#### Doe on dem. of Tatem and Baxter v. Paine and Sawyer.

From Pasquotank.

*What*are the termini or boundary of a grant or deed, is matter of law, *inhere*these termini are, is matter of fact,- The Court must deter. mine the first, and to the jury it belongs to ascertain the second! Where there is a cal! for natural objects, and course and distance-are also given, the former are the termini, and the latter merely pointers or guides to its and therefore, where the natural object called for is unique, or has properóes peculiar to itself, course and distance are disregarded: but where there are several natural objects equally answering the description, course and distance may be examined to ascertain which is the true object; for in such case they do not controla natural boundary, but only serve to explain a latent ambiguity.

Where a Judge below is correct in Sis statement of a rule of law, bus makes a misapplication of it, and it is obvious, from the finding, that the jury were led into no mistake thereby; *it seems*that -a new trial will not be granted because of such misapplication,

if a release be offered in the course of a trial to render a witness competent, end is read without any objection made at the time as to the want of proof of its execution, by the subscribing witness, such objection shall not avail after verdict as a ground for a new trial.

*EjECTMfiXT**The lessors of the plaintiff claimed under a grant from the state, dated 18th of March, 1823, to themselves, for the island marked X in the annexed diagram-

*65

The defendants were in possession, and claimed the land under a patent granted to *Thomas Williams, Joseph Fereoee*and *John*Williams, dated 2d of December, 1807, described and bounded as follows: “a tract of land, *See.*known by the name of Betsy’s marsh or island, beginning at Herring gut (A) the beginning place of *John Humphries’*entry, running N. 79 E. 6 chains and SO links,” &c. giving the courses, *“*inclosing an entry made by *John Humphries,*esq.” These courses and distances are designated on the diagram by the letters Á, B, ¡D, D, E, E, *G,*H, I. From E, the patent calls for a course *“*South 80 West, forty chains, *along the North Channel*the distance would terminate at f; the course and distance at F. If the course and distance áre followed from f, the lines will run g'g, hh, ii, and take nearly one half of the island X, bút thé lines would be in tire navigable waters of thé North Channel.

The defendants offered to read a copy of *John Hum-phries’*entry to enable the jury to discover the proper boundaries of fee patent; this was objected to, but the Court perVhitted it.

*66Defendants contended, that the island X was, at the date of *Humphries’*entry, and at the date of the patent to *John Williams*and others, called, known and esteemed a part of Betsy’s Marsh or Island; and that the sluices had been enlarged by storms, and that there is not, nor never was, a channel between the island X and the main island; and to prove that fact, and also to show where the shoal at the head of the channels was situated, among other witnesses, they called *John*and *Thomas Williams.*It was objected that they had conveyed with warranty to *Sawyer,*one of the defendants, all their interest in the land, and the plaintiffs read a copy of the deed of bargain and sale to show it, which did contain a warranty to *Sawyer*for ten twelfths of the land.

*John*and *Thomas Williams*then produced a release from *Sawyer,*which was read without any objection at the time to the reading of it; but an objection was taken that the release did not destroy the interest of the witnesses, as *Sawyer*had no right of action on the warranty before eviction. The Court held, that the interest of the witnesses was removed by tiie release, and they were sworn. They deposed that they purchased *Humphries’*entry; that in the year 1800, they had it surveyed by *Samuel'Ferebee,*and that the land covered by plaintiff’s patent was included in the survey; they run around all the islands (X being one,) and cornered at the shoal extending from the point J, and so down to Herring Gut, the beginning. The North and South Channels seperate one mile to the west of these islands, but the shoals of sand are covered by water down to the islands. The witnesses *John*and *Thomas Williams*had been familiar with the place for forty years, and it was all called and known by the name of Betsy’s Marsh; that the sluice between the island X and the main island, was so shallow that cattle, &c. crossed it with ease; that there never was any channel through it, though canoes could go through it; that there are two ship channels, one running on the north *67side of the island, the other on the south, seperating a mile above the island, and uniting again at the inlet.

It was proven that the plat sent to the secretary of state, on which the patent of *Williams*was obtained, was not made from actual survey, but that the county survey- or took it from the survey of other persons.

Plaintiff then called *Samuel Ferebec;*he could not say whether he included the small islands or not in the survey: lie run the lines as he was directed by *Thomas*and *John*Williams; nor had he any recollection of having run by *Humphries’*entry, or any other entry or paper, or that the county surveyor made 1ns plat from the survey of witnesses. . He produced his field book of the survey, and they did not correspond with the calls of the patent.

