Campbell v. McArthur

• Decision Date: 30 June 1822
• Citation: 9 N.C. 33
• Court: North Carolina Supreme Court
• Parties: ROBERT CAMPBELL AND OTHERS v. McARTHUR—From Bladen.

9 N.C. 33

ROBERT CAMPBELL AND OTHERS

v.McARTHUR—From Bladen.

SUPREME COURT OF NORTH CAROLINA

JUNE TERM, 1822

1. A deed altered after its execution is good, if the alteration be made with the knowledge and consent of the grantor; and the part altered need not be registered to make it color of title, for an unregistered deed is color of title.

2.A mistake in the course or distance of a deed should not be permitted to disappoint the intent of the parties, if that intent appears, and if the means of correcting the mistake are furnished either by a more certain description in the same deed or by reference to another deed containing a more certain description.

EJECTMENT. The land in dispute was granted to Thomas Locke on 20 February, 1735, and in the patent was described as being "640 acres lying and being on the northeast side of the northwest branch of the Cape Fear River, beginning at a hickory on the river bank, thence north 75 east 160 chains to a stake, then south 15 east 40 chains, thence south 75 west 160 chains to an elm on the river bank, thence with the river to the first station."

Thomas Locke conveyed to Leonard Locke, and Leonard Locke conveyed to Neill McArthur; these facts appeared from the recital in a deed from Neill McArthur to his son, Archibald McArthur, for the lands in dispute. This deed bore date 4 July, 1777, and under it defendant claimed.

The plaintiffs, declaring their inability to deduce title by a regular succession of conveyances, relied upon color of title, and to support it produced two deeds: first, a deed from James Burgess to Farquhar Campbell, dated in 1789, for one moiety of a tract of land described as follows: "Lying and being on the northeast side of the northwest branch of Cape Fear River, beginning at a hickory, thence north 13 east 160 chains, thence north 15 east 40 chains, thence south 70 west 160 chains to an elm on the river bank, thence with the river to the first station, containing 640 acres, patented by Thomas Locke on 20 February, 1735."

Secondly, a deed from James Hogg, dated in 1789, conveying to Farquhar Campbell one moiety of the land included in the patent to Thomas Locke.

The hickory and elm mentioned in the deed from Burgess, it was contended, are the same which are referred to in the grant to Thomas Locke.

Farquhar Campbell, in 1798, took an actual, adverse, and exclusive possession of the lands which had been granted to Thomas Locke, and

his possession was continued by himself, or those claiming under him, without interruption, until February, 1807. Some time between 1798 and 1807, Farquhar Campbell died, having devised the lands to his sons Robert and James, as tenants in common; James died after the death of his father, leaving four children, who, together with Robert Campbell, are the lessors of the plaintiff.

In February, 1807, the defendant, acting under a power of attorney from Archibald McArthur, before mentioned, obtained the possession and has since kept it. This action was commenced in 1807.

Archibald McArthur was born in 1772. In 1782 he went to England, and has continued beyond seas ever since.

Defendants contended below, first, that the deed from Burgess to Farquahar Campbell was executed with blanks for the day of the date and the consideration, and that these blanks were filled up after the execution of the deed. In proof of this they produced two copies of the deed certified by two different registers, in which the day of the date and the consideration were omitted, and relied further on different shades in the ink with which the deed was written. Secondly, that the deed did not cover the land in dispute, if the boundaries were run as expressed therein according to course and distance, and that here no reason was furnished for a departure from course and distance. Thirdly, that Archibald McArthur, being beyond seas, was notaffected by the statute of limitations, and that his title was saved by the exception in the statute.

The court, leaving it to the jury as a matter of fact to ascertain what was the situation of Burgess' deed at the time of its execution, stated as the law that if the deed had been executed in blank, and the omissions were afterwards supplied, unless with the knowledge and consent of the grantor, the deed would thereby be avoided and could not operate as color of title; that color of title included, at least in its definition, such a deed or instrument as, if executed by the real owner, would pass the title in the land.

As to the second objection, the jury was instructed that all rules of construction and boundary were intended to ascertain and advance the real design of the parties; and that a mistake in a course or distance should never be permitted to disappoint the intent of the parties, if that intent appeared and the means of correcting the mistake were furnished, either by a more certain description in the same deed or by reference to another deed containing a more certain description. That here, as the deed called for the beginning of Locke's patent, as well as the elm, the termination of the third line of said patent, and as the deed declared the intention to be to convey the 640 acres of land

patented by Locke, the jury, if it was necessary, in order to accomplish the intent of the parties, should disregard a mistake in the courses of the deed, and pursue the real and true boundary of the patent, to arrive at the corner elm on the river.

As to the statute of limitations, the court charged that as Archibald McArthur was of full age in the year 1793, and was under no disability but that of being beyond seas at the time the adverse possession commenced, and as the saving in the statute for persons beyond seas has the proviso that they shall, "within eight years after the title or claim becomes due, take benefit and sue for the same," and as he had not done so within eight years, he was clearly out of the saving of the statute.

There was a verdict for the plaintiffs, and defendant moved for a new trial on the grounds of misdirection in law and a finding-contrary to evidence. The motion was overruled, and from the judgment rendered defendant appealed.

TAYLOR, C. J. This is a motion for a new trial on the part of the defendant, who alleges that the court misdirected the jury, and that...