Ipock v. Gaskins

• Decision Date: 02 April 1913
• Citation: 77 S.E. 843,161 N.C. 673
• Parties: IPOCK v. GASKINS et al.
• Court: North Carolina Supreme Court

77 S.E. 843

161 N.C. 673

IPOCK v. GASKINS et al.

Supreme Court of North Carolina

April 2, 1913

Appeal from Superior Court, Craven County; Bragaw, Judge.

Action by J. J. Ipock against Freeman Gaskins and others. Judgment for defendants, and plaintiff appeals. Affirmed.

Where a deed refers to another for a description, the latter must be taken as if embodied in the deed referring to it, and the two so construed together that the premises described in the first will pass under the second deed.

This proceeding was brought for the purpose of processioning the lands of the parties, who are adjoining proprietors, and of ascertaining and declaring where is the dividing line between them. The case, in one view of it, turns upon the true location of the line which is first called for in the deeds under which the plaintiff claims as color of title. The plaintiff introduced and read in evidence a grant from the state to Samuel Lawson for 200 acres of land, and offered evidence to prove that it covered the land in controversy but there was no evidence connecting his deeds with this grant, so that he claimed the land altogether under color of title and adverse possession, and for this reason the proceeding was finally resolved into an action of ejectment. Plaintiff relied on a deed from Bryan H. Gaskins and others heirs of David Gaskins, to Alonzo Gaskins, and mesne conveyances to himself. They described the land as 225 acres beginning at a black gum, the first corner of the Lawson patent, and running with the west edge of the Shitton Bridge swamp to Pamlico road, thence north up the said road to a post oak, the dividing corner between Daniel Gaskins and Silas Gaskins in Bixley's patent, and thence to the beginning, "being a part of the land purchased by David Gaskins from James Gaskins." The deed from James Gaskins to David Gaskins, dated November 13, 1856, and mentioned in the deed to Alonzo Gaskins, describes the land as beginning at the same black gum, which is the first corner of the Lawson grant, "and running with the edge of the swamp on the east side of Pamlico road to a post oak, the dividing corner between Daniel Gaskins and Silas Gaskins in the Bixley patent," sold by Levin Gaskins, and thence to the beginning, containing 125 acres. The post oak is the same corner called for in the Alonzo Gaskins deed and the mesne conveyances from him to the plaintiff. The deed from Daniel Gaskins to James Gaskins, dated June 19, 1833, describes the land as "beginning at the black gum, first corner of the Lawson patent in the mouth of the swamp and running with the edge of the swamp on the east side to Pamlico road, and thence with said road to a post oak, the dividing corner between said Daniel Gaskins and Silas Gaskins, in Bixley's patent, sold by Levin Gaskins, and thence to the beginning, containing 125 acres." There was evidence that the last two deeds covered the same land, and that the beginning corner in the deeds of the plaintiff was not on the west edge of the swamp, and, to reach the west edge, it would be necessary to run some distance across the north edge of the swamp, and, further, that you would not reach Pamlico road by running along the western edge of the swamp, as the two did not intersect; but the call for a line along the west edge would intersect the Cool Spring or Poley Bridge road which runs about east and west, the Pamlico or Core Point road running about northeast and southwest and some distance away. The map used at the trial and before this court shows this to be the case. In order to reach Pamlico road, the line along the western edge of Shitton Bridge swamp would have to be extended some distance along the edge of another swamp, called Poley Bridge swamp or branch.

Defendant introduced a deed from Daniel Gaskins to John S. Gaskins, dated March 16, 1844, for a tract of land beginning at the mouth of Griffith branch at the point 1, as indicated on the map, and running various courses to a stake on the northeast edge of Shitton Bridge swamp, and thence down the same, which would be on its east edge, to a gum in the edge of Gatlin's old millpond, and thence by various courses to the beginning. The defendants claim either as heirs of John S. Gaskins or by deeds from those who were his heirs. It was conceded that neither of the parties had shown any paper title connected with the Lawson grant; and it was also admitted that the Lawson corner was at the black gum indicated by the letter "A" on the map. With reference to the calls of the deed from James Gaskins to David Gaskins, viz., "Beginning at the black gum, first corner of Lawson's patent in the mouth of the swamp, and running with the edge of said swamp on the east side of Pamlico road to a post oak," and especially the last call, which is italicized, Henry Gaskins, one of the heirs of David Gaskins, and under whom the plaintiff claims by deed to David Cogden, as one of his mesne conveyances, testified: "Q. There is the gum up there, and there is the Pamlico road down there [indicating]. Don't you know, from Lawson's gum on the east side of Pamlico road you couldn't run at all? A. It is evidently on the east side of the swamp to Pamlico road. It is evidently a mistake of the draftsman--a mistake somewhere. Q. You never claimed on the other side of Pamlico road? A. No, sir; I never claimed on the south side of the road, or the east side, whatever you call it. Q. Where is that deed, the original deed made to your father? A. I don't know. Q. Which one of your children had it? A. I could not answer that question. I don't know."

