#### THOMAS H. MASSEY *vs.*MARY BELISLE.

In a written contract the terms are fixed, and' the meaning of those terms is a question of law.

So also in a parol contract where the terms are precise and explicit.

But ina^parol'-coBtract, if the parties dispute about the terms of the a-greemenfr, and these are obscure or destitute of precision or to he inferred from the conduct of the parties, the ascertainment of these terms is in the first place’necessary, and this is clearly a question of fact.

Every deed of conveyance of land must set forth a subject matter, either certain in itself or capable of being reduced to a certainty by a refer-erence to something extrinsic to which-the deed refers.

It is a settled rule of construction in this Slate that when “ stakes ” are mentioned in a deed simply, or with no other added description than that of course and distance, they are intended’ by the parties and so understood to designate imaginary points.

Where the question on trial was as to the boundary of a town lot, and the deed under which one of the parties claimed contained two descriptions, one saying it “adjoined” a certain other lot, and another giving a different description, the Court did not err in leaving it to the Jury to decide which description they thought was intended by the parties to the deed — whether the parties in using the word “adjoining,” might not have meant “ near ” as the word is sometimes used in common parlance.

This was an appeal from the judgment of the Superior Court of Law of Cumberland County at Fall Term, 1841, his Honor Judge Pbarson presiding. The suit was an action of assumpsit for twelve dollars, and commenced by warrant before a magistrate. The plaintiff proved on the trial, that in January, 1834, he employed one Black, a surveyor, to run out his lot in the town of Fayetteville; that according to Black’s survey, a small house, which the defendant had erected since the very destructive fire in 1831, which consumed all the houses in that part of the town, was about two feet on *171the plaintiff’s side of the line; that the defendant was informed of this fact snd promised to pay the plaintiff four dollars per annum until she should move the house; that at the expiration of the first year, the plaintiff demanded the four dollars; that the defendant objected to paying it, saying, that she had since become satisfied that the house was noton the lot of the plaintiff and it was hard to pay rent for her own land; that the plaintiff said she might as well pay the money, and, if it turned out that the house was not on his lot, he would refund the money; that the defendant paid the four dollars; that afterwards the plaintiff and defendant agreed to have the lines run and established by two surveyors; that they, however, did not agree upon the line; that at the expiration of the four years, the plaintiff demanded twelve dollars, according to their understanding, the house not having been removed; and that the defendant refused to pay it.

The defendant’s counsel insisted that the promise to pay was upon condition that the house wasdn part upon the plaintiff’s lot, and contended that the plaintiff must prove that fact; and in the second place, that, if the promise was not upon an express condition, at all events it was in consideration .of the fact that the defendant’s house in part stood upon the plaintiff’s lot, and offered to shew that the consideration had entirely failed, because in fact the house did not touch the plaintiff’s lot. The plaintiff’s counsel insisted, that whether the house was or was not on the plaintiff’s lot was immaterial, for that the promise was made in consideration of forbearance to sue, or by way of compromising a doubtful claim and therefore binding. The Court intimated the opinion, that it was to he settled by the Jurv, whether the promise was upon condition and what was the consideration of the promise; and said, that if the Jury were of opinion, that the four dollars per annum for the last three years was only to be paid upon condition that the house stood in part upon the plaintiff’s lot, the plaintiff must prove that fact; if the promise was in consideration that the house stood in part upon the plaintiff’s lot, the defendant might shew an entire failure of the consideration by proving that the house did not touch the plaintiff’s lot. and the promise would not *172in that event be binding: but if the consideration was forbearing to sue or by way of compromise, then it would make no difference how the line was.

