
    Holland and Bridges vs. Overton's lessee.
    
    Where a grant calls for a stake at a given distance, and it is proved that'a white oak, one hundred and thirty four poles beyond the distance called for, was marked as the corner, it was held, that the white oak, though not called for in the grant, was the true corner of the grant.
    This was an action of ejectment, brought by Overton’s lessee against the plaintiff in error. Overton claimed title by virtue of a grant issued to him by the State of North Carolina, dated 20th May, 1793. The defendants claimed under grants issued by the State of Tennessee, founded on entries made in 1824. Overton’s grant was for one thousand acres, and called to begin at John Buchan-non’s south west corner, a red oak, hickory, and other trees; thence south 347 poles to William Slade’s corner, an ash; thence east 461 poles to a stake; thence north 347 poles to a stake; thence west 461 poles to the beginning. The defence relied upon by the defendants below, was, that ihe land claimed by them lay east of Overton’s, and was not included within the boundaries of his grant.— The evidence showed that if the call in Overton’s grant, “east 461 poles to a stake,” was surveyed so as to stop at the end of the distance called for, and then a line from thence north, &c. the defendant’s would not be included within its bounds; but if the line east was extended to a white oak, which Overton claimed as his corner, and which was 134 poles beyond the distance called for, then north, &c. the defendants were included.
    Sampson Williams, the original surveyor, proved that he marked the white oak as a corner for Overton’s survey; that in the plat and’ certificate of survey returned by him and upon which the grant issued, he had described the line running east as terminating at a stake, instead of a white oak; that this was done in consequence of Over-ton’s directions, who said he was fearful the white oak could not be found; Overton stating that if it was found it would be his corner, whether called for in the grant or not. It was also proved by a number of witnesses, that ever since the year 1795-6, the white oak had'been called Overton’s south east corner, and that the line running north from it was reputed and known as Overton’s line. The white oak was marked for a corner, and the chops on the white oak and on the other line trees of the tracts seem to have been made with the same or a similar instrument. It was also proved that other entries, made shortly after Overton’s survey, called for this white oak as his corner, and for the line running north from it, as his eastern boundary line. There was a good deal of other testimony in the cause which it is not necessary to notice.
    The judge, amongst other things not necessary to be noticed, charged the jury, that he was exclusively the judge of the law in a civil case, and that it would be a violation of duty upon the part of the jury, to adjudge’ the law different from the court; that it was moral, if not legal perjury; but that the jury were solely and exclusively the judges of the facts; and after explaining to the jury the different kinds of evidence, proceeded thus:
    “We come to speak of the law governing the main question in this case, as it is called from the bar; that is to say, can the plaintiff be permitted to go to a tree at a greater distance than called for in the grant, though-no tree is called for at the termination of the line ? This question will depend upon the facts in the cause in a great degree. You are therefore admonished to be circumspect in your examination of them. The law generally confines a survey to the courses and distances called for in the grant, unless marked lines or natural objects are called for. But where an actual survey has been made by the government’s officers, and that place can be ascertained, though it may vary from the calls of the" grant, yet the grantee is entitled to the land actually surveyed for him. Marked lines and corners will control the courses and distances, and unerring natural objects will control marked lines and corners; as for instance, a double hack-berry marked in a particular maimer, should be called for standing at the mouth of Round Lick creek, and the tree should be found a quarter of a mile off; there the mouth-of the creek must prevail against the tree.
    You will enquire from the facts and circumstances in. this cause, whether Sampson Williams, the surveyor, actually did run the line with his compass and chain, east from the north east corner of Sandford’s survey, (if any such was made,) to the tree now claimed by the plaintiff as his south east corner, and that too for plaintiff, and then marked that tree as his south east corner; - if he did, and there is nothing else in the way, the plaintiff will be entitled to run to that tree, though a stake is called for at the end of 461 poles on that line. The- land actually surveyed is not to be lost, though the corners actually marked are not called for in the plat or grant, and stakes are called for instead of them.
    But it is said by defendant’s counsel, that John Over-ton, who was making out the plats and certificates for Williams, struck out the words white oak tree, and inserted the word stake instead thereof, and therefore he is bound by the distance called for in that line. This position is true or not true, according to the proof. Upon this point, whatever was done by Overton for the surveyor, and recognized by him, is in view of the law done by the surveyor himself. Therefore, if it was intended by him at that time not to run to the tree, but to cut off the survey at the end of the distance called for in that line, and abandon the point at the tree, then and in that case his survey would be confined to a point at the end of said distance. But, on the reverse thereof, if it was not the design to cut off any part of the line actually run, but still to go to the tree, and he chose to call the white oak tree.(if that be the one) a stake, he will be entitled to go to it, in the same manner as though he had called the tree by its name instead of a stake.
    But if the surveyor did not actually run to the tree, and mark the same at the end of his line as a corner at , . , , , . , the time the balance ot the survey was made, the plaintiff cannot go any further than the end of the distance called for in that line; or if it was intended to cut off the land actually surveyed at that point, there his survey must terminate.
    But it is said that notwithstanding the survey had been originally run up to the tree contended for, and that no part of the survey was cut oil’ by dropping the tree and inserting the stake, _ yet the plaintiff cannot recover under this declaration, because the plaintiff has not put the entire true ascertained distance in his declaration. I am of opinion that the land is well described, and sufficient to authorize him to recover*if the other facts are for him. ”
    
      Rucks, for plaintiffs in error.
    
