
    BRADBERRY against HOOKS.
    THIS was an Action of Trespass- quare clausum fre-git, tried before Seaweu, J. at Wayne Superior Court, where a Verdict was found under the Charge of the Judge, - in favour of the Defendant. A motion for a New Tria! was made -and overruled : from which Judgment the Plaintiff appealed to this Court.
    ' The Case, as disclosed by the testimony, and the Clarge of the Judge, as stated by himself, were as follow :
    > The Trespass for which the Action was brought, was charged to have been committed between the parallel lines in the DIAGRAM B C and N Y. Hooks's 90 acre patent was* ten years older than the one under which the Plaintiff claimed ; Hooks's Í00 acre patent is seven or eight years younger than the Plaintiff’s. The boundaries of Hooks's 90 acre patent are delineated in the Diagram, | and the beginning is at the index>attE, then to F, G, Ip and I, at another index, and thence to the beginning. ||The location of Hooks's lop acre patent is also represented. controversy between the parties, was, Whether the STlain tiff’s patent shall stop $t Hooks's line at the letter Ñ, or should continue the same course to H&oks's line on the fi 
      other side of the patent at fetter O, and even on to B, a| some distance beyond.
    
      Where a p*» lent calls for the lines of anodicr patent, it must slop at the first intersection with the latter.
    The Court will npt'de-cide on the admissibility or effect of evidence respecting* the actual nin-ninjr a line, when such evidence was-not introduced; as such a question is purely ab-straCy
    
      The words of the Plaintiff’s patent were, “ Beginning at a pine, in or near his own line, and runs S. 240 poles? to a'stake in 'William Hooks'S line, then with or near his, line N. 73° E. 400 poles to a stake, then N. 305 poles ⅞ a pine, thence to the beginning.” '
    The Plaintiff proved old marked lines from between A and N, and one witness said that when they were surveying, the land since the present Action, he saw a chopped tree in Hooks’s 90 acre patent, about 40 or 50 yards from the corner, in imitation of a marked tree. Upon cross examination he admitted that he did not show it to the surveyor. Part of this patent Was bút thinly timbered.
    Several of the' Plaintiff ⅝ witnesses also prpved old marked trees between the corners S and R of Hooks’s 100 acre patent; and the Deposition of old Hooks, the paten-tee, statfcd, there were marked lines when his patent was run out. This patent of Hooks’s called for a beginning in Bradhernfs line; which beginning is at S. The same, witness said that Bradberry informed him that the patent in dispute was not surveyed till after the gran's fame out.
    The Plaintiff then proved by the same witness who spoke of the chopped tree in the 90 acre patent, that aÉouí 41 years ago he was shown a pine by Ritter, near C, as the corner of the patent in dispute, and it was then a marked tree resembling a corner. Ritter was one of the chain bearers to Bradberry's jratent. The same witness further stated, that the patentee informed him that the land was not actually surveyed till after the patent. They had begun to survey it; but it began to rain, and discovering that they encroached upon old patents, they retired to a house and there platted it. He also said, that he had seen the tree years back ; was hs well acquainted! 'With the pláce as with his yard; and thinks it was near C; but he could not find it since the dispute, nor discover any vestige of it, though he had frequently searched, and particularly for the surveyors : That it w§s in the goose pond, where there were a number of pines, some of which now appear to be dead. The witness added, that Ritter, the son in law of the patentee, claimed this goose pond under the patent; and upon his cross examination respecting what the patentee had said, he stated the assertion of the latter to have been, that his sesond corner was on the west side of Buck Marsh on the n illj and that Hooks’s Negroes had cut it down.
    The Judge, in his Charge to the Jury, directed them Sthat as the first line of the patent called for a stake in Hooks's line, and the second line callld for a course and distance running with or near Hooks's patent, to another stake, the patentee was precluded by the terms and ex*> pressions of the grant, from going beyond Hooks's first line ; but, in conformity with the words of the patent, must run to the corner called for, it being near or with Hooks's line as represented on the plat; and that the boundary of the patent to Bradberry could not be extended beyond the first line of Hooks's, though it might be proved by a hundred witnesses, that the land had. been surveyed before the patent issued, and that the surveyor actually run across, marking the trees, and made a corner. That the patent calling for a stake, which the Court considered as an imaginary point, and this tó be ⅛ Hooks's line, whether the distance be longer or shorter, the first line must terminate there ; and that the marked pine, if sufficiently proved to have been near C, was, for the same reason, to be disregarded ; and that, in point of I*aw, the Defendant,was entitled to their Verdict.,
    
