Tucker v. Satterthwaite
Tucker v. Satterthwaite
Dissenting Opinion
dissenting: I cannot concur in the opinion of the Court. This is an action in the nature of trespass brought to try the title to certain lands, which depends upon the proper location of two grants, one to William Smith and the other to John Brinkley. The real question in dispute seems to be whether the line constituting the Northern boundary of the Smith grant aud the Southern boundary of the Brinkley gr ant runs from F,- an admitted corner, to G or to 44 as shown on the plat filed in the case The usual issues were submitted, all of which were found for the plaintiff.
The Court charged the jury as a matter of law that the line between the Smith and Brinkley grants must be run from F to 44 as contended by the plaintiff. To this instruction the defendant excepted, and it is the only exception necessary for us to consider in our view of the case.
The grants herein referred to are as follows:
1. A grant from the State to William Smith dated
2. A grant from the State to John Brinkley, dated October 21, 1782, containing the following description, the beginning corner being at. H or L: “Beginning at a pine John Jordan’s corner in the Bee Gum Island, then North 40 poles to a pine, then East 240 poles to a pine into Matthew Hodges’ line, then with his line South 132 poles to a pine into William Smith’s line, then with his line West 240 poles to a pine, his corner in Jordan’s line, then with Jordan’s line to the beginning.”
3. A grant from the State to John Jordan dated October 21, 1782, containing the following description, the beginning corner being at “V:” “Beginning at a pine, Jordan’s corner, then running the dividing line, John Brinkley and said Jordan, North 32 degrees East 232 poles to a gum in the Beaver dam swamp, then running agreed line between William Smith and said Jordan, North 42 degrees, West 200 poles to a pine, then agreed line the second time North 10 degrees, East 100
The surveys on which-these grants were issued were made as follows: The John Jordan survey on July 31, 1781; the William Smith survey on August 1, 1781; and the John Brinkley survey on October 9, 1781. While the Brinkley grant was issued before the Smith grant, it is based on a later survey, and calling for the Smith line must be treated as the junior grant. Therefore the 'Smith grant, must be located first, and its Northern boundary, being called for by the Brinkley grant, will become the Southern boundary of the latter survey. There is thus no conflict; but even if there were, the Brinkley grant would be compelled to give way under the Act of 1777, which provided that a senior grant issued on a junior entry should be void.
It is worthy of note that the Jordan and Smith surveys were made on consecutive days and were practically simultaneous. The lines between them were evidently run but once, and were in their origin dividing lines, constituting really one continuous boundary made of several short lines with slightly varying courses. This line seems never to have been disputed, and there is positive testimony that it has been repeatedly run with
There is positive testimony tending to show that there were marked trees at L, M, N and G, the corners of the Brinkley grant as claimed by the defendants, and that there were no marked corners except the common corner G, if it were located as claimed’ by the plaintiff. Among others, James Taylor, a surveyor, testified that he 1 ‘found an old marked pine at Bee Gum Island, corner of John Jordan grant, and beginning corner of John Brinkley grant, as claimed by the defendants at L; pine set upon its stump showed very old marks pointing South, West and North; at M, found a. gum marked as a comer; at N, found an old marked pine; at G, found a stake with three old marked trees as pointers, two pines and a gum. These marked trees were found in running the calls of the John Brinkley grant as claimed by the defendants. Found no marked trees in running the same grant as claimed by the plaintiff; both sides agreed that A was the beginning corner of the Smith .grant and also corner of John Jordan grant; at K, found an old marked pine, at H found an old marked pine, marked as a corner and pointing' the direction of the John Jordan grant lines, and this old marked pine is 40 poles south of the point G.”
The next question is, can we give effect to what appears to us the evident intent of the grantor, and keep within the established rules of construction as laid down by the courts ? I think we can.