      G. S. Yerger and Lacy, for defendants in error.
   Catron, Ch. J.

delivered the opinion of the court.

The question on the merits, is, was the white oak, the south east corner, marked for Overton’s grant; if so, it stands one hundred and thirty four poles east of the distance called for;, but if it was marked as a corner for the grant, (as Williams positively swears it was,) east to it, the land was granted to Overton, and because of excess of quantity, cannot be disturbed. From the white oak, north, there is a plain marked line, as old, and marked with the same instrument to all appearance, .with which the other lines were marked by Sampson Williams' when he made the original survey. These marks extend north of the white oak, the disputed corner, one hundred and fifty or two hunded poles.

In 1S06, Overton’s tract was run out by an order of court, and the line was then run to the white oak. This was reputed to be Overton’s south east corner, from 1796* as was the line running north from it, without dispute-or doubt of the fact, until 1818 or 1819, when it was discovered Overton’s grant did not call for the white oak, kut for a stake at that comer. Other surveys and grants called for this line, at early and later dates, as Overton’s eastern boundary, and the white oak as his south east corner. So far as land marks can be fixed by reputation for some twenty-five years, this white oak, and the line north from it, were established as Overton’s. This must go a great way. Shortly we will have little but reputation to ascertain boundary, and to permit this line to be disturbed, because of an excess of land in the grant, would, I fear, be of dangerous tendency. The court is of opinion there is no error in the charge of the circuit court, and orders the judgment to be affirmed.

Peck, J.

(dissentiente.) It is difficult to conceive how the jury could have found otherwise than for the lessors of the plaintiff, upon the charge of the court. Preparatory to delivering what the court no doubt honestly esteemed to be the law applicable to the case, the jury were admonished of the folly of finding against the charge. This, in strictness, we have nothing to do with, further than as the facts and law of the case may be viewed as a mixed question. That it was a question directly mixed, is obvious from the questions being presented in various attitudes, and being found in oneaor the other by the jury; the result they are told must be in a particular manner. If then, as to these attitudes, the jury were to apply the evidence for themselves, it seems hard to perceive how they could be said to find against the charge. Passing this, we will view the case in an aspect not presented by the circuit judge.

The plat and certificate of survey was the act of Williams, the surveyor and witness. That plat and certificate was evidence; and it was record evidence, which, having been produced by the officer under oath, he could not contradict. I will not take it on myself to say it is contradicted; but that was a question which should have been left to the jury. The law under which the surveyor acted, required that in his return he should have specified boundaries and marks, both natural and artificial. Has he done so? He tells us he did not; that a white oak greatly beyond the distance, was marked as a corner for another tract, which he intended to call for, but for which he substituted a stake in making up his record. How this was, I am not to know; it belonged to the jury to judge of; and if they had been told, as they ought to have been, that it was the best evidence of the things it expressed, and the jury could see no mistake in it, but every thing consistent, both as to course, distance, quantity of land and objects specified, it is possible the verdict might have been the other way. Nay, the jury might have thought, that if the rule of law was to stop at distance, where a stake alone was called for, that it was either contradicting or greatly amplifying the plat and certificate, to introduce a remote though marked white oak. This argument gains the more strength, when it is considered that in Overton’s opinion the white oak could never be found. If in his opinion it could not be found by himself or his surveyor, then it was fair to infer a locator of the adjacent land would not be likely to find it; and if he did, not being called for in the certificate or grant, he could not know it as the corner of that grant. Then to allow the surveyor to retain it in his memory since 1793, with liberty to incorporate it now for then, would greatly incommode such as might wish to adjoin. Hence, a plain principle of common sense, that record evidence expressly to the point, all harmonizing, and nothing lost that the state undertook to grant, is the best evidence. The memories of men fail; not so with records; and this is the foundation of the rule that course and distance are safest to rely upon when no certain object is called for.

The sweep, if I may so speak, given to special entries, keeping off those desirous to appropriate adjacent lands, has been productive of almost infinite mischiefs. Appropriations of lands made with the most honest intention, have yielded to the form of surveying the elder entry. Not only have the lands been los’t, but the honest and well meaning have suffered ruin in litigation and costs. What is this but reversing the same sweeping principle with grants, which of all documents ought to be the least subject to it? To admit extension of a grant at this day by recollection of what forty years ago was intention, is more mischievous in its consequences, than to allow an enterer to hold off locators in all directions to the extent of the oblong of his quantity.

Again: If this was a mistake, and the case is put upon this, why was not the grant amended, and the mistake corrected? Perhaps the reason is referable to the proved fact, that the grantee did not believe the white oak could be found. The consequence has been, that instead of amending the grant, at the last moment,'when the trial is had, the memory of a witness is substituted in the place of it; and time, which in this case operated as a witness, consistent with the grant as it reads, is proved to yield to the recollected fact of intention, and the monument of forty .years is removed.

The circuit court should have told the jury, that where the plat and certificate and the grant were consistent, and where the calls and marks on the ground harmonized with them, they were paramount evidence; but where harmony was wanting, and something had to be substituted to save a right, memory not inconsistent with the records might be let in; and that the evidence may be heard, but it must be weighed with the other, and the jury left free to judge of the facts for themselves.

Judgment affirmed.  