grant to H., which they undertook to locate, the first call of which was for a Spanish oak as the beginning corner and from this by a course and distance to a pine and the second was by a course and distance to "a stake in his [FI.'s] line." The surveyor who attempted to locate the grant testified that the course and distance carried him to a point at which he found no pine but that he found a stump three or four feet away, and that the second call by a course and distance carried him to another point but that he made no attempt to locate the H. line called for. Held, that upon the introduction of the grant and survey, defendants were entitled to go to the jury without proof of a reasonable effort to locate the H. line before relying on the course and distance.

Appeal from Superior Court, Polk County; Peebles, Judge.

Action by Ellen O. Moore against Thomas McClain. From a judgment for plaintiff, defendant appeals. Reversed.

The following is a copy of the plat referred to in opinion:

ages. Plaintiff introduced a grant from the state bearing date November 28, 1809, followed by a chain of title. She then introduced testimony tending to locate the boundaries of the grant, one Edwards testifying that beginning at A and running to B he found marks along the line, which appeared to be 10 or 15 years old; passed a stone and pointers at B; found pointers at C and traced the line at the beginning. Plaintiff introduced one Joe Moore, who testified that he was 64 years old; was present when line was run; was about 17 years old. When they reached the stack corner, about 200 yards from the house, they sent witness to Daniel McClain's house after an ax and they cut into a tree and found marks in it. Witness saw the tree last year; some rocks there now, did not remember whether they put any down there or not. McClain's house was northwest from corner. John Matthews testified: That McClain wanted him to cut some

Plaintiff sued in ejectment, alleging title to a tract of land described in the complaint by metes and bounds; that defendants were in the wrongful possession thereof. She also alleged that the land was heavily timbered, and that the defendants were cutting and removing valuable timber therefrom, praying for an injunction restraining defendants, etc. A restraining order was issued, and upon the return day continued to the hearing. Defendants denied each allegation of the complaint. Issues were submitted to the jury directed to the inquiry of title, possession and dam

boards when going east and he told me not to cut anything on the right-that was Moore's land; 25 years ago. Plaintiff rested. Defendants introduced a grant to John Hughes bearing date February 26, 1793, calling for "beginning at a Spanish oak on a hill on the north side of Green River"; showed by the surveyor that he began at the Spanish oak at the point on the may marked 1, and run by course and distance to 2, thence to 3, thence to 4, and if the Spanish oak was at the beginning corner the course and distance would include the land in dispute. He testi

fied in regard to the marks on the Spanish oak and that the second corner called for in defendant's grant was for a pine; that he found no pine at the end of the distance which gave out in a field, but that 3 or 4 yards beyond he found a stump. The second call in the grant by course and distance carried him to 3; that the call was by course and distance "to a stake in his (Hughes') own line"; that he, the surveyor, knew of no line at 3; that he made no inquiries as to where the Hughes line was; did not attempt to find it, was not asked to look for or locate it by either plaintiff or defendant. George Lynch testified that he was 56 years old, was raised at Dan McClain's on land inside of defendant's grant, as located by the surveyor; that he had known the Spanish oak corner which he pointed out to the surveyor, since he was a boy, and that it had at all times been known and recognized by McClain and the adjoining owners of land as the McClain beginning corner of the Hughes grant.

At the conclusion of the evidence the defendant's counsel asked the court in writing to charge the jury: "That there is no evidence as to the location of the Hughes line or tract of land at the time of the date of the John Hughes grant introduced by the defendant dated in 1793, and therefore, the call in said grant cannot control course and distance." This prayer was refused by the court, and defendant excepted. The court then charged the jury, that if they were satisfied that the plaintiff had located the calls of her grant and had been in possession of said boundary, as testified to by the witnesses, it would be their duty to answer the first issue "Yes," unless they found from the evidence that the defendants had located the John Hughes grant as claimed by them and as indicated on the map, and that, in passing upon the location of the Hughes' grant, they should take into consideration and be governed by the natural boundaries called for. That if they found the beginning to be at the Spanish oak, the next corner would be a pine, and if they could find a pine from the evidence they would go to it regardless of course and distance. The next call in the grant was course and distance, which would carry them to 3, if not controlled by natural boundaries; but, as the call from 2 to 3 was south to a stake in his, the grantee's own line, his line when located would control course and distance, and that the surveyor had testified that he had made no effort to find the Hughes line called for in the grant, and that no effort so far as he knew had been made to locate it. His honor charged the jury that as the defendant's paper called for the Hughes line it was the defendant's duty to make reasonable efforts to find it and charged the jury that the burden was upon the defendant to locate the Hughes line, before he could establish the boundary by course and distance. The de