In the construction of all deeds and grants, there is one essential object to be kept in view, and that is to ascertain the.true intent of the grantor and to give full effect to that intention when not contrary to law. All rules of construction adopted by the courts are simply means to a given end, being those methods of reasoning which experience has taught are best calculated to lead to that intention. Hence all • authorities unite in saying that no rule can be invoked, no matter how correct in its general application, that tends to defeat the intention of the grantor. This doctrine is of such universal acceptance as to require but few citations more to illustrate its extent than to prove its existence. It is well expressed by Chief Justice Shaw in Salisbury v. Andrews, 19 Pick., 250, 252, as follows: “In construing the words of such a grant, where the words are doubtful or ambiguous, several rules are applicable, all however designed to aid in ascertaining what was the intent of the parties, such intent when ascertained, being the governing principal of construction. And first,
In the leading case of Person v. Rountree, 2 N. C., 378, repeatedly cited and approved, the course of the first line was “North” from a creek; so as to put the entire tract on the North side. The marked line ran South from the creek, so as to put the whole tract on the South side of the creek. It was held that the marked line controlled. In Anon. v. Beatty, 2. N. C., 376, this Court says: “The beginning of the last line is not disputed, the only question is where it terminates. .... Should we run from the beginning of the last line but one, directly to the hickory at the point of the island, we leave .the marked line, proved to be marked as a boundary, and leave out a part of the land intended for the patentee. The Court, therefore, is of opinion that the marked line should be pursued till it strikes the island, and that from thence to the hickory along the edge of the island shall be deemed another boundary, and the last line be drawn from thence to the beginning.” The opinion corresponds with the suggestion that an entire line running from F to Y may have been
In Hough v. Dumas, 20 N. C., 328, this Court affirmed the judgment approving the charge of Chief Justice Pearson, then on the Superior Court, in which he said: “That if the jury were satisfied that the corner of the Gad tract at A was the corner called for in the Love grant, then they must go to A and it made no difference whether from I they went to T and then around to A, or whether from I they went to U, W, Q, A or to V, X, Q, A, for in either way after getting to A then the next call, which it was admitted would go to N, an established corner, and so around, would take in the land in dispute.” So in the case at bar if the jury believe G to be the true corner of the Smith grant, it makes no difference whether they go from F direct to G or from F to Y and thence to G, as either way “would take in the land in dispute.”
In the case of Credle v. Hayes, 88 N. C., 321, 324, this Court held that every line in the deed should be changed,'saying: “If the'calls of courses in the deed should be held to be the true boundary of the land conveyed, the intent of the parties would be entirely disappointed; for the deed, according to the calls, covers no part of the land evidently intended to be conveyed. In Long v. Long, 73 N. C., 370, an additional line was inserted by the Court, citing Cherry v. Slade, supra, and Shultz v. Young, 25 N. C., 385. In Clark v. Wagner, 76 N. C., it was held that a call in a grant reading as follows: “Beginning on a stake, the upper end of the island, thence south 35 degrees east 53 poles to a stake, the.lower end of the island,” which ordinarily would be a straight line, should be run from the upper end of
It is contended o.n behalf of the plaintiff that to locate a line, the original order of survey must be observed and followed, and that a posterior line can not be controlled by a reversed survey, citing us to Duncan v. Hall, 117 N. C., 443; Norwood v. Crawford, 114 N C., 513; Graybeal v. Powers, 76 N. C., 66, and Harry v. Graham, 18 N. C., 76. This is undoubtedly the general rule, but every one of these cases recognizes the principle that the rule does not apply where the posterior line is more certain than the prior 'line, and would more clearly indicate the intent of the grantor. See above cases. 18 N. C., p. 79, line 7; 114 N. C., p. 518, line 1 of opinion, and p. 520, line 2; 117 N. C., p. 446, line 3. Graybeal v. Powers does not seem to touch this point. I think the true rule is laid down in Harry v. Graham, supra, as cited by Chief Justice Pearson in Safret v. Hartman, 52 N C., 199, in which it was held that the survey could be reversed, to-vvit: -“It was decided in that case (Harry v. Graham, 18 N. C., 76) that a posterior line could not be reversed, in order, by' its intersection with a prior line, to show the corner unless such posterior line was certain, because to do so would be to extend the distance of the prior by the course of the posterior line. The chance of mistake resting on one or the other being equal, it was deemed proper to
