
    M’Adoo vs. Sublett.
    Where there are contradictory calls, the one for ah established line and the •other for course: Held that the call for the line will control th.e call for course.
    Where there were two lines known as Montfort’s line, and on one of those lines stood “M’Culloch’s corner/a red oak:” Held that in a deed calling for Montfort’s line at M’Culloch’s corner, a red oak, these words “M’Culloch’s corner, a red oak,” designates which of the lines was meant.
    Where a party is misled by the statement of another in regard to the boundary of his land, and enters into an agreement relinquishing his rights upon the belief of such statements: Held that the court will set aside such agreement, whether produced by mistake or fraud.
    This bill was hied by Samuel M’Adoo on the 25th of September, 1834, in the circuit court of Rutherford, and subsequently transferred, under the provisions of the act of 1835, ch. 41, to the chancery court at that place, against the defendant, Sublett. The prayer of the bill was, that an agreement entered into between the parties for the purpose of settling a question of disputed boundary should be set aside, the parties restored to their original rights, and complainant be quieted in his title. The agreement divided the disputed land between Sublett and M’Adoo. It was registered, and Sublett took possession of the land in dispute by virtue of it. It appeal’s by the testimony that the State of North Carolina granted to Joseph Montfort á tract of three thousand eight hundred and forty acres of land. On the 18th and 19th April, 1816, Benjamin M’Cul-loch and one Gordon caused the grant to be processioned ^ Braghga^ a surveyor of Rutherford county, who made the line of the grant to run somewhat north of what was understood to be the original line. Gordon had this line, so run, registered. It does not appear that M’Oulloch claimed his boundaries by virtue of this processioning.
    On the 29th July, 1828, Gordon sold to Sublett from six hundred and forty-two to six hundred and seventy acres of land, lying on the north boundary of Montfort’s tract, and described in Gordon’s deed to Sublett as beginning at M’Cul-loch’s corner, a red oak, running thence west with the north boundary line of Montfort’s original tract four hundred and ninety-two poles to a hickory, &c. &c. When Gordon sold to Sublett he showed him the processionary line as his line. “M’Culloch’s corner, a red oak,” stood on what was understood to be the original line of the Montfort grant, and if the lines of Sublett’s tract conformed to the calls of his deed they would not cover any of the land claimed by M’Adoo, and which had been surrendered by him by virtue of the agreement. If run by and with the processionary line of Bra-shear, it would cover some thirty acres of land in the possession of M’Adoo for a long term of years and claimed by him. M’Adoo claimed under Donelson, the grantee of the State of North Narolina, who owned the tract adjoining Montfort’s on the north, and his deed called to begin at “Benjamin M’Culloch’s corner, a red oak,” and “to run thence west with Montfort’s' north boundary line,” See. Sublett took possession of the land, in accordance with the proces-sionary line, and a controversy arose, and thereupon a survey was attempted in the presence of the parties. .Sublett stated to M’Adoo that if the line was run in pursuance of the calls of his deed it would include the land which he claimed. M’Adoo did not read the deed, nor does it appear that he knew the truth in regard to the calls of Sublett’s deed. Upon the statement made by Sublett, M’Adoo, by the advice of his neighbors, agreed to divide the disputed territory, which was done accordingly, and an agreement entered into to that effect. This cause was argued at the August term, 1838, before chancellor Bramlett, and the bill dismissed. The decree, however, was omitted to be entered, . and at the following term the decree nunc pro turns, , . „ ° * entered, as follows:
    •cBe it remembered, that this cause came on to be heard on the - day of August, 1838, before the honorable Lunsford-M. Bramlett, chancellor, and upon the bill, answer, replication, exhibits and proof; and the court being of the opinion that the charges on the bill, of fraud and contrivance in procuring the compromise, and the execution of the written agreement between the parties, which the bill prays may be set aside, are denied in the answer and not sustained by the proof; and the court being further of the opinion, that there was no surprise in the obtaining from said complainant said agreement; it is therefore ordered,-adjudged and decreed, that complainant’s bill be dismissed, and that he pay the costs of this suit,” &c.
    From this decree the complainant prosecuted his appeal to the supreme court.
    
