#### Den *ex dem.*Sarah Reed *et al. v.*Michael Shence.

The *terminus of*a line 'must be either the distance called for in the deed, or some permanent monument, which will endure for years-; ¿he erection of which was cotemporaneous with the execution of the deed. A stake is not such a monument, and evidence of its erection when the l.and was surveyed is not admissible, to control the course and distance.

After the new trial granted in this case *(ante*2 *vol.*415) it was tried again at Lincoln, on the last circuit, before, his Honor Judge Martin.

The lessors of the plaintiff claimed title, 1st, under a grant to *James Dickson,*dated in 1785.

2d, By a deed of bargain and sale, dated in 1791, front *Dickson*to *Wallace Alexander,*for lot number S, in the town of Lincolnton, which had been laid off on the land covered by the grant to *Dickson.*The lot was described as beginning at a stake, the north-east corner of lot number 2, running thence six poles north-east, along the main street to a stake, thence running so sstp form an oblong.

nd. By a deed from *Alexander*to *Ilenrn Clmet*

*66-4th. By a deed from *Cline*to *Jacob Summey,*dated in 3.800, for a part of lot number 3, beginning at the northeast corner of a house standing on the main street, thence south-east twelve poles to a stake, thence four poles, and three feet south-west to a stake, thence northwest twelve poles to a stake, and thence to the beginning.

5th. By another deed from *Cline*to *Summey,*dated-in 1800, and also for a part of lot number 3, beginning at the north-east corner of the house standing on the lot, and mentioned in the last deed, running thence southeast twelve poles, to a stake, thence north-east one pole and thirteen feet to a stake, thence north-west twelve poles to a stake, thence to the beginning, being the northeast corner of the original lot, number 3.

6th. By a deed from *Summey,*also dated in 1800, to *Marlin Shuford,*one of the lessors of the plaintiff, for the whole of the lot number 3, in which it was described as beginning at the north-east corner of lot number 2, running thence along the main street six poles to a stake, thence so as to form an oblong.

The defendant claimed lot number *%*which adjoined number 3, under a deed from *Dickson,*dated in 1787,. which described it as measuring in front six poles.

The premises in dispute consisted of a piece of land, seventeen feet wide in front, and the only question was, whether the defendant’s deed covei’ed *it;*for if it did, his possession had been such as (to *protect him*under the act of 1715. If the front of each lot was six poles only,then the defendant’s deed did not cover the land in dispute. If, on the contrary, a front of six poles and six feet whs allowed to each lot, then it was clearly within the bounds of his deed. The defendant offered to prove, that although his deed called for six poles only, in truth, a front of six poles and six feet was intended 'j and that when the town was originally laid off, posts or stakes were set up at the corner of every lot, and the distance between these posts or stakes, iri every instance, was six poles and six feet. The lessors of the plaintiff objected to the introduction of parol evidence. *67to vary the description contained in the deed ; but his Honor overruled the objection, for the reasons stated by him in his charge given below.

The defendant then proved, by a witness who-purchased lot number 4, in the year 1787, that there was an old house standing on it, and at the corner of the house was a stake, which was pointed out to him as the corner of his lot — that the stake was a piece of split pine wood. This lot number 4 adjoined lot number 3, owned by the lessors of the plaintiff, on the side opposite to that where the latter joined lot number 2. The witness also proved, that by measuring from the centre of the public square (which was the beginning of the survey of the town) in a straight line to the point where the stake he spoke of was placed, and allowing six poles only to each lot, the distance would not reach that point, by about nineteen- feet — but by allowing six poles and six feet to each lot, the distance would only .fall short one foot. The same witness proved, that twenty-five years ago, *Shiford,*one of the lessors of the plaintiff, and himself, dug a well and erected a wash-house, so as to be upon the line between them, on the supposition that six poles and six feet .w as the front of each lot.

The defendant also proved, that a stake was standing on one of the corners of the public square in the year 1799, which was said to be the corner of it, and that measuring from that stake, and comparing the measurement with the erection of all the buildings on the square, six poles and six feet was the front of each lot.

The plaintiff, to rebut this testimony, proved by the original plan of the town, and the declarations of the surveyor who made it, who was dead, and of other old persons also dead, that, six poles only was the front of each lot.