The Court informed the jury, that the principal question for them was, whether the land covered by the grant of plaintiff’s lessor was included within the bounds of the patent, under which defendants claimed. If it was, then they should find for defendants, as theirs was the oldest grant. To ascertain the true boundary, they would be guided by those calls in the patent, which appeared to them most certainly to make out the intention of the parties: that there was no dispute until they came to the letter E in the plat; the call thence was, «North 80 West, 40 chains, *along the North*Channelit was not disputed thai the course was variant from the North Channel; the course, therefore, must be disregarded, and the natural boundary followed, which, it was admitted, would be extended to f. From that point, if there was no other calls in the patent, course and distance would be their guide, although the lines might run over land not liable to be entered, as land covered by navigable water; for no objection could arise in running an ideal line across navigable waters to ascertain the true boundaries of land on the banks of such navigable waters. The course and distance followed from the point f would carry them through the island X, and terminate at ii, then, the plaintiff’s *68would be entitled to recover that: portion of the land west of the line. But there were other calls in the grant which the jury might look to, and be governed by, if these calls gave them greater certainty as to the true boundary. The patent, after calling for course and distance, has these words, “inclosing an entry made *by John Humphries,*esq.” They were at liberty to look at the courses of that entry, and be governed by its boundaries in the same manner as they would by a known line of a neighboring deed, which was called for when the course and distance would not go to such known line.

The counsel of the plaintiff then requested the Court to charge the jury as to the effect of *Samuel Ferebee’s*field notes of the survey. The Court said, that the field book of *Ferebee*was not evidence, unless the parties consented that it should be so deemed; it might be used to refresh the memory of the witness, but for nothing else; and the jury was directed to pay no attention to it. There was a verdict for the defendants, and the lessors of the plaintiff moved for a new trial,

1. Because the release from *Sawyer*to *John*and *Thomas Williams*was read without having been duly pro\ed by the subscribing witness thereto.

2. The release, if properly proved, would not render *J.*and T. *Williams*competent. .

S. The entry of *Humphries*should not have been received in evidence, nor *Ferebee’s*survey.

4. The Court misdirected the jury as to the law.

These reasons were overruled by the Court, and judgment was rendered, whereupon the lessors of the plaintiff appealed.

*L. Martin,*for defendants. —

One objection taken by the plaintiff’s counsel is, that the Judge permitted a copy of *Humphries’*entry to be read in evidence to the jury. It is a sufficient answer to this objection to say, that this entry is referred to in the description of the land contain*69ed in the grant under which the defendants claim; and, therefore, it -would have been an error in the Judge to . , *0*forbid its being read to the jury.

The next objection in the course of the trial was, that the paper writing signed and sealed by *M. E. Sawyer*to *John*and *Thomas*Williams, was not such a release as entitled the defendants to examine, these witnesses. This objection is well answered by referring to the copy of the release, which appears to be as full and absolute as possible.

The' counsel for the plaintiff, after the jury returned their verdict for the defendants, then moved for a rule to show cause why a new trial should not be granted, and assign several reasons.

First, because the release from *Sawyer*to the *Williams*was read without having been duly proven by tho subscribing witness to said release.

It is a sufficient answer to this to say, that the counsel make this objection too late. As the objection was not made at the time the release was offered, nor till after verdict, it must be considered as waived by them at the time they should have taken the exception, and the verdict cures the delect, if any it was. It is not pretended that any fraud was practised in the introduction of this paper by the defendants or their counsel, nor that the paper was not examined by the defendant’s counsel: but the case shows that they paid strict attention to this paper at the time it was offered; for they take exceptions to the legal effect of the paper, and insist that it is not such a release as entitles the defendants to examine the *Williams.*And furthermore, this is no ground to call on the Judge for a new trial, as it is not his duty to examine every paper offered in evidence by the parties before it can be read, but his duty is to judge of the legal effect of the. evidence after it is offered.

The second ground for a new trial is already answered.

*70The third reason is, ‘ the entry of *Humphries*should 110t hayo been permitted to have been given in evidence, _ , , 1 , *nor Ferebee’s survey.*

The first branch of this objection has been sufficiently answered. As to * *Ferebee’s survey ’*I must remark, that the matter in controversy was, whether the island which was claimed by the plaintiffs and described in their grant, was contained in the grant under which the defendants claimed. If it was, then of course the plaintiffs could not recover. In order to show that it was.. I contend that the defendants had a right to show every thing in their power, and if the evidence did not go completely to prove the fact, it would go for what it was worth only. It was a matter to be left to the jury. The evidence was not improper, and therefore not exceptionable.

The fourth and last reason is, * the Court misdirected the jury in the charge as to the law.’