Evidence was then offered on both sides as to the title. piaintiff contended that his lot was located as represented by A. B. C. D. in the plat, and read in evidence a deed to himself from John G. Coster, together with regular conveyances to Coster. This deed described the land it conveyed, as follows: “all that tract or parcel of land, situate, &c. in the Town of Fayetteville, County of Cumberland and State of North Carolina, beginning at a stake on William Gillespie’s line, running thence South 15° West 94 feet four inches to a stake on Hay Street, thence on said Street North 70° West thirty feet to a stake, thence North 15° East 74 feet six inches to a stake in said Gillespies line, thence with said line to the beginning, being the same lot conveyed by William F. Strange, Clerk and Master in Equity for said County to said Coster by deed registered in said *County book M.*No. 2, page 544.” The defendant road in evidence a deed to one Patillo, under which she claimed. The description of the land conveyed by this deed is as follows; "a certain lot or parcel of land in the Town of Fayetteville adjoining William Riley’s lot on the North side of Hay Street, beginning at a stake called Newbery’s, Gillespie’s or Simpson’s corner, running then South, 15? West 104s feet more or less to the plat of the Street, thence along the Street So. 70°, East 24 feet, thence North 15°, East 1,041 feet, thence North 79°, West 24 feet, it being a square lot of land 24 feet in front and 104s back. The defendant claimed that her lot was located as represented by 1, 2, 3, 4, and that the proper location of the plaintiff’s lot was represented by 6, 7, 8, 5. To locate his lot, the plaintiff read in evidence a deed to one Gordon for ,one acre, which he contended was represented by A. or E. H. I. K., and proved that his lot and the Morrison lot wore taken off of the Gordon lot, being the part North of Hay Street. The plaintiff also offered evidence to shew that, by general reputation, a stone at E., was the corner of the Gordon acre, and that E. K. was the Simpson line mentioned in the deeds. The plaintiff also proved that for many years be*173fore the fire, a fence dividing his premises from the Morrison premises run along the line C. D., some of the posts were still standing. He also proved that the corner of his house stood at C. before the fire and extended to 7; and contended that Z. C. F. represented Morrison’s lot, and E. B. C. F. or A. B. C. D. represented his lot, and so filled up that corner of the Gordon acre. The defendant’s house extended about two feet West of the line E. B., but did not reach the line t 2. The defendant contended that 1, 9, 10, 7, represented the Gordon acre; and offered evidence to shew, that by general reputation, a stone at 1 was the corner of his lot, and that I,-. 9, was the Simpson line, mentioned in the deeds. The defendant also offered evidence to shew, that by general reputation, the South East corner of her lot was at 3, where Old Street left Hay Street. It appeared by the survey, that if Z. was the intersection of Hay Street and the Simpson line, or the line of the Gordon acre, which corres - ponded, then Z. 8, 5, would fill the cousres and distances of the Morrison lot, 8, 5, 7, 6, would fill the courses and distances of the plaintiff’s lot, Z, 8, would be the front on Hay Street, called for by Morrison, and 8, 7, the front called for by the plaintiff, and 2, 8, the front cailed for by the defendant’s deed, B. C. was also the front on Hay Street called for by the plaintiff’s deed. The defendant also proved that for 25 years before the fire, there was an alley about four feet wide at 2, 7, reaching back to P. and a fence from P. back to 1. Some of the posts were still standing, although the fence was consumed by fire. This alley and fence separated the premises occupied by the defendant, or those under whom she claimed, from the premises occupied! by the plaintiff or those under whom he claimed.

After leaving to the Jury the question as to the promise and the consideration, as above stated, the Court charged, that, in locating the plaintiff’s lot, the Jury would commence in Simpson’s line, and then run to Hay Street, without regarding distance, as these two calls would control the distance ; and it made no difference, in this view of the case, whether the line E K or the line 1 9 was the Simpson line, for the contest was how far *East*on Hay Street the plain*174tiff’s lot extended ; it was immaterial how far North it extended back; that, upon the supposition that E H I K was the Gordon acre, as contended by the plaintiff, then the ques-^on was’ w^et^er th® East line of the plaintiff’s .lot extended to the line E H, the East line of the Gordon acre. The plaintiff insisted that it did, because if C D, where the old fence stood, was the West line, then, according to the distance on Hay Street, A B or E B would, for the other reasons suggested by his counsel, be the East line. The defendant insisted that the East line of the plaintiff’s lot was 6 7, and did not extend to the East line of the Gordon acre, because the plaintiff’s deed called for a stake in Simpson’s line, then South to Hay Street, and did not call for the corner of the Gorden acre, or running with Gordon’s original line, whereas if it had' commenced at the corner and run with the old line, he contended such would have been the call. The defendant’s counsel ^contended that the Alley and the fence from P to l supported this position, together with the other suggestions he had made ; to all which the Jury would give the weight to which they thought them entitled in locating the line. In reply, the plaintiff’s counsel relied upon the fact, that the deed to Patillo described ‘the lot as adjoining the Riley lot, which was the lot owned by the plaintiff, and, in the particular description, called for the-original line of the Gordon acre, tending to show, that the line of the Riley lot and of the Gordon acre was the same. The Cou rt observed to the Jury, that unless the East line of *the*plaintiff’s lot and the East line of the Gordon acre was the same, there was a discrepancy in the general and particular description, used in the Patillo deed. How the fact was, was a question for them. It might be, as contended by the defendant’s counsel, that the general description meant, adjoining Riley’s lot, with the slip between the Gordon acre and the plaintiff’s line for an Alley or outlet, as we might in common parlance say two lots adjoined, although there was an Alley or even a Street between; or it might be, that, at the time the Patillo deed was drawn, the parties were under the impression that the two lines were the same, when in fact they were not. *It*was for the Jury, from the evidence, the instructions of the *175Court as to the law, and the suggestions made by the counsel, to locate the plaintiff’s lot.