On the other hand, the defendant proved declarations of *Dickson,*the original proprietor, and of a purchaser from him, both of whom were dead, that in laying off the town, six poles and six feet was the front of each lot.

I-Iis Honor instructed the jury, that if from the evidence before them, they were satisfied that lots number *68i, g and 3, had been originally run and staked off, or P°sts se^ 11P P01‘ ^IC corners, and that the width thus allotted to them was six poles and six feet, they should be governed by the lines actually run and marked ; that if they were not satisfied by the evidence, that the boundaries had been thus run and marked, they should be governed by the description of the boundaries contained in the deed. That the (question presented by the case was, whether parol evidence was admissible to control or vary the calls in the deeds. That it was believed, that a series of decisions authorized the introduction of parol evidence *;*but as the Supreme Court had declared, that they were not aware of any such series of decisions, it was necessary to examine the cases to see how the matter was. That the case of *Standeu*v. *Bains*(1 Hay. 238) was decided in 1795. The plaintiff claimed to a *dotted, line*on the plat of the survey made in'the cause. The course and distance did not extend so far, but only to a *black line.*The court permitted evidence to be given, that the dotted line was *marked,*and had for a longtime, since 1740, been reputed to be the line of *Jh'kilVs*tract, which was the land claimed by the plaintiff — the court, in that case, saying, the jury may consider, whether there is sufficient evidence to v satisfy them, that this dotted line is the real boundary, tho* not truly described in the patent. That the case of *Rountree*v. *Person*was approved by the court. That tho case of *Blount*v. *Benbury*(2 *Hay.*353) decided in 1805, was where the calls of the grant were for “ *Beasley’s*line, south 85 east,” and the court permitted evidence, to be offered to prove, that at the end of *Beasley’s*line, the true boundary was a marked line, running parallel to Beasley’s, and fifty one poles northward of it. That the court in that case remarked, that many *decisions*had been made, where the line described in the deed had been disregarded, to follow a marked line. That in the case of *Loftin*v. *Heath*(2 *Hay.*347) the grant called for a beginning “ at a cypress, and thence round to a pine at the creek,” and evidence was admitted to show, that the beginning was at the pine and not the cypress; and Tayror, Judge, *69remarked, “ it must now be taken for law in tins country, that notwithstanding any wrong description in the plat or patent, the party who is likely to suffer may show the mistake.” That in *Sladé*v. *Green*(‘i *Hawks.*218) HbNdersow, Judge, remarked, that “parol evidence had been admitted to vary the course and distance called for in the deed, by showing marked lines and corners, and where the deed-refers to no such marks as boundaries, there is no ambiguity, and it is admitting parol evidence to control the deed. It is now too late to vary the rule.” That in *McNeil*v. *Massey*(3 *Hawks*91) it was decided, that where a patent calls for .a tree as the beginning, and also calls for stakes for the other corners, that the course and distance will be controlled by a marked boundary, and that such a marked boundary may be proved to have been made, by adducing as evidence other grants calling for it; HeNDersost, Judge, remarking *“*such a boundary, like all other facts, may be inferred from other facts, if the fact proved be relevant to the fact to be inferred j” and alluding to other conterminous grants, calling for the boundary in dis- ■ pute, he says “ these facts pointed to something that controlled the courses and distances in the grants. Whether they proved that marked trees were once there, is an inference of fact for the jury. All the court can say is, that they are relevant.”

That it was believed those decisions established the following principles, to-wit: 1st. That where the grant calls for course and distance, and also some particular object as the boundary, parol evidence is admissible, to show the position of this object, altho’ it diffei’s from the course and distance.

2d. That where the grant calls for course and distance, and also for a stake as the particular object, parol evidence is admissible to show, that, a tree and.not a stake is the object marked by tlie surveyor as the. boundary, altho’ it varies in all respects from the' description,., in the grant.

3d. That where two different trees are marked, and .it is apparent that they were marked at the same time. *70parol evicleiice is admissible to show, that one of them was designated as the beginning . when the survey was made, altho’ it varies wholly from the description in the deet] • and the same kind of evidence is admissible to show a line, running in an . opposite direction from the course in the grant; and running too in such a way, as Would cause the beginning thus established to be in the middle of such aline, and notone of the corners.’ Such was the case in *Loftin*v. *Heath ;*where it was pronounced to . be settled law by Chief-Justice Tayiok.

