
    
      Doe on the demise of WILLIAM SAFRET v. JOHN HARTMAN.
    Whether a marked corner, made at the time the deed was made, but not called for by name, was intended to be adopted in the deed, or whether it ivas intended by the bargainor that course and distance should prevail, is a question of fact, in the ascertainment of the boundaries of a tract of land, that should be left to the jury with proper instructions.
    Whether the rule, that “ when there was a line actually run by the surveyor, which was marked, and a corner made, the party claiming under the patent, or deed, shall hold accordingly, notwithstanding a mistaken description in the patent or deed,” is not confined to grants by the State and old deeds, queers ?
    
    
      AotioN of ejeCTMent, tried before Caldwell, J., at the Special Term (December, 1857,) of Rowan Superior Court.
    The lessor of the plaintiff and the defendant, both, claimed title under George M. Hartman; the former by a deed to James Bean, dated 5th of February, 1850, and from Bean to plaintiff’s lessor by deed, dated 21st of January, 1852. The defendant’s deed was dated in 1845. The land in controversy is contained in the parallelogram B C I J.
    
      
    
    The two tracts of land comprised in the deeds of the plaintiff and defendant, originally constituted but one tract, which was owned by George M. Hartman. It is admitted that the deed of the lessor of the plaintiff, covers the land in controversy. The call of the defendant’s deed is, beginning at a post-oak, one of the old corners at A, which is admitted as a corner, thence south, with Smith’s line, 145 poles, to a stone, and a -, a new corner, B or C ; thence east, 110 poles, to a stone, I or J; thence north, with the old line, 145 poles to a white-oak ; thence to the beginning. Beginning at A, the distance gives out at B, and the defendant’s deed would not cover the land in controversy if the line stopped where the distance gives out. Defendant insisted, however, that the lin,e should not stoj> at the end of .the distance at B, but should extend to a black-oak at 0, and, in order to establish the black-oak as a corner, he called the surveyor, who proved that at C he found a hlack-oak marked as a corner, and, from the appearance, had been marked for eleven or twelve years, and that running from thence east 110 poles, he found a plainly marked line, at the endjof which, he found a stone in the old line, with pointers around. He further proved hy two witnesses, that about the time, and before the deed from George M. Hartman to John Hartman was executed, on the same day, the land described in plat A C I L was surveyed at the instance of the said George M. Hartman, for the purpose of dividing it between the defendant and one of the witnessses, Alexander Hartman, and, at that time, the black-oak was marked as a corner, and that the line C I was then marked. There was evidence tending to show that, after the date of the deed to the defendant, the bargainor, George M. Hartman, recognised the said line O I as the boundary. Plaintiff introduced a witness who swore that he heard the bargainor, George M. Hartman, say, before the deed was made, the surveyor told him there was a mistake in making the corner where he did, but that the bargainor could measure a rod or two from the black-oak and make a corner. It was further in proof that it was the object of the bargainor to divide the land equally between his sons, John and Alexander Hartman, but that he did not make a deed to Alexander for the part intended for him. Running by the plaintiff’s call, the distance gives out at B, and running by the defendant’s call, it gives out at the same point. If the line B J is adopted, then the tract] which the defendant gets, will contain 99 acres, and the plaintiff 102; but, if the line 0 I is adopted, the defendant gets 107 acres, the plaintiff 94.
    
      The plaintiff’s counsel requested the Judge to charge the j ury, that notwithstanding the line CI was run and marked first, before the deed was made, yet, if the bargainor ascertained that there was a mistake made in the survey, and it included more land in it than he intended to convey, he had a right to change the corner to some indefinite point according to the course and distance, and, if that were true, that the black-oak at C would not be the corner, but that it would be at B, the end of the distance called for iu the defendant’s deed.
    His Honor declined giving the instruction as prayed for, but charged the jury that notwithstanding the black-oalc was not called for in the deed, yet, if it was marked as a corner to the land conveyed, the line should be extended to the black-oak, regardless of course and distance. Plaintiff excepted.
    Verdict and judgment for defendant. Plaintiff appealed.
    
      Fleming, for the plaintiff.
    Jones, for the defendant,
    cited Cherry v. Slade, 3 Murpli. Rep. 86, reviewing the cases of Bradford v. Mill, 1 Hay. 22, Burton v. Christie, 2 Tay. 118, Standen v. Bains, 1 Hay. 238, Person v. Bounhree, Mart. Rep. 18, S. C. 1 Hay. 378, Johnson v. Mouse, 2 Hay. 301, Blount v. Benbury, 2 Hay. 353, --v. Beattie, 1 Hay. 376. He also cited Peed v. Sheneh, 2 Dev. 76.
   Pearson, J.