      Ready, for the complainant.
    The leading question to be decided in this case is, did Sublett procure the written agreement from M’Adoo to divide the land in controversy by false and fraudulent representations? He admits that he stated to M’Adoo that his deed covered all the land he had caused to be run out for himself, and this fact is abundantly proven by numerous witnesses; but he alleges that he read the-calls of his deed to complainant, and that complainant examined the deed. This allegation of the answer is clearly dis-proven- On the contrary, it is proven that the deed was neither read nor examined during the controversy on the premises. This deed itself shows that its calls do not cover the land in controversy; and if the fact be as stated by Sublett in his answer, and as stated by one of the witnesses, that Gordon, at the time of the sale to Sublett, showed Sub-, lett, as his corner, a rock, which is described as being some eighteen or twenty poles north of M’Oulloch’s red oak corner, it is most manifest, by the subsequent execution of the deed, that whatever land he may have showed Sublett, and wherever he may have represented his line as running,. that he did not intend to convey to him one foot north of the red oak. This course is consistent with the course ot a seru-pulous man not desirous of selling land with doubtful title, re(j 0£1^ jg a wep known and long established corner tree, and was no doubt inserted in the deed as designating what were the boundaries of the land sold. The deed, then, does not cover the. land, and was not intended to cover it; and as Sublett represented that the calls of his deed did cover it, and as complainant did- not examine the deed, it is manifest that he was misled by the assertions of the defendant. If the complainant was misinformed and misled as to a material fact a court of equity will afford relief. 1 Story’s Equity, 155: Garland vs. The Bank of Salem, 9 Mass. 408. And if both parties were innocently mistaken as to the fact of what land the calls of Sublett’s deed did cover, and acting upon this mistaken view of the fact, M’Adoo did sign the agreement, a court of equity will interpose and afford relief by setting aside the agreement and restoring M’Adoo to his original situation. But the testimony in this case makes it much stronger than one of mere mistake of one or of both parties. Sublett knew his deed did not cover the land sur-< rendered by M’Adoo, and his intention to defraud is clearly established by the proof: and lor this fraud' the agi-eement must be declared void, and the parties restored to their rights. The complainant should be quieted in his title by a decree of this court,,
    
      Meigs, for defendant.
    I. Sublett is guilty of no misrepresentation, because his deed calls for the north boundary of Montfort’s tract; and though it should even be true that the tree called for stands south of that boundary, still he can claim to it, because a call for an old. line, is a controlling call.
    2. But if it should appear, which is by no means admitted^ that he did misrepresent this fact, still the complainant is not entitled to the relief sought. Sublett’s deed was on record, and was as accessible to the complainant, as to the defendant; so that whether it covered the land in controversy was a question equally open to the investigation of both, and equally within the competency of their knowledge. If it did no.t cover it, inasmuch as there was no pretence that Sublett had . r had seven years possession, there was no matter oí dispute , , , , .... . . , . between them; but to be relieved in equity against a misrepresentation, it must not only be of something material, but it must be of something in regard to which the one party places a known confidence and trust in the other, It must not be a mere matter of opinion, equally open to both parties for examination and enquiry, and where neither party is presumed to trust the other but to rely on his own judgment. 2 Story’s Eq.', sec. 192-197; Laidlovo vs. Organ, 2 Wheat. 178; 4 Cond. Rep. 79.
   Green, J.

delivered the opinion of the court.

The bill charges that the complainant owns six hundred and seventy-one acres of land in Rutherford county defined by marked lines, and that he has been in possession of the same for sixteen years, under a deed from John Donelson, the grantee; that his deed calls to begin at Benjamin M’Cul-loch’s corner, a red oak, on Joseph L. Montfert’s north boundary line, near Bradley’s creek, on the north side; thence north one hundred and nineteen poles, &c. The south-west corner of the tract called for in the deed is described as a locust and iron-wood on Joseph Montfort’s north boundary line; thence along the lane east two hundred and seventy-eight poles to the beginning. The bill alleges that Sublett, the defendant, who owns the land on his south boundary line, in March, 1834, proceeded to run out his tract which he had purchased from James Gordon, being part of the Montfort tract. In running the north boundary of his tract, Sublett run over about twenty poles on complainant’s tract, taking in thirty acres or upwards of his land. The bill charges that Sublett declared he was running according to the calls of his deed, and insisted that all the land included in the lines which he was running belonged to him, and threatened to sue complainant if he did not surrender the possession to him. Sublett did not show his deed to complainant, but during some of the interviews he took out a paper which he said was his deed, and holding it in his hands, read a part of it; but complainant charges tthat he did not read a de-of the land, or otherwise, did not read it correctly. Complainant had confidence in Sublett’s veracity, and did not SUSpect any misrepresentations as to the calls of the deed. Sublett declared he would sue if complainant did not surrender the land; expressed regret at having a law suit with a neighbor; and finally proposed that they should divide the land equally between them. Complainant’s neighbors, believing Sublett’s declarations, _advised him to accede to this proposition, which he thereupon agreed to do. A dividing line was accordingly run, giving to each party half the disputed land, of which the surveyor gave a certificate, which has been rigistered.