      
      
    
    il'Jcrcieca, for the Appellantd
    The question to be decided by the Court in this cases is not whether the evidence offered by.th~ Plaintiff was auflicient or insufficient to entitle hint to a Verdict, but "whether admitting its sufficiency in point of fact, it was admissible in point of Law. In other words, the question ⅜, Whether, when a deed or patent calls for a stake in a line, any .evidence is admissible to show, that in fact,the line is not the place of termination. Another question is, Whether, when there are two lines, each answering the description of the patent, the patentee must, of course, stop at the line he first reaches, or, Whether he: may show, by evidence, that the second line is the one cabed for by his patent. The several matters of evidence stated in the case do not require to be noticed, as his Honour who tried the cause below gave it in Charge to the Jury, “That the patentee was precluded, by the terms ana expressions of the grant, from going beyond Hooks's first line, though it might be proven by a hundred witnesses, that the land had been surveyed before the patent issued, and that the surveyor actually ran across, marking the trees, and made a corner. That the patent calling for a stake, which the Court considered an imaginary point, and this to be in Hooks's line, the first line must terminate there; and that the marked pine, if sufficiently proven to have been near C, was, for the same reason, to be disregarded ; and that, in point of Law, the Defendant was entitled to their Verdict. Therefore, whatever impressions the evidence offered by the Plaintiff might have made on the Jury; although, from th$ evidence of the marked tree in the triangle, they might have been convinced that the surveyor did run across ; although, from the declarations of the patentee, extorted from the witnesses on the examination, that his corner was on the hill at B ;„ although the declarations of the chain carrier, that the pine near C, marked instead of the stake, was the third corner of the patent; and however strongly these impressions might have been Confirmed by the recognition of old Hooks, of the line B C as the patent line, within a few years after the patent was granted, by his calling Fox-a beginning in that line at the letter S, and by hiS evidence that it was a marked line at that time; yet they. were directed to forego all these considerations, and instructed, that in point of Law, the Plaintiff could not re- ' cover, but must stop when the first line of his patent first met Hooks’s line. ¡ Of this, as we humbly conceive, misdirection of the Court, we complain, and of this we ask a revision.
    And, first, we say, That if the Bradberry patent, instead of calling for a .stake in Hooks’s line, had called for .SxjyhsVline, that we might be permitted to show that the surveyor actually ran to another place.
    Secondly, That as the patent calls for a stake in Hooks's line, we may be permitted to show, that the stake called for, and to which the surveyor run, stands in another place.
    Thirdly, That as Hooks has more than one line, and we call for a stake in his line, we may show in which of his lines the stake stood.
    As to the first point. The only objection which can be raised to a party’s'showing by evidence that the actual location of his land varies from the description of the patent, is, that parol evidence is not admissible to contradict a deed. How it happened that this rule of evidence was first departed from in cases of boundary, is not necessary to be enquired into. Perhaps the reasons given by Moore, J. may be sufficient. Whether they are so or ubt, by the repeated decisions of our Courts it has become a rule, too well established to be overturned by any thing short of legislative authority, that the description contained in a deed or patent maybe corrected by parol testimony.
    
      Bradford v. Hill
      
       it was argued by Counsel and assented to by the Court, that where there was a Vriarked line, varying from the description given in the patent, that line should be regarded as the true one.
    In Branch v, Ward, the patent called for a south course. But upon proof that the surveyor actually ran north, that there was a marked line agreeing, in ^appearance, with the date of the patent, and a corner marked at the termination, the Plaintiff was permitted to recover. Here parol evidence was admitted to show, that though the deed ■ ailed for a south course, it was mistaken, and-that the surveyor ran north.
    In Eaton v. Person,
      
       the deed, after describing the nrst line, called for a course and distance which would leave out the piece in dispute. Evidence was given that the land was comprehended within three lines actually run and marked, and the river. And on this evidence the patentee prevailed, contrary to the terms of his deed.
    Here the parol evidence contradicted the course and distance of the deed, and threw out one line described therein and substituted two others; making the land a square, in stead of a triangle.
    In Beatty’s Case the Judge said, “ If a course and distance be called for, and there is a marked line and corner, variant from that course, which is proven to be the line made by the surveyor as the boundary, that marked line shall be pursued.” Here parol evidence was permitted fo contradict the deed.
    
      Person v. Roundtree, in note, decides that the marked line, really made as the boundary, is to be followed father than the course mentioned in the patent.
    