In the case at bar, if the Smith boundary were reversed, it would follow along the well settled and marked line of Smith and Jordan to .the corner G, which the testimony tends to show has been actually surveyed at least four times, once by the devisor of the plaintiff. The beginning corner is presumed to have been selected by the' parties on account of its greater certainty, but any other corner that can be definitely ascertained is of equal dignity, especially as far as its connecting lines are concerned. Am. and Eng. Enc. of Law (2nd Ed.), p. 763 and note. It is a leading and well settled rule in the construction of all instruments, laid down by Gaston, J., in Shultz v. Young, supra, “that effect should be given' to every part thereof, and in expounding the descriptions in a deed or grant Of the subject matter thereof, they ought all to be reconciled if possible, and as far as possible. If they cannot stand together, and one indicate the thing granted with superior certainty, the other may be disregarded as a mistaken reference.” Washburn, supra (5th Ed.), p. 422, par. 37, and cases cited. In Ferguson v. Bloom, 144 Pa. St. Rep., 549, 565, the Court
For error in the instructions of the Court as above set forth, I think there should be a new trial.
Opinion of the Court
Oh the 6th day of November 1784 the State granted to William Smith, a certain tract of land in Pitt County, beginning at a gum in Beaver dam poco-sin and John Jordan’s corner, thence S. 59 degrees E. 240 poles; then N. 20 degrees East 242 poles, thence N. •66 degrees W. 80 poles, thence N. 60 poles, thence N. 25 degrees W. 120 poles to a pine, thence W, 290 poles to John Jordan’s line, thence South with Jordan’s line 40 poles, thence S. 35 degrees E. 130 poles, thence S. 20 E. 40 poles, thence S. 10 degrees E.-100 poles, thence to the beginning.
That on the 21st day of October, 1782, the State granted to John Brinkley a tract of land bounded as follows : “Beginning at a pine, John Jordan’s corner, in the Bee Gum Island, thence N. 40 poles to a pine, .thence E. 240
And on the same day, the 21st oC October, 1782, the State granted to John Jordan a tract of land, the second call of which strikes the William Smith grant at its beginning corner, thence calling for an agreed line with William Smith, N. 42 degrees W. 202 poles, thence N. 10 degrees E. 100 poles, thence N. 20 degrees W. 40 poles; thence N. 50 degrees W. 130 poles, thence N. 86 poles; which carries the Jordan line further North than the intersection of the Northern boundary of the Smith grant, as claimed by either party.
There appears to be some inconsistency in the calls and dates of these grants. The John Brinkley grant is dated October 21st, 1782, calling for the line of the William Smith grant, dated November 6th, 1784. But this is susceptible of explanation, from the fact that the Smith survey was made on the 1st day of August, 1781, and the Brinkley survey was made on the 9th day of October1, 1781.
The plaintiff is admitted to be the owner of the lands included in the Brinkley grant, and the defendant is admitted to be the owner of the lands included in the Smith grant. This being so the sole question depends upon the location of the Northern boundary line of the Smith grant. The Brinkley grant calling for this line of the Smith grant and thence with it West to Smith’s corner on the Jordan line, the boundary line of the Smith grant is necessarily the southern boundary of the Brinkley grant.
To locate the Northern boundary of the Smith grant, it is necessary to start at the beginning corner, which is admitted by both parties to be at A on the map, then to B, then to C, then to D, then to E and then to F. These points are all agreed to by both parties, including A. and F. The call from F is West 290 poles to John Jordan’s line, which the plaintiff says is at 44 on the map.
