It is not ruled in those cases that a deed is to be submitted to a Jury to ascertain its 'meaning, that is yet the province of the Court, and if there be no evidence but the deed, ft exclusively belongs lo the Court to pass upon it; hut If a boundary be called for, natural or marked, and there he parol evidence as to the location of it, that is a matter of fact, and of coarse for the Jury. The ihorongirfr.rc in this case is a natural boundary, and it is on evidence to he ascertained by the Jury, if the deed directs 1 hat we shall reach it by a line north 12 card, and no other evidence of that line be offered hut the deed, the Court shall direct the Jury, that in the absence of all oilier vests ¡no-kiy, it is (he meaning of the deed that the lina is north 12 east, and no other course; and to secura this right of vhe Court, no evidence shall be admitted to explain fhe deed, or shew a mistake therein. But it ?'-ay be shewn that the line north 12 east was run and marked, and if it be shewn, it is for the Jury exclusively to pass on the parol testimony, and to say whether the line be proved.

In the case before the Court ibero is no marked Sine; the deed calls for a course and distance only, the witness proved a natural boundary : the deed and the witness were a!, issue; the Judge below preferred the witness; it was his right to determirj as to the degree of testimony, and to say whether a deed was not to be preferred to parol evidence. The same question is now submitted to this Court.

Seawell for the appellee.

It io too late for us now to enquire whether the law, as settled, in respect to boundary, is right or wrong. It has been settled too long, and too many titles are now depending upon it, to justi*222fy an alteration of the rule. It is not therefore, at .all important, to 'xamine whether the decisions which have been made, are reconcileable to the principles which ap-j-0 (|ee{]s jn general; it is sufficient for us, that such has been the uniform determination of all our Courts for nearly fifty years : such a sanction as this acquires the force and effect of a statute, and ought not to be altered but by legislative interference.

The question in this case was purely a matter of fact— the boundary of Defendants’ grant •, and it has been admitted throughout the argument, that it was quite competent upon such enquiry to introduce evidence to prove a marked line, though different from the course called for in the deed. Now, where a corner is called for, as a “ white oak,” and the course in the grant would not lead to the white oak, there, such evidence would be surely admissible, upon common principles. But if there be no corner called for, or one called for and not found, the proof of a line marked is as much at variance with the deed, and with Common Law principles, as any other parol evidence ,- for the effect there, is not to prove the location of a corner, falsely described in the deed, but only as proof that the surveyor ran the line at such place. The only difference is, as to the weight of the evidence, for there can be none as to the object of its being introduced. A Jury would give more credit in some instances, to a plain marked line, than they would to the recollection of an old chain-carrier, but in both cases the object is the same. The surveyor who surveys is compelled by law to make out two fair plats; one of the plats is required by law to be annexed to the grant. The grant declares, that the State has conveyed to the grantee 300 acres of land, describes its situation and boundary, “ as by the plat hereunto annexed doth appeal-.” By reference to the plat, which is made part of this case, the river is made the boundary from the last course-called for, to the mouth ef the thoroughfare. By a re-*223ferencc to the plat, that is as much made part of the grant as if incorporated in it; and the grant is to have the same effect, as if the river had been specially called for, and ils true course mistaken. If this is not the case, l'or what purpose annex the plat ? and to what purpose refer to it ? Several cases are to he found in the hooks where the evidence of chain-carriers was admitted to prove the actual running- of the lines ; and in some of them parol evidence allowed expressly to contradict the grant. In Loflin v. Meath, the patent called for a pine. The Court permitted evidence of the declarations of deceased chain-carriorfi, to prove the origina! survey began at a cypress, and when it was contended that the party could not he permitted to depart from the words of the patent, and take the cypress corner as the beginning, ¡he Court said, “it would not say whether it was wise or not in the first instance to depart from the words of a grant 5 but many decisions of our Courts have allowed of such a departure, in order to fix the location where it really was made originally,” and added, “ it must now be taken as the law of this country, that notwithstanding any mistake or wrong description, either in the plat or patent, the party who is likely to suffer by if, may, by parol testimony shew the mistake, and prove the location of his land by testimony dehors the patent; and upon making clear proof thereof, shall hold the Sand actually laid off for him. Consequently, if the Jury are well convinced the original survey began at a cypress, they should find for Defendant.53 — (2 llay%v. 8 if.) In the case of Meshes v. Christie, the Court seems to consider it as a mailer of course, that a party is not to he injured by the mistakes of public officers. As to the admissibility of hearsay evidence, no objection having been raised on that ground, £ wUl only add, that Lojiin and Heath goes the full length of this case on every ground.