4th. That boundaries contained in other grants, where l'elevant, and likewise common reputation are admissible as evidence to establish boundaries.

That such were the principles which were believed to be applicable to the case under consideration. • That the defendant alleged, that the lines of the town of Lincoln-ton had been rún, and that the corners of the lots had been designated by stakes or posts, set up whén the lines were run, and before the ' sale of the lots, and the conveyances before set forth. And that he, offered to prove, by parol, the points at which those stakes or posts were placed-,, and that those points were at the distance of six poles and six feet. That there was an entire uniformity in the decisions of those cases, where the grant, calls for course aud distance, and it was proposed to he shown that a marked line was made, which varied from them. That it made no difference whether the marks be still in existence, provided they were originally made as the boundary. Could it make any difference in principle, whether the marks consisted of a chop on a tree, a stone, a stake,, or a post? That trees bear the marks, ■ where the lines are run in wood lands ; but the boundaries of lots in towns are designated by posts, stakes or stones. That in the latter mode, it was proposed to be shown, that the town of Lincolnton had been laid off, and the facts before set forth, were offered in proof of it. . The stake standing in 1789, as the corner of number 4, another stake standing in 1799, both of them reputed to be corners ; the well dug, and the wash-house erected, between twenty and thirty years *71ago, then and since acknowledged by the parties, as upon their lines *;*common reputation, the declaration of *Dickson*in 1792 or 1793 ; the present width of the pub-lie square ; that such were the facts offered. That the question was not Whether they were full proof, but whether they were relevant. That it was believed they were $ and that the introduction of such testimony was authorized by a series of decisions. That the Chief-Justice of the Supreme Court, however, was not aware of any such series, and says that “ foi' many years the Supreme Court have, in all cases except one, adhered to the description in the deed.” That the case‘to which he alluded, was where the deed describes the land by course and distance only, and old marks are found, corresponding in age, as well as can be ‘ ascertained, with the date of the deed, and so nearly corresponding, with the course and distance, that they may well he supposed to have been made for its boundaries, the marks shall be taken as the *termini*of the land. This is going as fax’ as prudence permits.” That if this is to he the rule, it was believed that many decisions will he overruled, the settled law altered, and consequently titles rendered insecure. That by it, whore description is by course and distance, ho boundary will he permitted to vary from it, except it be made by chops on .trees.; for they are the only marks that can correspond in age with the date of old grants, by the distinct *laminm*formed by the growth of each year ; a post, stake, or stone would be wholly unavailable. That the decisions have been,.that it was the line run or marked, that was to govern, if it could he ascertained. ■ That this rule would restrict it to marks on growing timber. Bufó, corner tree maybe destroyed. That then it may be .shown, where it stood: and should it not also bo shown, where a corner stone, or a corner post or a corner stake, stood ? That in another part of the opinion it was said, that *u*marked *ter*'mini” may control course and distance ; but that this will not authorize the admission of the parol evidence above set-forth. “ For such acts or marks were not made to describe the calls of the deed, for the deed was *72made already.” That this seemed to him to be forming' an opinion of the kind of evidence legally admissible, from the effects it produced upon the mind of the judge. That the facts adduced were admitted as relevant circumstances, from which the jury might infer, that the lines of the lots were run, and stakes set up at six poles and six feet, before the deeds were made. That as to the stakes proved to have been standing, in 1789 and 1799, it was a matter for the jury to say, whether they were “monuments of description, erected when the lots were separated from other lands.” That it was not thought that the title could pass by parol, nor that the well a.nd wash house were placed there when the lots were run. But they were relevant circumstances to show what was originally done. That the opinion of the Supreme Court admitted, that “ such acknowl-edgements are evidence of the place where the marks or *termini*once were;■ but they are only evidence where it has been shown, that there were *some marks*to which such acknowledgments pointed.” That in this case, a stake was proved to have been standing as a cor-nel’, in 1789, and another in 1799. That from that and other facts proven, ‘ it was left to the jury to decide, whether these posts or stakes and others had been set up as monuments of description, when the lots were laid off. That the grant of the land was in *1785.*That when the town was laid out did not appear ; but in 1789 ■the stake is .described as an old piece of split pine then standing. That it surely could not be meant, that the mark must be in existence when the controversy arises; but it seemed to be decided, that some witness must have seen it; for it states “that there were some marks to which such acknowledgments pointed.” That by this rule it was not perceived how the corner could be established, that had been destroyed time out of mind ; altho’ there might have been a uniform tradition where it stood, both by common reputation and the acknowledgments of the parties ; accompanied too by very expensive improvements upon the land as claimed by each. That it was stated, that the law as laid down by the Superior *73Court was an abstract proposition, true in itself, but wholly inapplicable to the case. That it was hoped, that the Supreme Court would perceive in the foregoing reasoning enough to show, that it was deemed to contain the principles on which the rights of the parties rested. His Honor in conclusion said he believed with confidence, that whatever disposition might be made of the case, nothing in his opinion could' be supposed disrespectful to the Supreme Court, and that it would be a matter of sincere regret to him should such an inference be drawn; as he believed, it most respectful to that court, to give it an opportunity of reviewing Jts own decisions, where, they were supposed by the judges of the Superior Court to violate what the late Chief-J ustice TÁtxor declared to be “ *settled Uno.”*