fendant excepted. After the jury had retired, his honor informed counsel that he was of the opinion there was no evidence to support the allegation that the defendant was in possession when the suit was brought and that he would charge the jury to answer the second issue "No." Counsel for both parties consented thereto. The jury found the first issue for the plaintiff, second issue by consent "No." That the defendant had trespassed upon the land and assessed the plaintiff's damages at $40. Thereupon his honor rendered judgment that the plaintiff was the owner and entitled to the possession of the land, a full description whereof is set out in the judgment, and that she recover of the defendants and their surety upon their defense bond the sum of $40 and costs, to all of which the defendant duly excepted and appealed assigning as errors: The refusal of the court to give the first instruction asked. The instruction that the burden was upon the defendant to show where the Hughes line was and to make reasonable effort to find same, before he could rely upon the course and distance to fix the boundary of his grant. In permitting the plaintiff to recover the land described in the complaint after it had been found by the jury that the defendant was not in possession of the land in dispute when the action was brought. The defendant appealed from the judgment rendered.

Smith & Schenck, for appellant. Gallert & Carson, for appellee.

This

CONNOR, J. (after stating the case). The plaintiff introduced testimony tending to show the location of the Alexander grant of November 29, 1809, within the boundaries set out in the complaint. She does not connect herself with this grant, but shows a chain of title beginning February 10, 1834, with which she does connect herself, showing possession, etc. The defendants for the purpose of showing title out of the state, at the date of the Alexander grant introduced a grant to John Hughes, dated February 26, 1793, which they undertook to locate. grant called for a Spanish oak as the beginning corner. There was evidence tending to show the location of this oak. The surveyor testified that it was marked as a corner. The first call from this oak was by course and distance to a pine; the second call was by course and distance to "a stake in his [Hughes'] line." The surveyor testified that the course and distance called for carried him to a point marked "2" on the plat; he found no pine there, found a stump three or four feet away. The second call by course and distance carried him to 3; he made no inquiries as to the Hughes line, made no attempt to find it, nor was he asked to do so by either party. He testified that following the call he reached 4, thence to the beginning. If this testimony is true, the Hughes

grant covers a portion of the Alexander grant and shows title out of the state at the date thereof.

So far as the controversy is presented upon this appeal and the exceptions to his honor's ruling, the sole question is as to the manner in which the defendant may locate the Hughes grant. The plaintiff having shown a prima facie title, it behooved the defendants to show a superior title. The burden of proof upon the issue was upon the plaintiff. She alleged title, and the defendants denied it. Showing a prima facie title did not shift the burden of proof upon the issue, but imposed upon the defendants the duty of "going forward" with their evidence. The distinction is clear and well illustrated in Meredith v. Railroad, 137 N. C. 478, 50 S. E. 1, and Board of Education v. Makely, 139 N. C. 31, 51 S. E. 784. When the defendants introduced the Hughes grant, they undertook to show that it covered a portion of the locus in quo. It became necessary for them to show the beginning-this being a natural object. After doing so and it appearing that the calls were for course and distance and natural objects, it is too well settled to admit of controversy that if there was a discrepancy in the calls, that which was most certain, which is the natural object, would control. The judge so instructed the jury, and he further imposed upon the defendants the duty of making reasonable search for the natural objects before they could rely upon the calls for course and distance. To this ruling the defendants excepted, and this is the point for determination.

