Doe v. Roe

• Decision Date: 31 December 1825
• Citation: 11 N.C. 116
• Court: North Carolina Supreme Court
• Parties: DOE ON DEMISE OF TAYLOR v. ROE AND SHUFFORD.

11 N.C. 116

DOE ON DEMISE OF TAYLOR

v.ROE AND SHUFFORD.

SUPREME COURT OF NORTH CAROLINA

DECEMBER TERM, 1825.

1. Common reputation is evidence in questions of boundary; and in ascertaining Earl Granville's line astronomical observation is a more certain mode (the latitude of the line being given) than an actual running of the line from a certain point designated on the seashore as its beginning.

2. The sovereign power cannot be estopped. Where the crown, in 1768, granted lands to A. which it had previously granted to Earl Granville, the grant in 1768 was void; and as the State succeeded, upon the Revolution, to Earl Granville's right to the land, a grant made by the State since shall be preferred to the royal grant in 1768.

EJECTMENT. Appeal from IREDELL. The plaintiff's lessor claimed the land in dispute, lying in Lincoln County, by virtue of a grant issuing to his father in 1768 from the crown of Great Britain.

The defendant claimed the land under a grant from the State of North Carolina of recent date, and contended that the land was within the boundaries of Earl Granville's grant, which being antecedent to that under which plaintiff claimed, the latter conveyed nothing to plaintiff.

On the trial before Nash, J., it appeared that from the year 1753 acts of the Legislature of North Carolina had been passed, at various times, up to 1779, which acts call for and point out Earl Granville's line as the boundary between different counties; that in 1772 the line so called for by those acts had been actually run and marked as Granville's line by commissioners appointed for that purpose, and has ever since been reputed the line; but it did not appear how the line so run was ascertained to be Granville's line; nor did it appear to have been ascertained for any other purpose but that of marking the limits of the several counties bounded by it. The land in dispute lay to the northwardof the line run as Granville's, several miles.

The defendant proved that the latitude of the town of Lincoln-ton had been ascertained by observation, and that from Lincolnton to the Granville line extended would be about 2 miles going due north; and further, that from the observation which had been taken, the latitude of Earl Granville's line, as given in his grant, would make the line pass to the northward of Lincolnton between 2 and 3 miles.

On the part of the plaintiff it was contended that although the grant of Earl Granville called for a parallel of latitude as the southern boundary of the territory granted in it, yet it called also for other boundaries more certain in their nature and more easily ascertained, viz., Chickmacomack Inlet and the town of Bath; and that from a point north of Bath, as specified in the grant, Earl Granville's line was to be run west;* and that he could not be deprived of his land, unless it was shown that it lay to the northward of that line so run, which was denied to be the same with the line run and marked as Earl Granville's line.

It was further proved that, according to the maps examined by the witness (Mr. Mushat), the 35th degree of north latitude, measured on those maps by the scale upon them, was 12 miles to the south of the line laid down by them as the division line between the Carolinas; from the

35th degree of north latitude to the land in dispute (supposingit to be due north from Lincolnton) would be 43 miles over hilly, broken ground; that the maps were not accurate, and that 34 minutes would measure 39 miles, and the witnesses could not say that the distance of 43 miles mentioned above would be more than 39 miles air measure.

The plaintiff, and those under whom he claimed, never had actual possession of the land, but, living in another county, the defendant had acted as his agent for many years in taking care of the land and paying taxes for it. Defendant admitted himself to be in the adverse possession.

The court charged that if the jury were satisfied that the land in dispute was within the chartered limits of Earl Granville's land, the plaintiff was not entitled to recover. There was a verdict for the defendant, and a new trial moved for on the ground that the jury should have been instructed that the mode by which the defendant ascertained the situation of Granville's line was not such as to entitle it to any weight in deciding the question where that line was; and further, that the jury should have been instructed that, although the land was to the north of Granville's line, yet the plaintiff was still entitled to recover, as the defect in his title was cured by the Bill of Rights.

A new trial was refused, and from the judgment rendered plaintiff appealed.

HENDERSON, J. In running a long line upon a parallel of latitude, the only mode of correcting the variation from the true line is to resort, from time to time, to observations.

HALL, J. I can see no objection to the charge given by the judge to the jury in this case. The question of fact was whether the lands in dispute lay within the boundaries of the lands granted by the king to Earl Granville; nor can I see any legal objection to theevidence offered to the jury relative to that fact.

I would also think the question of law arising in the case free from doubt, if we take as true what the jury have found by their verdict, that is, that the land in dispute lies within the limits of Earl Granville's grant from the crown.

The plaintiff also claims title under a grant from the crown in 1768, subsequent to the date of Earl Granville's grant. As the king had conveyed title to the lands in dispute to Earl Granville, it follows that at the time of the grant to the plaintiff's father he had no title to the lands,

and of course could convey none. "For if he enters without title, or seizes land by a void or insufficient office, he is no disseizor; but if the king by letters patent grants land so seized, and the patentee enters, he is a disseizor, because he has time to inquire into the legality, which it is supposed the king has no leisure for." (Guilliam's Bac. Abr., "Prerogative," F., 3.) Therefore, as the plaintiff's pretensions to recover in this action rest solely upon the grant from the crown, he must fail; nor do I think his claim is in any respect bettered by the revolution in government which took place afterwards, when the State succeeded to the rights of the crown as well as to those of Earl Granville; because if, at that time, Earl Granville had not disposed of the lands, they still belonged to him, and, consequently, title to them vested in the State, and that title was not in any respect affected by any rights derived from the crown, because whatever right it once had to the lands, it had conveyed those rights to Earl Granville. For these reasons I think the rule for a new trial must be discharged.

HENDERSON, J. It is contended by the counsel for the defendant that were it true that the sovereign power, like an individual, could beestopped, yet where the conveyance is by grant without warranty, express or implied, as in the present case, there can be no estoppel ; and he refers the estoppel arising from bargains and sales, and other conveyances deriving their efficacy from the statute of uses, entirely to the express warranties which are attached thereto; and in feoffments, to the implied warranty arising thereon before the statute of quia emptores, from the services due from the feoffee and his heirs to the feoffor and his heirs; and since the statute, to the warranty implied during the life of the feoffee, probably from the nature of the conveyance, or from an adherence to the rule after the reason of it had ceased, a thing not very uncommon in our law, as we still retain many rules growing out of the doctrine of feuds, although feuds have long since ceased among us. I think that the counsel is wrong in attributing the estoppel to the warranty. The estoppel arises entirely out of the affirmations of matters of fact made in the deed. He has confounded estoppels and rebutters; things essentially different in their nature, although frequently producing the same results. A rebutter operates on the right of action to the estate. It operates as to strangers as well as between parties and privies, which is a consequence flowing from its operation on the right to the estate. An estoppel operates entirely as to facts; its effect is to conclude the parties from making, and of course proving, the facts to be otherwise than they are stated or acknowledged to be in deed or other transaction out of which the estoppel arises. My collateral ancestor deprives me of my estate, and makes a feoffment in fee to a stranger with warranty, and

dies; the warranty descends on me as his heir (and this is done under . such circumstances as that it does not amount to what is called a warranty commencing by disseizin). In any controversy which I may have with any one in regard to the lands, after the warranty has descended on me, this feoffment and warranty will bar my right of action to the estate. If I had lost my right of entry when the warranty...