If the law as already expounded, and consecrated by" time, is found to be inconvenient, the remedy belongs to another part of the government,

*224Henderson, Judge.

This evidence, if admitted, must be upon some new principle, for there is nothing dehors the deed to create an ambiguity. It does not resemble that class of cases, where there is a line or a corner or a marked terminus called for, which does not correspond with the, course and distance mentioned in the deed. Upon such being shewn by parol evidence, or upon an inspection or an examination of the lands themselves, an ambiguity is created, which may be explained by parol. This is not to vary or contradict the deed, but to explain the ambiguity arising from the double description. Upon this principle, the cases of Person and Rountree and Eaton and Person may be explained, and numerous others of the same class. In the case of Person and Rountree, the oak called for at the termination of the first line, was actually south of the point of departure, which was designated by being marked as a corner, and there being a line of marked trees leading directly to it, and corresponding in distance. The line running from it to the next corner, was also marked and the corner ascertained. The next course and distance carried you to the creek, which was called for in the original grant. This ambiguity permitted the introduction of parol evidence to explain it. And there being no line running north (the course called for in the patent) from the beginning, nor any marked trees, nor any oak or other marked tree at the termination, nor any line of marked frees from the termination of the first line, or any other line on the north corresponding with those called for in the deed, parol evidence was admitted, and the stronger description prevailed, that is, the course yielded to other marks of locality. But it must be confessed, however much to be lamented, that our Courts have permitted parol evidence to contradict a deed. But the furthest they have gone, is to permit marked lines and corners to be proven or shewn, when such marked lines and corners were not called for in the deed. Thus, where course and distance only are given in a *225deed, without reference to marked lines or corners, pa-rol evidence has been admitted to vary that course and distance bf showing marked lines and corners. TV Inch is in fact contradicting a deed by parol, without there being an ambiguity ; for in this case the deed refers to no such marks or boundaries, as it does in those cases where not only course and distance are given, but marked lines and corners are called for. And it is now too late to vary the rule. But 1 am not disposed to go further into error by analogous reasoning, and to permit parol evidence to contradict or vary the description, where there is no mark or vestige left. In the former cases there are some checks to frauds and perjuries, to-wit, the marked lines and corners. In the latter there are none. For the former the Courts of Justice had something like an excuse, arising from our processioning laws, which require the processioners to observo natural boundaries in the first place, marked lines and corners in the second, (meaning no doubt, when called for in the deed) and course and distance in the absence of the other two, and from our laws directing surveyors to mark the lines and corners in surveying vacant and unappropriated lands. But I can see no plausible grounds for the admission of the evidence in the present case. It would place the boundaries of our lands at the mercy of perjured, ignorant or forgetful men. And I do not think a stronger illustration can be given of the propriety of rejecting the evidence, than the facts apparent upon this record. When running on the gut or thoroughfare, that thoroughfare is made the boundary. In this the survey- or was obeying the injunctions of the act. A boundary was at hand, and he availed himself of it in his description. When running next to the river, the lines are described by courses and distances, and they arc numerous and tedious. For had he designed to have made the river the boundary, the same causes which induced him to call for the gut, would have induced him to call for *226the river, I therefore think the evidence should not have been received.

There is another objection made in this case, that the grant to the Defendants for the land in dispute was not registered in the Secretary’s Office, under the act of 1777, ch. Í, sec. 11. It is directed to be registered there, but it is made the duty of the Secretary to have it done, and the grantee ought not to be injured by his neglect. By the same section, it is made the duty of the grantee to have it registered in the county where the land lies, and in case of neglect it is declared void. But this penalty is not referable to the first part of the section which directs registration in the Secretary’s Office. That would be inflicting the punishment upon the innocent which is due to the guilty. Wherefore, I am of opinion, that this objection cannot be sustained. But there should be a new trial upon the point first noticed.

HaxIi, Judge, and Tayuor, Chief-Justice, concurred.