This reason is made so general, that it cannot he specifically answered. I have looked over the charge of the Court with attention, and am unable to see on what part of the charge this reason rests. In the Court below, I believe the objection was confined to the part of the charge that follows: “ If there were no other calls in the patent, course and distance would be their guide, *although the line might run over land not liable to be entered, or land covered by navigable waters; for no objection could arise in running an ideal line across navigable waters to ascertain the true boundaries of lands on the banks of such navigable*waters.”

I can see no objection to this part of the Judge’s charge; and I feel confident, if a party shall not be allowed to pursue the actual line run because the -North Channel has cut out part of Betsy’s marsh, that great injustice must be done to the party; for the statement shows sufficient evidence that on a place so exposed, the wind is making alterations of boundary continually on the north side of {he island;

*71HeNdersoN, Judge,

delivered the opinion of the Court as follows:

What are the *termini*or boundaries of a grant or deed, is matter of law: where those boundaries or *termini*are, is matter of fact. I-' is the province of the. Court to declare the first, that of the jury to ascertain the second. Where natural objects are called for as the *termini,*and course and distance, and marked lines are also given, the natural objects are the *termini,*and the course and distance and marked lines can only be resorted to by the jury to ascertain the natural objects; they act as pointers or guides to the natural object. When the natural boundary is unique, or lias properties peculiar to itself, these pointers or guides can have but little effect, in fact I believe none. Where there is more than one natural object in the neighborhood answering the description, that is having common qualities, then those pointers or guides may be reverted to, to ascertain where the object railed for is, or which is the object designated. They do not then contradict or controvert natural boundary; they explain a latent ambiguity created by there being more than one object which, answers the description. Jt is completely within Lord *Bacon’s*illustration of the rule as to a latent ambiguity. The Judge was, therefore, right in his general observations; that natural boundaries must prevail over artificial. But this is rather a rule of law, than of fact; it governs, properly speaking, him and not the jury. It was-a misapplication of the rule to inform the jury, that after arriving at the letter H, they were at liberty to pass through the island X on the way to the great shoal, including part thereof within the grant, and excluding part.. -The rule must work both ways, if the grant includes the whole of Betsy’s marsh or island, without regard to courses and distances, because called for by it, nothing but what is Betsy’s marsh or island, can 'v* included iu it by courses and distances. The Hams X v is part of Betsy’s marsh or island, or it was not. If the first, the. *72whole of it was included in the grant; if it was not, none °t it could be brought within it by artificial calls. But this error produced no effect; the jury included the whole ^ie i®^nd N new trial ought not to be granted', therefore, for this error. The survey of *Humphries’*entry' made by the Messrs. *Williams,*was admissible to show the extent of Betsy’s marsh or island, for the entry and grant bad the same calls. It was also proper to show that they the Messrs. *Williams,*for they were witnesses on the trial, were uniform in their opinions on the subject; and I understand, from the Judge’s charge taken together, that it was introduced foi* the first purpose; for throughout the jury are told tiiat natural boundaries will prevail over artificial; by which I understand the Judge to say, that in law the grant includes the marsh or island. I am inclined to think that the difficulties in this case have arisen' from not attending to the description in the grant, which is *marsh*or island. If the island X could not pass under description of island, an island being land seperated by water from other lands, and there being a sluice between the island X and what is called the main island, at all times having water in it, although fordable by cattle and hogs; yet it might pass under the description of *marsh,*fór a marsh may include many islands, particularly when separated only by narrow and shallow sluices, and in the neighborhood of and surrounded by broad and deep waters, where such small separations would scarcely attract attention.

It is not the duty, or perilaps right, of this Court to value the evidence; but I think it would not be improper, in this case, to say, that after arriving at the letter H, if the line passed through the sluice, that is along it, there was no possible inducement after getting through it, to go to the great shoal at the head of the channel, a *terminus*called for in the grant; only latid covered by navigable water, which would pass, was included thereby; they would obviously have proceeded immediately to the Her-*73ping gut instead of the great shoal; whereas if they run around the island X, and included it withiq the description, they were carried to the great shoal, and it then formed a proper *terminus*for their departure from the Herring gut, the place of beginning.

As to the objections to the release, the first as to its not being proven, conies too late, it should have been taken on the trial; the other is entirely unfounded, for an obligation or contract of any kind can as well be released before breach as after; the only difference is, that if requires more comprehensive terms to embrace a case before there is a breach. The words of this release, a copy whereof is appended to the record, was sufficiently comprehensive to embrace a case before breach.

Let the rule for a new trial be discharged.

Judgment affirmed..