#### Den *ex dem.*Dennis Ingram *v.*Thos. Colson, *et al.*

Where the parties to a deed intended to convey only land, to which the vendor had title, and also that it should set out the boundaries of the grant to him — but the land was especially surveyed and corners marked, and the deed made according to the survey, its courses are not to be controlled by those of the grant, and if it covers more land than the grant-, it. is color of title as to the excess.

A.question of boundary discussed by HiuiDnnsoa', C. J.

Ejectment, tried on the last circuit, at Anson, before Daniee, Judge.

The plaintiff claimed under a grant to bis lessor, made in the year 1823, which covered the land in dispute.— The boundaries of this *grant are represented*in the diagram by the lines D. I. K. Gr.

*521The defendants contended, that the land covered by the grant to *Ingram,*was included within the boundaries of á grant to one *John Clarke,*dated in 1746, and that if it was not, that tiiey, and those under whom they claimed, bad been twenty-one years in possession of it, under known and visible boundaries, with a color of title, and were protected by the act of 1791, *(Rev. c.*346,) for limiting the claim of the state.

The land granted to *Clarke,*was bounded as follows: Beginning at a locust on the south bank of the river, running south 30 degrees west 160 poles to a pine ; thence south 60 degrees east 190 poles, to a gum ; thence north 30 degrees cast 184 poles to a red oak, on the bank of the *river;*thence to the beginning.' The. locust was admitted to have stood at point A. in the diagram; the courses aiid distances of the boundaries are from A. to E. F. and G. upon the diagram. It was proved that a red oak, marked as a corner, formerly stood at G. and was an old tree.

For the plaintiff' it was contended, that the grant to *Clarke*should be confined to the lines A. E, F. and G. being the courses and distances of its boundaries. On the other side it was urged, that its boundaries were A. B. C. and D. A pine marked as a corner, stood at B. which was about 80 yards over the distance mentioned in the grant, viz: 160 poles; the mark upon the pine was made many years after the date of the grant to *Clarke.*At Y. there was a gum marked as a corner, but much younger than the grant to *Clarke.*At D. there was a' white oak and a red oak marked as corners, one •sixty-eight,and the other forty-six years before the survey. In 1765, *Clarke*conveyed the land granted to him to one *Walker,*describing it exactly as it was described in bis grant. *Walker*conveyed to- *Colson,*the ancestor of the defendant, but before the deed was executed, a surveyor run off the land beginning at A- and running thence to B. C. and D.; the deed from *Walker*to *Colson*described the land exactly as it was in *Clarke’s*grant, except at I). it called for an oak on the river, instead of a red oak on the river. The white oak at D. is the beginning of *522a grant which issued to one *Stephens,*in 1766, which is represented by the lines D. P. and R. " From D. to P. line trees were found corresponding in their ages, to that of this grant. In that patent, the white oak, its beginning, is. said to be *Walker’s*lower corner, and was thus described in several mesne conveyances, which were set out in the case. It was proved, that the pine at B. the gum at Y. and the white oak at D. had been called and known as *Walker’s*and *Colson’s*corners, *for*more than twenty-one years before the grant to the lessor of the plaintiff; and further, that the defendants, or those under whom they claimed, liad been in possession for more than twenty-one years before the same period.

His Honor charged the jury, that if they thought the pine at B. and the oak at D. were tho corner trees called for in *Clarke’s*grant, the courses and distances mentioned in the grant would be controlled by the proof of the corners, and the grant would extend to them ; but if they should find that those trees never were intended to be the corners of that grant, or if the corners were unknown, then they must determine its boundaries by its courses and distances, until they came to the third line, where the river was called for, and that being a certain termination of the third line, it must be extended to the river *;*that if the marks were too young, or the other evidence did not justify them in finding that either the lines C. D. or Y. D. was the third line called for In the grant, and they should be driven to the courses and distances to locate the grant to *Clarke,*they must then adopt the lines A. E. F. G-. in which event, the land granted to the lessor of the plaintiff would not be within the boundaries of that grant. That if they thought the line F. G. to be the third line of *Clarke’s*grant, another question arose, viz: whether the defendants or those under whom they claimed, had been twenty one years in possession of the land in dispute under known boundaries, and with a color of title ; that the act of 3791 (I&u. c. 346.) required three things to bar the state, or those claiming under it, viz: twenty-one years possession', *523known and visible boundaries, and a color of title ; that if the jury believed the evidence, the defendants possession had been for more than twenty-one years, and the marked pine at B. the gum at Y. and the white oak at D. were visible boundaries of that possession, within the meaning of the legislature. That the defendants contended the deed from *Walker*to *Colson,*was a color of title as it was urged that it'extcndcd to the lines Y. D. or C. D. and that the description of the boundary-in the deed was different from that in the grant, as one called for an oak, and the other for a red oak; and further, because it was proved that upon the purchase of *Colson*from Walker, the lines were actually run to the white oak at D. and it was then marked as a corner. His Honor left it to the jury to say, whether the description in the deed and the grant, were so different as to vary the boundaries of the first, from those of the last, and whether the variance was so great as to make the deed cover land which the grant did not, informing them that it was color of title to all land it covered ; that if they believed the boundaries of the deed from *Walker*to *Colson*were the same as those of the grant to *Clarke,*and if the latter extended no further than the line F. G. in the diagram, then there would be no color of title beyond that line. That the plaintiff was entitled to recover unless the grant or deed covered all the land between the lines D. I. I. K. K. G. and the river, although the defendants might have had a continued possession of all that land under known boundaries.