The bill charges that complainant has since discovered that Sublett’s deed does not cover any part of the land which was claimed and held by complainant, and that Sublett’s statement was untruly made, with a view to deceive and defraud him; that complainant's south boundary line, as described in his deed, is the identical line described in his'deed as his north boundary line, and each deed calls to begin on the same corner, Benjamin M’Culloch’s red oak. The bill prays that the agreement to divide the land maybe set aside, and that each party may be placed in the situation in which he stood before said agreement was made. The answer admits that the defendant, in running out his land, run over as much as twenty poles on the land claimed by the complainant, and admits he told complainant that his deed covered all the land he was running out. He admits that his deed calls to begin at M’Culloch’s red oak corner, and that a line ijun west from thence would not include the land in controversy; but E^eges that Gordon, from whom he purchased, showed him, and intended to sell him to Montfort’s line, as run and marked, by Bi'ashear in his processioning survey, and that he ought to go to Brashear’s line by the nearest route from the red oak corner, and thence west with said processioning line. He admits that the red oak corner was called for by mistake, and that he ought not to be hound down by it. He-denies all fraud, and insists that he read the calls of his deed truly. He alleges that he has been in the possession of the land in dispute ever since he purchased of - Gordon, and that Gordon had been in possession of it for ten or fifteen years; so that his title would be better than complainant’s in* dependent of the compromise.

From the evidence it appears that there were two lines, twenty poles from each other, that had been run and marked as Montfort’s north boundary. M’Culloch’s red oak corner stood in the southmost end, and the other, twenty poles north of this, was called Brashear’s processioning line. Those who held under Montfort’s grant had contended for Brashear’s line, and those who held under Donelson insisted that the southmost line, in which M’Culloch’s corner stood, was the true one. About the time Sublett’s deed was made a Jjmajority of those acquainted with the boundary were of opinion the southmost line was the true one. The answer states that “M’Culloch had become willing to hold his tract in the Mont-fort grant by boundaries further south than he had formerly done.” Gordon too, from whom defendant purchased, had relinquished possession of part of the land between the two lines, which he had formerly held.

With these facts in view, there is no difficulty in determining what land is covered by the deed from Gordon to the defendant. ' It calls to begin “on a red oak, M’Culloch’s corner, running thence west with the north boundary line of Mont-fort’s original tract four hundred and ninety-two poles to a hickory, elm and red oak, being Montfort’s north-west corner; thence south,” &c. -If there had been but one line' known and claimed as being Montfort’s north boundary, the call for such old line would have been a controlling call; and although the corner called for as the beginning might be south of that line, the defendant would have been entitled to go to such old line from his corner, and thence along it, ds called for in the deed. But here there are two lines which have been designated as the “north boundary of Montfort’s original tract;” and the southmost one, to say the least of it, was as well known by that designation as the other. In this southmost line, it is admitted, stands “M’Culloch’s fed oak corner.” When, therefore, Gordon, in his deed to defendant, calls for M’Culloch’s red oak corner, and running thence west with Montfort’s line, every word of the call may be complied wjth. If there were no such line from the red oak west, then the call for west and the call for Montfort’s line being contradictory calls, the call for the line would control the call for the course west. But here the plain sense of the call is, for the line known as Montfort’s north boundary, in which the corner called for stands. We think, therefore, most clearly, that Sublett’s deed does not cover airy of the land north of M’Culloch’s corner. We do not undertake to decide which of the disputed lines is the true one. For the pres* ent purpose, it is wholly unnecessary. If the dispute between the present parties had depended upon that question, it would have been a very proper subject for a compromise.

The next question is, what principles of law are applicable to these facts? That M’Adoo made the compromise under a mistake of the facts there is no doubt; whether Sublett mis-read the deed or not, the manner in which he did read it, together with his survey and claim of the land and threat to sue for it, unquestionably impressed upon M’Adoo the conviction that his deed covered the land in dispute, and that the old controversy about the line was to be revived. Under the influence of this belief, produced by his mistake as to the boundaries described in the deed, he made the compromise in question. This being the case, he is entitled to be relieved from the contract, and to stand' as though it had never been made. Even if the mistake had been mutual, if Sublett had been ignorant of the existence of the southmost line, and having been shown Brashear’s line by Gordon, believed it to be the line called for in the deed, still a contract made under such mutual mistake ought to be set aside. I Story’s Eq., sec. 142, et seq. It is not necessary that we should discuss the question of fraud'relied on by the complainant, inasmuch as the case may be disposed of on the ground above stated.

Let the decree be reversed, and decree that the compromise be set aside, and the .parties be placed in the situation they occupied before it was made. The defendant will pay all the costs.

Note. — The court refused to quiet the title of complainant, as prayed for in the bill, but declared in the decree that “this decree is not to be set up to the prejudice of either party in any suit at law hereafter to be brought to settle the original rights to the land in controversy.”  