The defendant admits that a due west line run from F 299 poles would strike the Jordan line at 44 as claimed by the plaintiff; and that if this is the correct line, that* is, the Northern boundary of the William Smith grant, then the plaintiff is entitled to recover.
But the defendant claims that this is not the Northern boundary line of the Smith grant, and contends that it runs from F to G-. And the plaintiff admits that if this line from F to Gr is the true boundary line, that is the Northern boundary line of the Smith grant, she is not entitled to recover.
The defendant claims to arrive at the conclusion that G is the proper terminus of the line from F West 290 poles to the Jordan line, by reversing the calls and distances, from the beginning corner at A; or rather, by surveying the John Jordan line, North from A according to course and distance ; and the defendant claims that this will show G to be the proper terminus of the West end of the line from F. This contention of the defendant violates all rules of construction, as we are taught to understand them.
The first general rule, to which we know of no ex
E is the last admitted corner in'the Smith grant, and the call from this station is “West 290 poles to Jordan’s line.” There is no natural object called for to change the course, called for in the grant, as the only natural object called for in the grant is Jordan’s line,. and this is reached by running the course called for. The distance called for, to intersect the Jordan line at 44 (this being the course of the call) is only 9 poles more than the distance called for in the grant; while the distance from E to G the point of intersection claimed by the defendant, is 470 poles — 18o poles more than the distance called for in the grant. And when this line of 470 poles reaches G, it strikes the same natural object that it strikes at 44 in running the course called for in the grant. We admit that if the call in the Smith grant had- been West 290 poles to Jordan’s line, and that line could not have been reached except at G, that the line in that event should go from E to G. But that is not the case. 'The natural object called for is reached at 44 by running the course called for in the grant, at a distance of only 9 poles more than called for in the grant. But as has been said the defendant claims to arrive at the conclusion that G is the point of intersection, by reversing the line from A the admitted beginning corner of the Smith grant, and by running the John Jordan line North from the beginning corner at A.
This cannot be done for reasons appearing in the grant, nor can it be done for legal reasons established by the rules of interpretation in such cases. The physi
It cannot be reversed for the purpose of fixing the intersection of the line West from E for legal reasons. The Smith grant was run from A to B, from B to C, from C to D, from D to E, from E to E, and therefore the line from F and those following is what are termed. a posterior line, and cannot be located by a reversed survey. To locate a line, the original order of survey must be observed and followed; and a posterior line cannot be controlled by a reversed survey. This rule is too firmly established by numerous decisions of this Court to be disputed now. Duncan v. Hall, 117 N. C., 443; Norwood v. Crawford, 114 N. C., 513; Graybeal v. Powers, 76 N. C., 66; Harry v. Graham, 18 N. C., 76.
It is the Smith grant that we are locating, and it is the Northern boundary line which is in dispute. This line is not bounded by the Jordan grant, and cannot be located by a survey of that grant. This could not be done if the Smith grant had called for the Jordan line, South from the point of intersection, which it does not do. And the call in the Jordan grant for the line of the Smith grant can be no more than a declaration of Jordan that his line runs with Smith’s. The Jordan grant calling to run with Smith’s grant would be controlled by the Smith grant, and not the Smith grant by the Jordan grant. So it is plain that the Smith grant cannot be located by the Jordan grant.
By every rule of construction known to us, the dividing line between the plaintiff and the defendant must run from F West to the Jordan line, which is admitted to be at 44-. The judgment below must be affirmed.
Affirmed.
Reference
- Full Case Name
- FLORENCE P. TUCKER of R. S. Tucker v. J. H. SATTERTHWAITE and SALLIE (his wife) RHODA LITTLE, G. R SATTERTHWAITE, B. B. SATTERTHWAITE, J. J. SATTERTHWAITE and J. E. O'HEARNE
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- 7 cases
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- Published