The jury returned a verdict for the plaintiff, and upon a motion for a new trial the judge observed, that it was contended, that the deed from *Walker*to *Colson*was color of title for all the land within the boundaries surveyed before its execution, which were the lines A. B. C. and D. but that he thought it a question for the jury, whether the boundaries of the deed were intended to bo the pine at B. and the white oak at 1>. if they were, it was color of title up to those points, but if'it was intended only to follow the boundaries of the grant, if the latter fell short of the pointD. color *524of title under the deed also would. A new trial was refused, and the defendants appealed.

No counsel appeared for the defendant.,

Mendenhall, for the plaintiff,

cited *Smith*v. *Murphey, (Taylor’s Rep.*303.) *Person*v. *Rountree,*(l /A/?/. 378.) *Standen*v. *Bains, (lb.*238.) *Bradford*v. *Hill, (lb.*22.) *Fruity. Brower,*(2 *Hawks*337.) *Slade v. Green, (lb.*218.) *Tatum*v. *Sawyer, (lb. 227.) Tatev. Southard, (3 lb. 119.)*

Henderson, Chief-Justice.

—

Upon the third point in the, case, the color of title, the judge after having disposed of the actual title,-and limiting it to the boundaries of *Clarke’s*grant, and after pointing out a difference in the calls of the grant and those of *Walker’s*deed to *Colson,*the first calling for a *red*oak, and the latter for an oak only, at the termination of the third line, informed the jury that they must consider whether the descriptions were so different as to vary the boundaries of the deed from those of the grant, and whether the deed covered all, or any of the land in dispute, if it did, it was color of title for so much and no *more*; that if they should be of opinion, that the boundaries of the land described in *Clarke’s*grant went no farther than the line F. Gr. and if they should think that the boundaries of the deed from *Walker*to *Colson*were the same as the boundaries set out in the grant, then there would be no color of title. If there could be any doubtof what thejudge intended to say, and in fact of what he did say, it is rendered certain by his remarks on the motion for a new trial. The jury, he then observed, were to determine whether the boundaries of the deed were intended to be the pine at B. and the while oak at D. if they were, it was color of title; but if it meant to convey only the land described in the grant, and the grant slopped short of D. then would color of title under the deed stop whore the grant stopped. By this. I understand the judge to mean, if the calls of the grant and the calls of the deed were the same, (upon paper, upon their faces,) and there was nothing to control the courses and distances of the grant, that is, nothing to designate the pine, the gum, and oak *525called for in it, so that we must resort to course and distance to locate it; its location was also the location of the deed. In this I think the judge committed an error, for although the parties might have thought, and no doubt did think, that they were surveying the lands granted to *Clarke,*and that his grant covered all the lands described in the deed ; yet it is what the parties *actually did,*and not what *they thought*they did, (in this particular,) that we are to act on. Suppose in this case, it was proven, that the pine was marked at B. and the oak at D. as the pine and oak called for in the deed ; could it be said that these were not the actual boundaries of'the deed, because the parties thought that they were also the boundaries of the patent — would this displace the trees and obliterate the marks, and, cause them not to be the bounds described by, and called for in the deed? It is true, title passed no farther than the patent extended, because beyond that, the vendor had none, but still the pine and oak would be the *termini*of the deed, because they were the objects called for by it. The judge was mistaken in supposing, that because these were also the calls of the grant, and there being nothing to shew that they were the trees called for in it, and of course that the grant could not be extended to *them;*so neither could the deed, because the parties thought that the lands conveyed by the deeds were the same with those covered by the grant. The jury should have been informed, that if they believed the pine at B. the gum at Y. and the oak at D. were called for in either of the mesne deeds, that those trees were the boundaries of the deeds, and to them they should extend. I have no doubt but the evidence proved this ; for although the facts are evidently stated, as applying to the boundaries of the grant only, yet, enough appears to show that the deed from *Walker*to *Colson*should go to B. C. and D.; not because the grant calls for a *red*oak, and the deed for an *oak*only, but because it is shewn they were marked when the survey of the land was made, preparatory to the execution of the deed. I say marked, not only because the witnesses swear that they were then marked, but because the murks *526now found upon them, (except the gum, which is not found at C.) corresponds in age, with the date of the deed, and with the