Ruffin, C. J., in Harry v. Graham, 18 N. C. 76, 27 Am. Dec. 226, discussing this question, says: "There is but one principle applicable to questions of this sort. If there be but one description in the deed, that is to be strictly adhered to. If there be more than one and they turn out upon evidence not to agree, that is to be adopted which is the most certain. Course and distance from a given point is a certain description in itself, and therefore is never departed from unless there be something else which proves that the course and distance stated in the deed was thus stated by mistake. It has been held that a tree called for and found not corresponding to the course and distance, establishes the mistake, and is itself the terminus. So of the line of another tract. But if the tree be not found, nor its former situation identified, it is the same as if the call for it had been omitted, for there is no sign but the course and distance. Such is the case here, no tree being found, nor its locality proved otherwise than it is shown by the deed to have stood at the end of a line of a certain length. The description is therefore the same as if the call had been for a stake or an imaginary point at the end of a distance." The rule is laid down by MacRae, J., and approved in Redmond v. Stepp, 100 N. C. 212, 6 S. E. 727: "If only course and distance 54 S.E.-25

are given and the beginning is found, the land will be run by course and distance. But when in addition to course and distance, natural objects, marked trees or lines of other tracts are called for, these, when shown, will control course and distance and must be reached by a further extension or shortening of the line so as to reach such objects, trees or adjoining tracts. If none such can be found, then the course and distance must be the guide in fixing the boundary." is the correct view and has, in actions of ejectment and trespass, been so recognized. It would impose upon those claiming, as in this case, under old grants, a heavy burden to require them to find or make search for natural objects or very old lines, before they could make at least a prima facie location of such grants.

This

The plaintiff contends that there was evidence tending to show that, in truth, the Hughes grant did not cover any part of the Alexander grant. If this is correct, such evidence should have been considered by the jury. The record does not profess to set out the language used by the judge but says that in effect, he charged the jury that "the burden was upon the defendants to locate the Hughes line, before they could establish the boundary by course and distance." This may not correctly express his honor's views or instructions, but we must take it as we find it in the record. We think that the instruction was erroneous. It not appearing from the survey that there was any discrepancy in the calls of the grant, the call for course and distance would control. If there was evidence, as contended by the plaintiff, the question should have gone to the jury under proper instructions. The plaintiff's counsel cites in support of the instruction Hill v. Dalton, 140 N. C. 9, 52 S. E. 273. That case gave us much anxious concern. The ques tion was presented, in regard to the burden of proof, in a proceeding under the proces sioning act, for the first time. As we then said, the plaintiff was the actor; he set forth his line and insisted that it should be so declared and established; he therefore carried the burden of proof on the issue. The grant contained three calls, course and distance, a white oak in Jas. McKoughour's line. The survey by course and distance did not show any white oak or other line. Evidence was introduced by the defendant locating the McKoughour's line. The sole question was where, in this condition of the evidence, the burden of proof lay. Apprehending the difficulty which might arise, if the principle then announced was not restricted to the single case of a processioning proceeding, which is anomalous and always perplexing, we said: "We confine our ruling to a proceeding for procession for establishing a disputed line." We certainly did not intend to introduce a new rule of practice into the trial of other cases. We are impressed with the wisdom of adhering to well-settled rules

affecting the title to real estate. It is to be regretted that the evidence and language of his honor's instrutions were not sent up. We could more clearly see the bearing of the instructions upon the real merits.

We are of the opinion that his honor fell into error in holding that the defendants must locate the Hughes line before they could establish the boundary of the grant by course and distance. We can see no reason why, upon the introduction of the grant and the survey, they may not have gone to the jury. Of course the plaintiff was in no sense bound by the defendant's evidence. She may have insisted and asked the jury to find that the survey did not correctly locate the grant. It was their province to decide the question of fact, where the two lines were. His honor Instructed the jury to find that the defendants were not in possession of the locus in quo when the suit was brought. This put an end to the plaintiff's action, if in ejectment only. His honor was of the opinion that the complaint set forth facts sufficient to constitute a cause of action for trespass, and proceeded to judgment accordingly. While complications may grow out of this course of proce dure, and the effect of such judgments, as estoppels be doubtful, we cannot see that any harm came to the defendants in this case. The exception is not pressed in the brief. As the cause goes back for a new trial, the pleadings may be so amended as to present the issue as for a trespass, if they do not in their present form do so.