There was much testimony as to the adverse possession of a part of the Shitton Bridge swamp, the locus in quo, by the respective parties. The presiding judge explained the contentions in the ease, and the questions arising upon the evidence, to the jury, defining what is meant, in law, by adverse possession sufficient to ripen color of title. He left it to the jury to determine whether the parties in the deeds of the plaintiff intended to call for the east or west edge of the swamp, for the purpose of settling a question of estoppel, as it was called, which arose between plaintiff, claiming under Alfred Gaskins, and some of the defendants, claiming from the same source, charging the jury that if the call in the deed of March, 1884, to Alonzo Gaskins, was not intended by the parties to run with the west edge, but with the east edge thereof, as contended by the defendants, there would be no estoppel as between the plaintiff and those of the defendants, who also claim from Alfred Gaskins in the chain of deeds, as the said parties would not, in that case, claim the same land from a common source, but that, notwithstanding this finding, if made by the jury, they must consider the deed of Bryan Gaskins and others to Alonzo Gaskins, dated March, 1884, as sufficient color of title for him to be ripened into a good title by the requisite adverse possession of the land, and plaintiff's right to their verdict would then depend upon the nature of his possession, to be ascertained by the jury under the evidence and the instructions of the court in regard thereto.

The jury returned a verdict in favor of the defendants, finding that plaintiff's western boundary is the east edge of the swamp, and not, as contended by him, the west edge, and that said east edge of the swamp is the divisional line between plaintiff and defendants. Judgment was entered upon the verdict, and plaintiff appealed.

A. D. Ward, of New Bern, for appellant.

D. L. Ward, of New Bern, for appellees.

WALKER, J. (after stating the facts as above).

It appears plainly, from the undisputed facts of the case, that the call in the plaintiff's deeds for the "west edge" of the swamp was a clerical mistake, and was clearly intended for the east edge; the word "west" having inadvertently been substituted for the word "east" by the draughtsman. When this is shown to be the case, it has been held frequently in this and other jurisdictions that the court will itself rectify the error by applying the call to the true line intended by the parties when the other calls indicate the intention, and the matter is free from any doubt or uncertainty. Person v. Roundtree, 2 N. C. 378; s. c., 1 N.C. (Mart.) 69. When passing upon a similar question in Mizell v. Simmons, 79 N.C. 190, the court held that, where "the mistake is obvious and is fully corrected by the other calls of the deed and the plat annexed, it presents no difficulty, and the courts will construe 'east' to mean 'west' to correct a mistake, when the intent of the parties appears, and the means of correcting it are presented;" citing Cooper v. White, 46 N.C. 389; Houser v. Belton, 32 N.C. 358, 51 Am. Dec. 391; Campbell v. McArthur, 9 N. C. 33, 11 Am. Dec. 738. In the last-cited case, the court fully approved this instruction of the court to the jury: "That a mistake in a course or distance should not be permitted to disappoint the intent of the parties, if that intent appeared, 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"--and added: "So that I cannot think any difficulty will present itself in ascertaining the land intended to be conveyed by the deed, when recourse is had to the patent. The grantor has referred to this as the means of correcting any mistake in the description of the land, and of ascertaining what his intent was in making the deed. [Blake v. Doherty] 5 Wheat. 359, 362 [5. L.Ed. 109]. Words shall always operate according to the intent of the parties, if by law they may; and, if they cannot operate in one form, they shall operate in that which by law shall effectuate the intention. This...