
    CALDWELL LAND AND LUMBER COMPANY v. J. R. ERWIN.
    (Filed 22 December, 1908.)
    1. Grants — Deeds and Conveyances — Descriptions—Fixed Corners— Subsequent Surveys.
    An instruction is erroneous when its effect is to ignore the calls of a grant under which a party claims, and adopts a line from a fixed corner subsequently made by the surveyor by construction and not by the actual survey upon which the patent was issued.
    2. Grants — Boundaries—Calls.
    In this ease the call in grant No. 893, “beginning at the S. W. corner of entry No. 3058, and running with the line of the entry.” refers to the line of entry No. 305S, upon which grant No. 895 was based. .(See chapter 173, Laws í,893.)
    
      Action tried before Ferguson, J., and a jury, at June Term, 1908, of Caldwell.
    Tbis is a proceeding under section 1709 of tbe Revisal, in wbicb tbe plaintiff filed a protest to an entry by tbe defendant of a'certain tract of land in Caldwell County, containing 300 acres, more or less. Tbe question is whether there was any vacant land within tbe boundaries described in tbe entry. Tbe defendant introduced in evidence a grant to George N. Folk, No. 893, tbe calls of wbicb were as follows: “Beginning on tbe hillside south of Lost Cove Creek, S.'W. corner of entry No. 3058, and running north with tbe line of tbe entry, crossing Lost Cove Creek, 300 poles to a stake in J. M. Webb’s line; thence west with bis line 20 poles to bis S. W. corner; thence no'rtb with bis line 20 poles to a stake, corner of No. 3069, and thence by various courses and distances (given in tbe grant) to tbe beginning.” There was evidence tending to show that tbe southwest corner of entry No. 3058 was at a chestnut, and that if tbe lines of grant No. 893 should be run north 300 poles with tbe line of tbe entry to Webb’s line, and thence west with Webb’s line to bis southwest corner, there would be no vacant land within tbe boundaries of defendant’s entry. J. M. Houck, who surveyed the land under tbe warrants, testified that be ran a line east from Webb’s southwest corner 20 poles, and established a corner and located tbe line from that point to tbe chestnut, tbe beginning corner, by construction and not by actual survey. He also stated that tbe calls, courses and distances in grants numbered 889, 893 and 895 correspond with tbe lines as surveyed by him.
    Among other instructions given, tbe court charged tbe jury as follows: “If you should find from tbe evidence that tbe surveyor, who surveyed under tbe warrant of tbe entry, actually located and established a corner by driving a stake and marking witnesses to it at 20 poles east of Webb’s corner, then tbe grant would run to it.” Tbe jury returned a verdict for tbe defendant. Tbe court, being of tbe opinion that tbe instruction above quoted was erroneous, set aside tbe verdict and ordered a new trial. Tbe defendant excepted and appealed.
    
      
      Jones & Whisnant for plaintiff.
    
      Lawrence Wakefield and Mark Squires for defendant.
   Walker, J.

The new trial was properly ordered by the court, as the effect of the instruction was to ignore the calls of the grant and adopt a line which was not run and marked at the time the grant was issued, and with a view of making it one of the boundaries of the grant. Tbis case is not witbin the principle established in Cherry v. Slade, 7 N. C., 82; Safret v. Hartman, 50 N. C., 185; Fincannon v. Sudderth, 140 N. C., 246; Elliott v. Jefferson, 133 N. C., 207. It will be seen upon an examination of these cases that none of them sustains the contention of the defendant that the instruction .of the court was correct and the verdict should stand. Tbe rule that a line actually run by the surveyor, wbicb was marked and' a corner' made, entitles the party claiming under the patent or deed to bold accordingly, notwithstanding a mistaken description of the land in the deed, presupposes that the patent or deed is . made in pursuance of the survey and that the line wbicb was marked., and the corner wbicb was made were adopted and acted upon in making the patent or deed, and therefore gives them controlling effect. Elliott v. Jefferson, supra. Tbe court below, in Safret v. Hartman, supra, charged the jury “that notwithstanding the black oak was not called for in the deed, yet if it was marked as a corner to the land conveyed, at the time of the conveyance, the line should be extended to it, regardless of course and distance.” Tbis Court held the instruction to be erroneous, and adverted to.the rule as we have already stated it. It does not appear in tbis case that the patent was made in pursuance of what the surveyor testified was done by him, but, on the contrary, the call is north from the southwest corner of entry No. 3058 with the line of that entry to Webb’s line; thence west with bis line 20 poles to bis southwest corner; thence north with bis line 20 poles to a stake, and thence with the several courses and distances to the beginning. We do not know what the evidence will be at the next trial, and therefore cannot determine what the boundaries of the grant are. We are of the opinion, though, that the call in grant No. 893, namely, “running with the line of the entry,” does not refer to the line of entry No. 3059, upon which grant No. .893 was issued, but to the line of entry No. 3058, upon which grant No. 895,was based. This appears clearly from the wording of the two grants. Chapter 173 of the Laws of 1893 provides for the correction of the calls of the entries by the descriptions in the grants issued to George N. Folk, and declares the latter to be “the true and proper descriptions.” This act was passed before the entry of the defendant had been laid. The court did not err in setting aside the verdict and ordering a new trial.

No Error.  