Hinchey v. . Nichols . , 72 N.C. 66 ( 1875 )

The plaintiff claims a tract of land described as follows, in the grant (1789) and mesne conveyances: "A tract of land containing one hundred and seventy-three acres, lying and being in our county of Wilkes, on a big branch of Luke Lee's creek, beginning at or near the path that crosses the said branch that goes from Crane's to Sutton's, on a stake, running west twenty eight chains and fifty links to a white oak in Miller's line," and so all around calling for stakes at every corner.

"A big branch of Luke Lee's creek," supposes several big branches. Which big branch; is left indefinite. If an indefinite description will admit of comparison, the next description, "a stake at or near the path, that crosses the said branch, that goes from Crane's to Sutton's," is more indefinite. We are not told on which side of the branch this stake or point was fixed; nor are we told whether it is ten, fifty, one hundred yards, or any other distance from the branch. So the description is fatally defective, and it cannot be made definite by parol evidence, for that would be to make a beginning corner, and not to find acorner, by fitting the description to the thing, for nothing is described. The cases, Archibald v. Davis, 5 Jones, 322; Mann v. Taylor, 4 Jones, 274, cited by the defendant's counsel, dispose of the question.

Had "the white oak in Miller's line" been identified, the description may have been helped out, and the beginning corner found by nursing the lines, but unfortunately for the plaintiff, neither the white oak or Miller's line can be found. So that passes for nothing; and we have no description by which the land can be identified, and must come to the conclusion that the surveyor made the plat on which the grant issued without any actual survey, and without going into the woods at all to mark any corner, or fix any memorial by which the land can be located. Error.

PER CURIAM. Venire de novo.