George M. Hartman, for the purpose of dividing a tract of land between two of his sons, in tire morning of the day on which he executed the deed in question, caused a survey to be made, in pursuance of which, a black-oak was marked as a corner, at one end of the dividing line; trees along the line were then marked, and a stone was set up with “ pointers around” at the other end; afterwards the deed was executed. Its calls are, “ beginning at a post-oak, one of the old corners, south with Smith’s line 145 poles to a stone, and -(a blank) a new corner, east, 110 poles, to a stone on the old line, north with the old line, 145 poles, to a white-oalc, west 110 poles to the beginning.” The question is, does the deed extend to the “ black-oak,” or does it stop at the end of the distance? There was evidence, that after these two corners were made, and the line was marked, and before the execution of the deed, the surveyor informed George M. Hart-, man there was a mistake in making the corner which he did, but that the bargainor could measure back a rod or two from the blaclc-oale, and make a corner.” His Honor was requested to charge, that if the bargqinor, before he made the deed, ascertained that there was a mistake, he had a right to change the corner, and adopt, for the corner, a point at the end of the distance, instead of the black-oak,” and the point adopted would be the true corner. This was refused, and his Honor charged that notwithstanding the blacle-oalt 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.” In this there is error. His Honor misconceived and misapplied the rule laid down in Cherry v. Slade, 3 Murph. Rep. 82. “ Where it can be proved that there was a line actually run by the surveyor, which was marked, and a corner made, the party claiming under the patent or deed shall hold accordingly, notwithstanding a mistaken, description of the land in the patent or deed.” This rule presupposes that the patent or deed is made in pursuance of the survey, and that the line was marked, and the corner that was made in making the simey, was adopted and acted upon in malting the patent or deed, and therefore permits such line and corner to control the patent or deed, although they are not called for, and do not make a part of it. Parol evidence being thus let in for the purpose of controlling the patent or deed, by establishing a line and corner not called for, as a matter of course, it is also let in for the purpose of showing that such line and corner was not adopted and acted on in making the patent or deed, because the rule presupposes this to be the fact. Eor this reason we are inclined to the opinion that the rule is confined to patents or grants by the State, where the law requires the survey to be made, and the Secretary of State to make out the grant in gou/rsucwice thereof. Or possibly it may extend to old deeds, ex necessitate, where the growth of the marked corners and line-trees show that the survey had been made for the purpose of making the deed. The eases that we have examined where the ruléis acted on, are all in reference to the location of patents. Such seems to have been the opinion of RuffiN, J., who says, stakes have never yet varied the construction; marked trees, though not called for, home, when they were proved by the aimual growth to have been marked for the particular tract. To relax the rule still further would be to let in an inundation of fraud, perjury and alteration of land marks.” It is possible that the word deed” has been interpolated into the rule in the many repetitions made of it, as a dictum / certainly, the reason upon which it is based does not apply as strongly to deeds, as to grants, and as it is a violation of principle, we are opposed to its extension.

It is not necessary, however, to express a decided opinion, or to prosecute the investigation far enough to form one, because in this case, the plaintiff offered to show that the line and corner were not adopted or acted upon in making the deed, and consequently the rule had no application admitting it to be extended to deeds of recent date. Besides, the evidence offered, that the bargainor had his attention called to the mistake, before he executed the deed, there is, in this case, the further fact, that the deed calls for “ a stone and-blank a new coiner” at the end of the distance, which is inconsistent with the fact that the “ black-oak” was adopted and acted upon as the corner in making the deed ; for if so, as it had been marked that very day, why was it not called for in the deed as the new corner intended ? This was matter for the jury, and the charge, “ if it (the ‘ black-oak’) was marked as a corner to the land, conveyed at the time of the comeycmce, the line should be extended to it,” was erroneous, and misled the jury, taken in connection with, the refusal to charge as requested. It was admitted that the black-oak had marks on it, as a corner, at the time of the conveyance, but the point was, did the bargainor adopt the black-oak as the corner in making the deed, or did be reject it and adopt a stone, or tbe point at the end of the distance ?

Per Curiam, Judgment reversed, and a venire de novo.  