The plaintiff says that no harm came to the defendants by reason of his honor's ruling, because they did not connect themselves with the Hughes grant. The evidence in that respect is not set out, if there was any. The record indicates that the parties desired to present the single question raised by the exception. It may be that the merits of the controversy depended upon proof of possession ousting the owner of the paper title. However all of this may be, for the error pointed out there must be a new trial.

(141 N. C. 507)

GUDGER v. WHITE. (Supreme Court of North Carolina. May 22, 1906.)

1. DEEDS-DESCRIPTION-CONSTRUCTION.

Where one deed refers to another for a description, it is to be construed as if it embodied the deed referred to, and the premises as therein described will pass thereunder.

[Ed. Note.-For cases in point, see vol. 16, Cent. Dig. Deeds, § 323.]

2. SAME.

A deed from plaintiff to H. contained a partial description of the land in controversy, and recited that a deed had been made to such tract by R., the then owner, and that the deed in question was made to such tract to better perfect the title, and was to be a quitclaim deed thereto. Held, that such deed incorporated the R. deed as a part of its description, and therefore constituted neither title nor color of title_beyond the boundaries defined in the deed by R.

3. SAME-DEFINITENESS.

A deed describing the land as beginning at a point where two certain roads intersected, and running so as to embrace a front of 44 feet on the B. turnpike road west of the branch, and running back to the mountain, the branch being the southeastern line, also all land opposite said lot to the river, giving a frontage of 44 feet. It also recited that a deed had been made to this same tract by R., and that the deed in question was made to better perfect the title and was to be a quitclaim. The deed by R. described the land as lying next to the branch, exclusive of the road running up the branch from the B. turnpike, and beginning at a point where the two roads intersected, and running so as to embrace a front of 44 feet on the B. turnpike back to the mountain and up the branch, embracing the width of 44 feet, including all the land next the branch not occupied by the road and the same width below the turnpike road, fronting on the lower side of the road next to French Broad river, and running the same width, 44 feet, down the road, the whole including a half acre. Held, that such deeds, when construed together, described the land with sufficient definiteness.

Appeal from Superior Court, Madison County; McNeill, Judge.

Action by J. M. Gudger, Jr., against H. A. White. From a judgment for defendant, plaintiff appeals. Reversed, and new trial awarded.

The plaintiff sued for a parcel of land now in the possession of the defendant and designated on the map as A, 1, 2, 3, 4, C, B, and back to A, the beginning. He showed title out of the state by a grant issued to John Gray Blount in 1796 for a large body of land, and then introduced a deed from Z. B. Vance to Samuel Shelton, and from Shelton to Pinkney Rollins, and then a succession of deeds from Rollins and those claiming under him, connecting the plaintiff with the title of Z. B. Vance. All these conveyances covered the locus in quo. There was evidence tending to show that the plaintiff and those under whom he claims had held adverse possession of the land in controversy for 30 years. The plaintiff testified that he had been in possession of the land in dispute, which is covered by the said deeds, continuously since 1895, and built tenements and a blacksmith shop thereon. The defendant took possession of the land lying between the old and the new channel of the Hardwicke branch in January, 1905. The defendant introduced a deed from the plaintiff to J. K. Hardwicke, dated June 9, 1898, and duly registered. The plaintiff objected to this deed, so far as it was attempted thereby to convey the second tract described therein, as the description was too vague and uncertain to convey any land. Objection overruled, and plaintiff excepted. The second tract is described in that deed as follows: "Beginning on a point where the two roads intersect, and runs so as to embrace a front of 44 feet on the Buncombe turnpike road west of the branch, and running back to the mountain, the branch being the southeastern line. Also all the land opposite said lot to the