reputation of the neighborhood, that they are the hounds of *Walker's*and *Colson's*lands. The calls of coterminary grants and deeds, for a great number of years, also prove the white oak at D. to be *Walker's*lower corner. This appears, although it is evident that the case was made to locate the patent, and not the deed, as the age of the marks upon the pine is not stated, nor the date of the deed from *Walker*to *Colson;*it is only said that the marks on the pine were too young for the patent. We learn from,an incidental remark of the judge, that the marks on the pine correspond in age, with the date of *Colson's*deed. From this, I think it probable that the pine at B. and the oak at B. are the trees called for in the deed, and if so, what is there to control that description ; not the course and distance, because they are less certain than marked trees ; not- the patent, I think, for they were thought to be also boundaries of the patent; and if they are not, or rather are not shown to be, will that obliterate their marks and make them other than what the deed makes them, when proven to be the objects called for as its boundaries? Do they lose their identity, because another description is also given, which turns out to he a false one, or incapable of being ’ shown?' It is true, that when a thing is called for as having two identities or distinguishing marks, both capable of being ascertained, if they exist, as an oak with two chops upon it, and an oak with only one chop upon it is produced as the thing described, it is plain that this is not the oak called for, as that has two chops, and that shown has hut one. But the description here, is a pine, a gum and an oak, and the grant is not even mentioned. But suppose the deed had described them as the trees described in the *grant;*it only negatively appears, that they are not the trees called for in the latter. But suppose, it was positively proved, that they were *not,*which in this case could only satisfactorily appear by showing others. Here there are two descriptions, ■which create an ambiguity, for there is none upon the *527fact of tile deed. Which shall we take? The answer, by Lord Bacon. is, that which is best supported by proof. A thing dehors the deed is shown by parol, it is a latent ambiguity, and shall be explained by parol. I have supposed two things, neither of which' exist in this case; first, that the deed describes the trees as also the boundaries of the grant j and secondly, that other trees, besides the pine, the gum and red oak, are shown as those boundaries. If this would not control the description, when it is shown that this pine, this gum, this oak, are the trees called for in the deed, I cannot understand how the-mere, course and distance of the grant can control it, as no other tree is shown as the boundary of the grant. To adoptthis rule, would be to abandon a certain descx’iption under a pretence of greater certainty, and when called upon for this greater certainty, to refer to course and distance, which is admitted to be the least certain of any description, and only resorted to when all others fail. I must conclude, therefore, that whatever may have been the title of *Walker*to the lands without the grant, that his deed to *Colson*covered the lands up to those trees, if they are shown to be the trees called for as *termini*in his deed *;*and therefore, the deed was color of title up to them. It seems to me also, that the judge was too rigid in the rule respecting the *termini*of the grant; for if we are not permitted, in cases of very old grants calling for perishable *termini,*such as trees, to substitute something for the tree, which may long since have perished, or been destroyed ; such as a long continued possession under the grant, pointing to the place where the trees stood, and of the adjoining lands, the reputation of the neighborhood, and the calls of cotcrminary grants or deeds, we shall, in almost every case of old grants, be remitted to courses and distances, which will give in many cases, a different location to them, from that which they originally had. Í do not say tiiat this is one of the cases requiring it; it may, or may not be, and therefore, the new trial is granted on other grounds.

Where the calls of a grant, and the calls of a deed, or «f two deeds are the same, and the *termini*are unique; *528then as the *termini*are the same, the locations are the same, for there are not two objects of the same kind as those called for in the grant and deed. But where the *termini*arc not unique, as a pine, a hickory, an oak or a rock, as there are many pines, hickories, oaks and rocks, there may be proof to show that particular trees or rocks, are the trees or rocks called for in the deed, though there may be no proof, or not sufficient proof to show that they are the trees called for in the grant, and the proof not being sufficient to fix the location of the patent, cannot remove that of the deed, and transfer it to the location of the patent by its courses and distances. I think the facts in this case duly exemplify and illustrate the above positions.

Per Curiam. — Judgment reversed.