#### Doe on demise of Robert Campbell and other. v. Doe & McArth.

From Bladen.

A i^'J K vM-'-d after lis oiccaíie » '-goal, if ;¡o ai'eralioft be made i.iiíi¿ Lise knowledge and cjuscíií olthr. grantor ; and tíis pari, altered need not be registered to mate it colo’.xr oí’title, ¡br an unregistered deed, is colour oft’tie.

A tmsltbc i,t the course or distance of a deed slsov.kl not be permitted io difiopomt ilie intent oftbe parties, if that intent appears, and if the means of correcting ihc mistake are furnished either by a more certain description in the same deed, or by reference if) another deed con-tstííiing a more ceKifm description.

MjcdmenL The land in dispute was granted to Thomas L;k!í!:= «11 the 20thof February, 173ó, and in hr pa tent wsin described as being Sí (540 acres lying and being (in the North-East side of the North-West branch of Use Cape-Fear river, beginning at a Hickory on the rives' bank, ¿hence North 75° Nasi 160 chains to a stake; thcsico South 15“ Bast 40 chritin, thence South YH° West 160 chaina to an Ebm on the river bank, thence with the river to the first station.”

Tkoiawi Locke conveyed to Leonard Locke, and Lean ard Locke conveyed to Noill McArikoithese facta appeared from the recital in a deed from Led! iMlcArihur to his son Archibald McArthur for tito lands in dispute; this deed bore date .Tidy 4th, 1777, and under it Defendant claimed.

The Plaintiffs declaring their inability to deduce title by a regular succession of conveyances, relied «pon co« lour of title, and to support it produced two deeds : First, a deed from James Burgess to Farquhar Campbell, dated in 1789, for one moiety of a tract of land described ns follows 5 6i lying and being on the North-East side of the North-West branch of Cape-Fear river, beginning at a Hidcory, thence North 13° East 160 chains, thence Lorih 15° East 40 chains, thence South 70° West 160 *34chains to an Elm. on the river bank, thence with the river to the first station, containing 640 acres, patented by rjijlomag jjopke oíi tho goth day of February, 1735.”

Secondly, a deed from James Hogg, dated in 1789, conveying to Farquhar Campbell, one moiety of the land included in the patent to Thomas Locke.

The hickory and dm mentioned in the deed from Burgess, it was contended, are. the same which are referred to in the grant to Thomas Locke.

Farquhar Campbell, in the year 1798, took an actual, adverse and exclusive possession of the lands which had been granted to Thomas Locke, and this possession was continued by himself, or those claiming under him, without interruption, until February, 1807. Some time between 1798 and 1807, Farquhar Campbell died, having devised the lands to his son Robert and James, as tenants in common 3 James died after the death of his father, leaving four children, who, together with Robert Campbell, are the lessors of the Plaintiff.

In February, 1807, the Defendant acting under a power of attorney from Archibald McArthur, before mentioned, obtained the possession and has since kept it. This action was commenced in 1807.

Archibald McArthur was born in 1772,* in 1782 he went to England, and has continued beyond seas ever since.

Defendants contended below, first, that the deed from Burgess to Farquhar Campbell was executed with blanks for the day of the dato and the consideration, and that these blanks were filled up after the execution of the deed. In proof of this, they produced two copies of the deed, certified by two different. Registers, in which the day of the date and the consideration were omitted, and relied further on different shades in the ink with which the deed was written. Secondly, that the deed did not cover the land in dispute, if the boundaries were run as expressed therein according to course and distance, and that here no reason was furnished for a departure from *35course and distance. Thirdly, that Archibald McAr-thur being beyond seas, was not affected by the statute of limitations, and that his title was saved by the exception hi the statute.

The Court, leaving it to the Jury as a matter of fact, to ascertain what was the sitúa don of ‘Burgess’ deed at the (hue of its execution, stated as fhe law, that if the deed had been executed in blank, and the omissions were afterwards supplied, unless with the knowledge and consent of the grantor, the deed would thereby be avoided and could not operate as colour of title: that colour of title included, at least in its definition, such a deed or instrument, as if executed by the real owner, would pass the title in the land.

As to the second objection, the Jury was instructed, that ail rules of construction and boundary were intended to ascertain and advance the real design of the parties 5 and that a mistake in a course or distance should never be permitted to disappoint the intent of the parties, if that intent appeared, and the menus of correcting the mistake were furnished, either by a more certain description in the same deed, or by reference to another deed containing a more certain description. That here, as the deed called for the beginning of Locke's patent, as well as the him, the termination of the third line of said patent ; and as the deed declared the intention to be to convey the GnO acres of land paten hid by Locke, the Jury, if it was necessary, in order to accomplish the intent of the parties, should disregard a mistake in the courses of the de<-'i5 and pursue the rea! and true boundary of the jPCttent, to arrive at the corner Film on the river.

As to the statute of limitations, the Court charged, that as Archibald McArthur was of full age in the year 1793, and was under no disability but that of being beyond seas, at the time the adverse possession commenced ; and as the saving in the statute for persons beyond, seas, has the proviso that they shall “ within eight years after the title or claim becomes due, take benefit and sue *36for the same,” ana as be had not done so within eight yeari3i ^ie was clearly out of the saving of the statute.

There was a verdict for the Plaintiffs, and Defendant move(j for a new trial, on the grounds of misdirection in law, and a finding contrary to evidence. The motion was overruled, and from the judgment rendered Defendant appealed.

Bewii'dl and Mordecai for Appellant — Gaston for Ap-pellee.