There was a verdict for the defendant. A motion for a new trial was made, on the ground that the Court erred in the instruction as to the consideration of the promise, and also in that part of the instruction where the Court observed “ that it might be that the general description meant adjoining Riley’s lot with the slip between,” &c. The motion was overruled, and judgment being rendered for the defendant, the plaintiff appealed to the Supreme Court,

*176*Strange,*for the plaintiff,

contended that the Jury should have found only the terms of the contract, and the Judge should then have declared what was the consideration. 2dly, That the Judge should have told the Jury what in law were the boundaries of the defendant’s lot, and that the line of Riley’s lot, to which it was said to be *adjoining,*must *in law*be one of the lines of the defendant’s lot.

*W. H. Haywood, Jr.*for the defendant.

Gaston, J.

The first exception taken by the appellant is because the Court submitted it to the Jury to enquire, whether the promise of the defendant to pay the sum demanded as rent was absolute or conditional, and if absolute, whether it was made in consideration that the defendant’s house was upon the plaintiff’s lot, or in consideration of his forbearing to sue, and in compromise of a doubtful right. We do not think this exception well founded. No doubt the construction of all contracts, in the proper sense of the term *construc*tion.i is a matter of law, and therefore proper for the. determination of the Court. In written contracts, which cannot be modified or explained by parol, the terms of the contract are fixed, and the meaning of those terms is a question of law. Where the contract has not been reduced to writing, and its terms are precise and explicit, nothing more remains for determining the effect of the agreement, than declaring its legal meaning. But if the contract be by parol, and the parties dispute about the terms of the agreement, and these are obscure or destitute of precision, or to be inferred from the conduct of the parties, the ascertainment of those terms is in the first place necessary, and this is clearly a question of fact Such was the case with respect to the contract under consi. deration. . The plaintiff stated to the defendant as a fact, that it had been discovered that her house was two feet upon his lot. Upon this information she promised to pay him four dollars per annum, while it remained there. At the expiration of the first year, when the rent was demanded, she refused to pay, alleging that the house was altogether upon her own land. After this refusal she did pay the four dollars, upon his express promise to refund it if it should turn out *177that the house was not upon his lot. The parties then agreed upon a mode, by which the boundaries of their respective lots should be determined. Unfortunately the attempt thus to determine their boundaries failed, and the plaintiff sued for the next year’s rent. Now it seems to us clear, that upon what terms and upon what consideration the defendant promised to pay rent, was an enquiry of fact, fit for the determination of the Jury.

The next exception taken is, because of error in a part of the Judge’s instructions on the much disputed question of the location and boundaries of the plaintiff’s lot. This question was supposed- to involve two enquiries. The first was what was the eastern line of the Gordon acre lot, of which the plaintiff’s lot was admitted to be a part, whether it wag the line E or A B H, as claimed by the plaintiff, or the line 1 2 9, as insisted by the defendant; and secondly, if it were the line ABH, did the eastern boundary *oí*the plaintiff’s lot reach- that line. The only evidence directly fending to establish the controverted boundary of the Gordon acre, with the exception of that which will be hereafter particularly noticed, was reputation respecting its beginning corner, and this was contradictory. There was a reputation that á stone at the letter E was the corner, and there was reputation that the stone at the figure 1 was the corner — and the weight of this evidence was left to the Judge. But the location of the plaintiff’s lot whatever might be that of the Gordon acre, was a matter of great difficulty. The first *description*of it in his deed-is “beginning at a stake *in*Gillespie’s line, running S. 15, W. 94 feet 4 inches,, to a stake in Hay Street, thence on said Street No. 70, W. 30 feet to a stake, thence No. 15, East 74 feet 6 inches to a- stake in Gillespie’s line, thence with-said line to the beginning.” According to'this description its location was impossible, because in law"it covered no land. Every deed of conveyance must set forth a subject matter, either certain in itself or capable of being re. duced to- certainty by a recurrence to-something extrinsic, to which the deed refers. The stakes may be real boundaries when so intended by the parties, but it is a settled rule of construction with us, that, when they are mentioned in- a deed *178simply, or with no'other added description than that of course and distance, they are intended by the parties, and so understood, to designate imaginary points. Every corner in this description is 11 a stake,” or imaginary point — and there is no reference, by which the locality of any one of these points is fixed. Two sides of them are indeed,in *Gillespie's*line, and two of them are *on*Hay Street, and the bearings and distances of alL the points from each other are given. Bat in what part of Gillespie’s line, or on what part of Hay Street the points are, can neither directly nor indirectly be discovered from this description. *But the deed*afterwards proceeds to state that the lot thereby conveyed is *the same*that was theretofore conveyed by William F. Strange, Clerk and Master in Equity, to John J. Coster, by deed registered in said County in book M, No. 2, page 544. Whether this deed to Coster contains any other description than that given in the deed to the plaintiff, does not appear, or whether it refers to any other deed containing a more certain description is not stated. If this were the case, it would seem that the plaintiff' would have availed himself thereof on the trial, in endeavoring to locate his lot. We have doubted, therefore, whether we were not bound to understand, that the reference to the deed from Strange to Coster left the *termini*of the sup-posedlot as incapable of ascertainment as though no reference had been made thereto, and if so, whether we ought Hot on this ground alone to affirm the judgment against the plaintiff. But we have declined to do so, because this objection does not appear to have been taken to the plaintiff’s title on the trial, and because from the controversy about the limits of the Morrison lot it seems to have been in some manner proved or admitted, that the lot of the plaintiff *adjoined*that of Morrison. If it be assumed that this did appear in some of the conveyances, to which reference was either directly or indirectly made by the deed, under which the plaintiff claimed, then the *termini*of that were capable of ascertainment, and in law his beginning was Morrison’s eastern *comer in*Gillespie’s line, and his next corner was Morrison’s eastern corner on Hay Street..