      Loften v. Heathy 
      
       the Defendant’s patent called for a cypress, as the beginning. He contended, that a pine was the beginning. Jloth trees were found. The Judge says, “ I will not say whether it was wise or pot, in the first instance, to depart from the words of a grant; but many decisions in our Courts have allowed of such a departure in order to fix the location where it really was made originally. It must now be taken as the Law of this cofetry, that notwithstanding any mistake or Wrong description, in either the plat or patent, the party may, by parol testimony, show the mistake, and prove the location of his land by testimony, dehors the patent.”
    
      Blount v. Benbury.
      
       "There have been many decisions in this country which warrant a departure from the line described in the deed or patent, to follow a marked line which the Jury believe the true one.
    The cases abundantly prove the uniformity of decision which has heretofore prevailed in our Courts, as to the competency of parol evidence to rectify a mistaken location contained in a patent. In not one of the cases mentioned, was there such a latent ambiguity, as by the Eng-glish Law, might be explained by parol. Every case is one of direct contradiction. It is a rule of evidence esta-Wished by our Courts, from the necessity of the thing and the situation of the country. It has been a,cted upon for years, and by every Judge who has presided in our Courts. Scarcely a question of boundary has b§en tried, where' this rule of evidence has not been made subservient to the purposes of justice and accurate investigation.
    Howls the present case to be distinguished from those which have gone before it, where this rule has prevailed ? Where a course and distance are called for in a deed, as the only guide to the point at which the line should stop, if the deed were solely to be regarded, no parol evidence could be received. Yet, in the case of Branch v. Ward, it was received. The case of' Lofien v. Heath went still further The patent not only called fora course and distance, but a cypress, as the beginning ;—an object susceptible bf being as clearly identified as the line of ano-ttrer tract. Yet the parol evidence was admitted to prove the'beginning ata pine on the opposite side of Ae tract, í)y which thh courses of the patent were reversed*Where» fore, then* shall we not be permitted to show), that instead of .stopping at Hooks's liqe, we actually ran on letter B. Even in the case of .natural boundary, which, by some gentlemen, is regarded with superstitious reverence, the same thing has been done. I do not now allude to the Cat-tail Case. Perhaps in that, there was something like a latent ambiguity; But as I have cited Nisi Prius Cases from books, I > will now cite one from rheinbr)* which in point of authority with me and with the people of this State, is equal to that of any decision made by a single Judge. In the Case of Glasgow v. Wooten, the Plaintiff’s deed called tor a beginning at Coientned Creek below the mouth of the Brushy Branchy then to) the Brushy Branch, and with the same, to where it crossed the back line of the patent, with the patent line to the. road ; then a course and distance to a maple in a swamp ; thence to the creek, and down the creek to the beginning. The Brushy Branch, a short distance from the mouthy forked. The north prong kept that name, and the south the name of the Spring Branch. The land in the fork . was in dispute. If the Plaintiff was confined* by the words of his patent, to follow the Brushy Branch, he had no title, nor unless he could follow the Spring Branch contrary to the words of his-deed. But according to the tru th of the Case,-the land was his. He proved by witnesses the declarations of James Glasgow, under whom he claimed, and these, together with other circumstances, convincing the Jury that, the Spring Branch was meant, though the Brushy Branch was called for, he, under the Charge of the Court, obtained a Verdict, contrary to the' terms & ex-preisions of his deed. Here was no latent ambiguity. There was a Spring Branch and a Brushy Branch. We called for the Brushy Branch, and were permitted to prove the 
      Spring Branch' as our boundary. What moré do we ásfc. here? We call for one placé as our boundary, and ash leave to prove another; ,
    ⅜- But if that, which ha's so long beep considered a rule of evidence in thi$ State, is now to be rejected, I apprehend that the gecond point is with the Plaintiff. If when a patent merely calls for the /¿⅛⅜ of another tract, no evidence can be received to nhow that the' line had a different termination, yet when it calls for a certain object, parol evidence pray show where that object is, dlthough the patent says it is to be found in the line of another tract. If indeed it can be established by any course of abstract reasoning or physical experiment, that a stake is a mere,imaginary point, then the calling1 simply for a line or for a stake in a linei will amount to the same thing. But áup-pose the patent had called for a noted rock, standing in a line, and the rock stood in fact out of the line, there can he no doubt but that the line would terminate at the rock. So of a tree : it makes no odds, whether alive or dead, Or whether it remained attached to the earth by the roots 6r driven in the form of a stake by the hands of man*—■ Wherever that rock, tree, or stake is, the line must terminate. The line in which it is described as standing, is a mere index to find the place. We do not contradict the deed by leaving