A verdict was returned for the defendant, and the lessors of the plaintiff appealed., ■

Gaston, for the' plaintiff,

submitted the case without, argument, upon the decision of the same case *(ante*2 *vol.*415). , . '•

*Bevereux,*for the defendant,

also submitted the case, relying upon the charge of the judge below.

HENDERSON, Chief-J ustice

I am glad that this causé has returned upon us ; not that I am desirous of unsaying what I said upon the former occasion; for with that opinion, so far at least as it had a bearing upon the case, I am satisfied. But it affords me an opportunity of expressing myself fully upon what may he called stake boundaries. That stakes may be real boundaries, and so intended by the parties, and not mere imaginary points, I mean not to controvert. But I said before, and now think, that where they are given with course and distance, and no further description given of them; for example, “toa stake, ” or *‘ ‘*thence to a stake in a line,” they were intended by the parties, an d so should be understood,to design ate imaginary points; that is, where the line terminates, or intersects another line. And this, I say, is founded on universal practice and the nature of man. For having at hand a *74more certain atad definite means of pointing out tlic object,, as a cedar, a pine, or an oak — -or a stake standing in a field, a wood, a pond, or near the road, creek, river, or some other additional means of description, and not using them, and having given the course and distance, they intended to rest on that, and that alone to point out the location of the stake, or rather where they intended should be the spot represented by the description of a stake. To permit parol evidence, to-show that a stake was put up, or was seen at or near the spot, is to permit proof in opposition to the intention of the parties. For if one was actually set up, it was designed for some temporary purpose; ami .not as a land-mark, whereby the boundaries should be established. For the parties designed a more certain description. The court *should not*have heard the evidence, or, having heard it, should have instructed the jury, that such evidence did not vary the 'description given by the course and distance in the deed. For it is the province of the court to declare, what are the calls of a deed, and where there áre more than one call, which is* the controlling, one. What -may be the proper rule, where the court can rationally perceive, that tlic parties intended by the word *stake,*something more than an imaginary point, by superadding a farther description in the deed, this case does not render necessary to say. But I suppose a court would he bound to say, if that intent was collected from the deed, however frail.it mighí be, and however likely to produce mistake, fraud and perjury; yet as the parties had thought proper to make it. their boundary, the court could not interfere. But even there, the proofs controlling course and distance, I think should be of the most satisfactory kind ; and such intent should appear in the deed.' *Prima fade,*where course and distance are given, nothing more than an imaginary point is presumed to be intended.

Judge Hall has with much force given reasons, why a stake should not in any case control the course and distance. So far as policy is concerned, his argument is unanswerable.

*75iliix, Judge..

Deeds for land, without location, are Nullities; To be of any avail, they must in fact, or by way of reference, be fixed to the earth. They must be fixed to immovable objects. They may call for water courses, rocks, trees, or any thing immovable, that may be identified. Marked trees, the most common, are partly natural, and partly artificial boundaxúes. They are however immovable, and the marks are made for the purpose of identifying them. So long as these last, the location of the land is *certain;*it cannot be varied. When they become effaced and destroyed by length of time, there can, from the nature of things,- be no written evidence to show the spots of ground on which they grew. Hence, necessity permits the introduction of pa-rol evidence for that purpose. But if a deed for land is originally made without a location, and without a mane, parol evidence has never yet been permitted to give it either.