The case does not show what were the *termini*called for *179in Morrison’s deed, but it states that if Z be the intersection of Hay Street with the Gordon line/as the plaintiff contended it was, then Z 8 5 would fill the courses and distances of the Morrison lot. We are bound therefore to understand that Morrison’s lot was defined by courses and distances, beginning at that intersection, and we are not at liberty to presume that the description by course and distance was overruled or controlled by any more certain description. If this were so and Z the point of intersection, it would seem to be fatal to the plaintiff’s claim, for although Morrison’s fence ran from C to D for several years before 1831, and whatever might be the effect of a long possession up to that fence in protecting Morrison’s occupation, the fence could not control the calls in the deed, nor change the *termini*therein mentioned. Morrison’s *deed*was to decide where were the two first corners of the plaintiff’s lot; and if these were 5 and 8, then the two other corners being imaginary points, designated merely by their courses and distances from the two first, were *fixed*at 7 6, and he had no title to the *locus in quo.*The legitimate effect of the long existence of the fence, C D, was to raise a presumption that the course and distance of Morrison’s line on Hay Street did terminate at 0, and therefore that the intersection of Hay Street with the Gordon line was not at *1*but at O, or at some point East of Z. And had this been contended for by the plaintiff, the weight of that presumption under all the circumstances would have been a matter proper for the consideration of the Jury.

But the defendant set up title to her lot under a deed made by John Simpson to Henry Patillo, on the 23d of February, 1792, which thus describes it: “A certain lot or parcel of land in the town of Fayetteville, adjoining William Riley’s lot, on the North side of Hay Street, beginning at a stake *called*Newbery’s, Gillespie’s, or Simpson’s corner, running thence S. 15, W. 104| feet more or less, to the plat of the Street, thence along the Street S. 70, E. 24 feet, thence N. 15, E. 1044 feet back.” As to the location of this lot no doubt can be entertained, if at the time of the execution of this deed the *reputation*existed, of which evidence was given in the case, that 17 9 was the Simpson or Gordon line men*180tioned in the deeds. In no other way can the defendant have her oblong (or square) of 24 feet front and 104¿ feet backj than by assigning to it the boundaries 1 2 3 4. If the be-giuning was at A or E, and not the figure 1, then a relatively consj(jeraj3[e portion of her front would not be on Hay street or *on*any street, but would be taken away, by being thrown *into*the intersection of Hay and Old Streets. Under this deed, the case states, that she and -those under whom she claimed held possession for at least twenty-five years before 1831. Whatever might be the location of the plaintiff’s lot, if this were the location of the defendant’s lot, her possession under this deed gave her an indisputable title to the ground .on which her house was built.