the index : We fulfil it. You are sending your servant to 'Raleigh, who perhaps has not been accustomed to great cities ; and thinking 'that he may be endbarrassed in finding Brame’s Plotel, among the theatres, palaces, churches, reading rooms, museums, market places, and stone fountains, you telL him that he will find it in that section, division,,or ward of the city, which is called St. Domingo. Now this direction happens to be mistaken. But the object being to discover Brame’s Hotel, and St. Domingo being given merely as 'an index, the most obsequious servant would be justified in going to the place, disregarding the index. Now perhaps it may be, that frequently it may happen that a surveyor calls for a stake without planting one. If so, the point is imaginary ; and the line, where it is said to be, Is the boundary, ¿ut this is not necessarily the case. It is not a matter of Lazo that a stake is an imaginary point: It is a matter of fact fqr inquiry by á Jury. A& therefore the Judge,1 in his Charge to the Ju/y, state<& as a matter of Law, that a stake was considered as ari imaginary point, I humbly conceive for- this cause, there should by a New Trial.
    But if I am unfortunate upon this pointy and it is a conclusion, of Law, and, of course, not to be contradicted, that a stake is an imaginary point; and, therefore, that whether a line of another tract, or a stake in such a line, be called for, amounts to the same, I will pass on to the third point; only regretting in this place, for the sake of Mary's martyrs, that the fact does not correspond with the legal conclusion.
    Thirdly, The Bradberry patent calls for a course south 240 poles to Hooks's line. Now it appears from the plat returned by the surveyor, that a line rpnniog south from the beginning would intersect two1 lines of Hoqks's 90 acre patent. Upon what principle of Law are we pre-r vented from going to the second line, if the Jurybelieye that to be the correct one ? Here is a latent ambiguity. The patent calls fora litie It appears 1 there are two lines: Is it not like the case of a gift to your son- John, where you have two of the name ;' or a gift of White Acre, where you have two White Acres ? -Yet his Honour, in his Charge to the Jury, says that the patentee is precluded, by the terms and expressions of his grant, from going beyond Hooks's first line. It is true that the second line of the Bradberry patent-calls, “ with or near Hooks's.^ line N.T3° £.” And stopping' at the first lipe and run - ning the course called for, will he near Hooka's line which is about N. 30° E. Whereas if it runs on to the second* it will not run so near Hooka's line, which is about; if. 45° E. But this was matter of consideration for the Jury, as to the probability or improbability that Bradberry stopped at the first' line. It afforded no conclusion of Láw to prevent the Plaintiff explaining the ambiguity prising front the twp lines, 'And neither by this circumstance, nor by the, terms and expressions of the grant was the Plaintiff precluded irom going beyond fiogksls first line.
    Gaston, for the Appellee.
    .. As no,survey was actually made in the case, there is not only no reason for departing from the words of the grant*--but the utmost mischief would follow from establishing a precedent of the kind. If in any case such a departure is allowable, it can only be for the purpose of sustaining an actual location, which being once established, furnishes a standard by which-to correct the mistaken description in a grant. There the transition is from error and .mistake to certainty, and to a fact by which land was, originally appropriated. Here it would be from the certainty oí a giant, to a plat proved to be not the result of an actual suivey, but made by the surveyor in a house, before the Unes were run. The Charge of the Judge was therefore correct, in instructing the Jury that the Law was in favour of the Defendant. But even were the Charge incorrect in any of its general statements, as to what the Law would have been if the lines had been ac* tuaily run and marked, the Court will not award a New Trial, where a second Verdict must necessarily be found lOr the Defendant. J5o far as the evidence proceeded, it 'completely authorised the instruction given to the Jury, Beyond the point where, the Evidence, stops there is no way of ascertaining whether the Charge was correct or not, It was merely hypothetical, and put by way of illustration. At ail events, there is nothing-for this Court co decide upon, as there is no state of facts to raise the question of Law.
    
      
       2 Hay. 100.
    
    
      
       1 Hay. 22.
    
    
      
       1 Hay. 23.
    
    
      
       1 Hay. 23.
    
    
      
       1 Hay. 377.
      
    
    
      
       1 Hay. 378.
    
    
      
       2 Hay. 347.
    
    
      
       2 Hay.353.
    
   Per Curiam.

We are all of Opinion, that the Plaintiff is concluded. by the terms of The grant irons claiming beyond the first intersection \v\Ú\'Hooks's line; inasmuch as the course, N. 78° L. called lor in the grant, will run as also called for, with or n iar Haoks's ¡me. Whereas if the first line is to proceed to the seconci line, or to be extended to the letter B on the plat described, the second line will not run with or near Hooks's line. As to the admissibility or effect of evidence of where the line actually was rui\ when surveyed, that is an abstract question, not necessary, at this time, to be determined.

We are, therefore, of Opinion, that the rule for a 5>Iew Trial should be discharged.  