Movable things may become the boundaries Of land, when they become immovable; as a wall or a pillar of stones, or any. other fixed, stable substance. I consider stakes to be only imaginary points. They bespeak more of locality, to be sure, than floating feathers on the water, but they are as unfitto he boundaries of land. Ordinary accidents may draw them from the earth, and destroy them.- But deeds, impelled by all the force of wickedness and fraud, cannot pull up trees by the roots. Stakes would not answer the ordinary purpose of common honesty, and prove nothing in a contest for boundary.

Deeds must call for boundaries of the kind I have mentioned, and the furthest the common law has been departed from, is to connect deeds with such boundaries by parol evidence, where it appears they have been marked for that purpose, although the deed does not call for them; provided it is in part located, as by calling for some corner, or place not disputed, or to be disputed. If a half acre of land is sold, beginning at a particulai* corner, and the lines run accordingly, the half acre only passes, altho’ the surveyor surveyed mor« *76than half an acre, because the lines were not properly marked. But if he surveyed more than half an acre, and marked the lines in a proper manner, the whole that jig surveyed would pass. I concur altogether in the opinion of the Chief-Justice.

Eroroi, Judge.

I concur with the senior members

Of the court. The judge of the Superior Court, in the exposition of the reasons of his opinion, which he has given with ability, places the question upon the ground of the departure, which has been allowed in this state, ■ from *the calls*of a deed. That he is correct in saying, that such a departure has been allowed, is beyond a doubt. There is no error in that. But he seems also to think, because parol evidence is heard, and upon it the deed is controlled, that therefore the sufficiency of proof is for the jury to determine. In that, I conceive,, is the mistake. The truth of parol evidence is for the. jury ; so also its sufficiency, where it does not refer to some question of law. The stating of a few plain principles will set this question in a clear light. A deed is construed by the court, not by the jury; What land by its terms it was intended to cover, is just as much matter of law, as what estate it conveys. I do not mean, that the location of the *termini*is decided by the court.; for that is to be learned only from witnesses. But *what*are the *termini,*wherever found by the jury, must be ruled by the court. Where a deed therefore is read, the court says, it covers the land only between such and such points. If any of the particular rules of construction, made necessary by our situation and adopted by our courts, are then resorted to, for the purpose of showing that it covers other and more land, than by its words it would, the evidence offered to that point, except as to its veracity, is still addressed to the court. It must he so ; else the construction is with the jury. If a stake is called for, itisnotto be proved tothejury,thattherewasa Stake, and they told that if they are satisfied it was set. up for a boundary, and are also satisfied that the boundary thus designated was made upon actual survey, they *77may carry tbe deed to it, because in law an object thus-.perishable) and so easily destroyed or removed, is not sufficient to control the deed ; and it would be just as. reasonable to control it; upon.mere proof of a survey to a particular spot, not at all designated by a call in the deed, nor marked by any erection whatever. The jury are not to hear this evidence as a ground of inferenceby them that particular land was actually surveyed; because if it- was surveyed, it was not conveyed by the ■ deed. All matter is indeed subject to decay.; but that portion of it, which must by- nature be decomposed in a very short-time, cannot be deemed a *land-mark,*suffi-eiently obvious and durable, to alter the construction of a deed, It-is going far enough, to admit such an influence for objects longer lived than one or two generations of men. If then, after giving full credence to testimony, it does not establish a fact sufficient.in law to alter the construction, the court must pronounce it. In other words, the court must pass upon the sufficiency of the proof. There is no difficulty in understanding this, if we suppose the court, as regularly they might and perhaps ought, to call on the counsel to state the purport of his evidence, when he offered the witness. If it did not establish a case for going off from the deed, no part of it could be heard. It would be irrelevant, because insufficient fop the purpose designed.

*Stakes*have never- yet varied the construction, *Marked trees,*tho’ *not called for,*have, where they were proved by the- annual growth to have been marked for tiie particular tract. To relax the rule still further, would be to let in an inundation of fraud, perjury, and alteration of land-marks. Difficulties enough have been experienced in expounding and locating deeds under the. established rules ; and the safety of titles requires, that. .'the doctrine should stand at what it is.

Per Curiam* — Judgment reverse^.