Admitting however that the proof was not to be credited ■in regard to the reputation that 17 9 was the *Simpson or*-Gordon line mentioned in the deeds, or that such reputation began after the date of the deed toPatillo, we are then brought ■to the particular part of -his Honor’s instructions, to which •the second exception of the appellant applies, While the Palillo deed in its particluar description begins at the reputed Simpson or Gordon corner, and runs the course and distance of the Gordon line, it represents the parcel of land thereby .conveyed as *adjoining*the Riley, or as it is now called, the plaintiff’s lot, and *this,*it was contended by the plaintiff, tended to show that the line of the Cordon acre and of the Riley lot was the same. The Court, in its charge to the Jury,.called their attention to this argument or suggestion .of the plaintiff’s counsel, and told them that *‘f*unless the East line of the plaintiff’s lot and the East line of the Gordon acre was the same, there wa.s a discrepancy in the general and particular description used in the Pa.tillo deed. How the fact was, it was a question for them to decide — that it might be as *contended*by the defendant’s counsel that the general description meant adjoining Riley’s lot, with the slip between the line of the Gordon acre and plaintiff’s line for an Alley or outlet, as we might in common parlance say two lots adjoined, although there was an Alley or even Street between ■them, or it might be that at the time the Patillo deed was executed the parties were under the impression that the two lines were the same, when in fact they were not; and that *181it was for the Jury, from the evidence, the instruction of the Court as to the law, and the suggestions of the counsel, to locate the plaintiff’s lot.”

It is not objected that there was error, because the Court *° 1*did not instruct the Jury that Patillo and those claiming under him were concluded or estopped from denying that the Riley lot and the Gordon acre had the same common boundary. When there are two descriptions in a deed, it is a matter of every day’s occurrence to determine between them, which shall be followed if they cannot be reconciled. It cannot with propriety be objected that the Court did not allow to the suggestion or argument of the plaintiff’s counsel the effect claimed for it, because his Honor did expressly state that “unless the East line of the plaintiff’s lot and the East line of the Gordon acre were the same, there *xoas*a discrepancy between the general and particular description in the Patillo deed.” It was not error, notwithstanding by the legal construction of the general and of the particular description in *this*deed, these lines were *represented*as being the same, to leave it to the Jury as a question of *fact,*from all the evidence in the case, whether they were the same or not. The Patillo de.ed was not evidence to establish the location or boundary of the plaintiff’s lot further than as it contained declarations of the parties thereto, showing where they understood the boundaries to be, and *they*might have made these declarations erroneously or inaccurately. Nor can it be error, while stating the suggestion of the plaintiff’s counsel on the one side and allowing it its proper force, as showing that the parties to the Prtillo deed did declare the Riley lot co-terminons with the Gordon line, to submit also to be weighed by the Jury, the suggestions on the other side of the probabilities of inaccuracy or error in this declaration.

The counsel for the plaintiff insists that the *termini*of every deed being a question of law, the Judge was bound to say what were those *termini,*and therefore to instruct the Jury that *in laxo*the land conveyed by the Patillo deed was co-terminous with the Riley lot, and that it could not be so if there were a slip or interval, however small, between them. So it would be, if there were *no other*description in the Pa-*182tillo deed than that relied upon; but there was another and a more particular description, and the latter, if *it varied from the former,*was to be preferred; and whether it did va°r *mi’*WaS a ciaes^011 fact- His Honor did not say that in *law*“adjoining” might mean “ near,” but he left for the consideration of the Jury whether *in fact*this expression might not have been inaccurately used, as in common parlance it some times is, for “ near;” and this was left, not for the purpose of controlling the operation of the description, but as tending to account for a mistaken representation .of the parties.

It is not unimportant to remark that in relying on the Pa-tillo deed, as evidence of the boundary of his lot, the plaintiff rendered the whole of it evidence for that purpose. He could not insist on a part of the declarations of Simpson and Patillo therein contained and reject the rest. Now, if the matter in controversy is to be determined by these declarations, it must be decided against the plaintiff. They declare the Gordon line and the plaintiff’s line the same, but at the same time they fix that line as leaving 24 feet for the Patillo lot on Hay Street — that is, they declare the line 1, 2, to be the common eastern boundary of the Gordon acre and the plaintiff’s lot.

We have gone more into detail in the examination of this case than at first seemed necessary for the decision of the matter submitted to us, or than was apparently called for by the sum in dispute. But no doubt the *controversy derives*its principal importance from the effect it may have on the conflicting titles of the parties, and a few feet more or less of front in a town lot may be of considerable value. Besides as the determination of this suit does not decide the question of title, and as it is possible, notwithstanding the care which has been taken in stating the case, that we may not have precisely understood all its minutiae, (and in a question of disputed boundary, every circumstance, however minute, becomes of consequence,) we prefer that the parties should have an opportunity of seeing how the case was here regarded, so that no permanent injury may result from any misapprehension of the facts on our part.

*183We see no ground upon which we can pronounce that the judgment below ought to be reversed, and we therefore affirm it with costs.

Per Curiam. Judgment affirmed.