The only objection taken in this Court was, that an altered deed, not registered, after alteration, was i cad in evidence, and regarded as colour of title.

To which it was answered, that the objection being formal and known to the party on the trial below', could not, for the first time, be urged in an Appellate Conn as a cause of new trial — (Cowp. 597 — 3 Burr. 1244s' — l .Mass. Hep. 2S7 — Bailee Justice, in 1 Term Rep. 719.)

And also that the late Supreme Court had held that an unregistered deed was colour of title.

Taylor, Chief-Justice.

This is a motion for a new trial on the part of the Defendant, who alleges that the Court misdirected the jury, and that tho jury found against evidence. It appears from the case, that (he father of the lessors of the Plaintiff was in possession of the land claimed, more than seven years, claiming under a colour of title by means of two deeds iron, "" — ‘"wss and Hogg, each for a uioiety of a tract of land granted io Thomas Locke, on the 20th February, 1735. There is' no controversy relative to the deed from Hogg; it is not denied, that his moiety was duly conveyed by it, but the questions arise altogether from Burgess’ deed. It is said, this deed was registered having two blanks, one for the date, and the other for the consideration, and that as this fact appears from two official copies of two dif*37ferent registers, it follows that the deed must have been filled up since that time, and is thereby avoided by this alteration. Whether the deed was altered after its execution, was properly submitted to the jury as a question of fact; and if it was so altered, they were instructed that ¡he. deed was thereby avoided, unless the alteration was made with the consent and knowledge of the grantor. In this instruction, I think the Judge is clearly sustained by undoubted authority. Where A. & B. sealed and delivered a bond to C,and after, the name and addition of D. was interlined, and he also sealed and delivered the obligation, with the consent of all parties, it was held to he a good obligation of all three — (2 Lev. 35) This case is cited by Comym in his Digest, and has been repeatedly recognized as law. There is a case in 1 Anstruther 228, where, a bond was executed with blanks for the name and sun;, and delivered by the obligor, to an agent for the purpose of raising money ,* the Plaintiff lent a sum, and the agon! filled up the blanks with that sum, and the Plaintiff's name, and delivered the bond to him, and on non eslfachtm pleaded, the bond was held good. And a party executing a bond, knowing that there are blanks its it to he filled up, by inserting particular names or things, must be considered as agreeing, that the blanks may thus be filled up, after lie has executed the bond-(Ventris, 185.) The objection that even if the deed were filled up with the consent of the grantor it ought subsequently to have been registered, has been decided on in this Court; and it has beer, held that an unregistered deed will make a colour of title.

I am also of opinion, that the charge of the Judge was not less unexceptionable in stating, “ that a mistake in a course or distance should not be permited to disappoint the intent of the parties, if that intent appeared, and if the means of correcting the mistake are furnished either by a more certain description in the same deed, or by *38reference to another deed containing a more certain de~ scription.”

The land conveyed by Burgess to Campbell is desig-i)ap.(] by these several particulars, viz : — a moiety of thei tract therein after described, the courses and distances, a hickory at the beginning, an elm on the river bank, or the end of the third line, and a reference to the patent of Locke, bearing date on the 20th February, 1735, which consequently includes the boundaries and location of that land. There is an evident mistake in some of the courses and distances described in Burgess’ deed to Campbell, so that if the land were laid off according to them, it would not comprehend a moiety of Locke’s 640 acres j but there is also so much correspondence between the lines and those in Locke’s patent, as to shew an intention to- convey a moiety of that land. In the corner trees, however, there is no mistake, for the same in number and quality, are called for both in the deed and patent, and thus a reference to Locke’s patent, renders certain what an incorrect description of the lines had rendered uncertain. So that I cannot think any difficulty will present itself, in ascertaining the land intended to he eon • veyed by the deed, when recourse is had to the patent. The grantor has referred to this, as the means of correcting any mistake, in the description of the land, and of ascertaining what his intent was, in making the deed — . (5 Wheaton, 359, 362.) Words shall always operate according to the intention of the parties, if by law they may j and, if they cannot operate in one form, they shall operate in that, which, by law, shall effectuate the intention. This is the more just and rational mode of expounding a deed, for, if the intention cannot be ascertained, the rigorous rule is resorted to, from necessity of taking the deed, most strongly against the grantor.

It is supposed that the Judge erred in instructing the Jury that Burgess’ deed, called for the beginning of Cocke’s patent» whereas it calls for a hickory, and that *39vt called for the elm, the termination of the third line of the patent: whereas, it merely calls for an elm on the ,. „ „ river bank, thereby assuming two lads, or which, prool should have been made for the consideration of the Jury.

If is true, that the deed does not in so many words describe the trees or boundaries of the patent, nor does it appear that any witnesses were called to prove their identity, but the construction of deeds is a question of law' for the Court, and if from a comparison of the lines, it appeared that the trees called for in the deed, were the same with those called for in the grant, it was only stating the conclusion, instead of the premises warranting it. is it not a fair intendment and necessary construction of the deed ? There are but two trees on the bank of the river as boundaries of Locke’s patent, a hickory and an elm. When Burgess’ deed, therefore, conveying a moiety of the 64 0 acres, designates a hickory as the beginning and an elm as the termination of the third line, it is not a forced construction to consider them as the same, more especially when the line leading from the elm, does, both in the deed and the patent, go to the beginning. Upon the whole, it appears to me that the charge was correct, and that the law has been duly administered in this case. I therefore think a new trial must be refused, and the judgment affirmed.

H aul and IIeNbeiisojv, Judges, concurred.