river, giving a frontage of 44 feet; a deed having been made to this last-named tract No. 2 by Pinkney Rollins, the then owner. This deed is made to this tract to better perfect the title, and is to be a quitclaim deed thereto, and only to warrant title against those claiming under me, and no further." The defendant also introduced deeds and the records of judicial proceedings from which it appeared that the title of Hardwicke had vested in him. He introduced evidence tending to show that the run or channel of Hardwicke branch, called for in the deed of the plaintiff to Hardwicke, had changed in 1892 in consequence of a large freshet in the streams of that section, and that at the time the said deed was made, in 1898, the course of the channel was along the line designated on the map at A, 1, 2, 3, and 4; while there was evidence for the other side that in 1892 or 1893 the freshet caused the branch to break through its banks and form three prongs, one of which ran along and near the line 3, 2, 1, and that there was running water in the old channel at the time the deed to Hardwicke was made by the plaintiff in 1898, and until about two years before the trial, and that Hardwicke never had any possession east of the old channel (A, B, C). The defendant built a stable and put up a rock wall on the disputed line, after being notified by the plaintiff not to do so until the true divisional line was located. The plaintiff introduced in evidence the record of an action brought by J. K. Hardwicke on December 17, 1897, against the widow and heirs of Pinkney Rollins, for the purpose of having re-executed the deed of Pinkney Rollins to J. K. Hardwicke, which had been lost. At August term, 1898, a judgment was rendered in that suit granting the relief and directing the judgment to be certified and registered according to the statute in such cases made and provided, the judgment to have the same effect as if the deed had been properly re-executed. The description in the complaint and judgment, in that case, of the land which was alleged and found to have been conveyed by the Rollins deed of May 15, 1875, is as follows: "Lying and being in the town of Marshall, county of Madison, and state of North Carolina, and being the same tract of land on which the said plaintiff now resides, above the old Baird place, next to the branch, exclusive of the road running up said branch from the Buncombe turnpike road, and beginning on a point where the two said roads intersect, and running so as to embrace a front of 44 feet on the Buncombe turnpike road, and running back to the mountain up the branch, embracing the width of 44 feet, including all the land next the branch not occupied by the aforesaid road, and the same width below said Buncombe turnpike road, namely, 44 feet, fronting on the lower side of said road next to French Broad river, and running the same width, namely, 44 feet, down the

road the whole boundary here mentioned, to include one-half acre; and it further ap pearing to the court that a deed in fee simple was duly made and acknowledged by Pinkney Rollins and wife, Hester Rollins, to James K. Hardwicke, dated on or about the 15th day of May, 1875, conveying the above described tract of land," etc.

The plaintiff requested the court to charge the jury: (1) That the description of the second tract in his deed to Hardwicke is too vague and uncertain to pass any land or to be aided by extrinsic evidence. (2) That as to the land in dispute the deed from the plaintiff and wife to Hardwicke, referred to in the last preceding special instruction, constitutes neither title nor color of title beyond the boundaries defined in said Pinkney Rollins deed therein referred to. (3) That the expressed design and intention of, the deed from J. M. Gudger, Jr., and wife to Hardwicke, in so far as it relates to the land in controversy, being to perfect said Hardwicke's title to the land embraced in the Pinkney Rollins deed therein mentioned, the said Gudger deed had no effect to create a new boundary line between the lands of said Gudger and said Hardwicke, and the said deed cannot be held to embrace any land not included within the boundaries of said Pinkney Rollins deed. (4) That when a stream, which is a boundary, from any cause suddenly leaves its old bed and seeks a new one, such change of the channel does not affect the boundary, which remains, as before the change, in the middle thread of the original channel, although there may be no running water therein, and it is the duty of the jury to ascertain where the old channel was and to find its middle thread to be the true boundary. The court refused to instruct the jury as requested in the first three prayers, but gave the instruction contained in the fourth prayer. At the request of the defendant the court, among other instructions, charged the jury as follows: "If the jury shall find as a fact from the evidence that on the 9th day of June, 1898, the date of the deed from J. M. Gudger, Jr., to J. K. Hardwicke, the main channel or thread of the Hardwicke branch was situated as designated on the map by the figures 1, 2, 3, and 4, you will then answer the first issue in favor of the defendant, and that the plaintiff is not the owner of the lands in dispute." It is not necessary to set out more of the charge, as the remaining portion is not material to the question decided. The issue submitted to the jury and the answer thereto were: "Is the plaintiff the owner and entitled to the possession of the land described in the complaint as amended? No." Judgment was entered upon the verdict for the defendant. The plaintiff, having excepted to the charge and rulings of the court adverse to him, appealed.

The following is a copy of the map re ferred to in opinion.