The opinion
Avery, J.
(dissenting): It was conceded that the call from a known beginning “nmning south 360 chains to a stake supposed to be in Stokley Donaldson’s line” would not control course and distance under the'ruling in Mizzell v. Simmons, 79 N. C., 182 , even where the location of the line called for was unquestioned and no difficulty would arise about the point where an extended line would intersect with the “Stokley Donaldson line,” but the question presented by the appeal is whether the Judge erred when he refused to charge the jury that the two calls “South 360 chains to a stake, supposed to be in Stokley Donaldson’s line, thence with his line 390 chains to his north-east corner,” were too vague and uncertain to vary the course and distance called for in the grant,” though the defendant offered evidence “tending to show the location of the Donaldson line as contended for by him,” viz., where be contended the extended line intersected.
The Court instructed the jury in substance that if the Stokley Donaldson line could be ascertained with “mathematical certainty,” the first call taken in connection with the second would, be construed so as to give effect to all of the descriptive words and would'extend the first line to the Donaldson line, and run with it the distance called for. If *868 the first call had been for stake “m” Stokley Donaldson’s line and that line had been at the time of taking out the grant “an established line or capable of being then established ,” then, upon the authority of Mizzell v. Simmons (on page 187) and Carson v. Blount, there cited, it would have been competent, by a survey of the Donaldson grant, to establish the line called for and then extend the first line till it should intersect with it. This would be done upon the fundamental' maxim, that the law regards as certain whatever can be made certain with the data available for the purpose. The opinion delivered bj Justice Bynum, in Mizzell’s case, that a line which was capable of being established would control distance as effectually as one actually marked, finds support in a long line of decisions. Judge Peaesoníii Oornv. McCrary, 3 Jones,496, said of asimilar line: “It makes no difference whether it is a marked oí-an unmarked or mathematical line, as it is termed in the case, provided it be the line which is called for.” In the same opinion he defines a mathematical line as one not marked but ascertained by running the call from one known corner to another. It is admitted that there was evidence tending to show the location of the Donaldson line, that would have been intersected by extending the first call. The same learned Justice, in Graybeal v. Powers, 76 N. C., 66 , announces the doctrine distinctly that whenever a line of another tract (whether a marked or mathematical line) is called for, course must be disregarded, if the jury find that the evidence is sufficient to locate the line mentioned.
It being conceded then that there was testimony tending to locate the line mathematically, it follows upon the authorities cited above that distance' must be disregarded, if the jury think it established mathematically by running between two known corners, just as if there had been additional evidence that it was marked. If there is any estab *869 lished rule of construction which would require that the second line should be run direct to the .Donaldson line, if the jury considered the evidence sufficient to locate it, the judge did not err in his instruction to the jury that if they found from the evidence that the Donaldson line had been run out and marked and located, or that it “ was susceptible of being located to a mathematical certainty,” then the second call would be run to, and then with that line according to the call. If the Donaldson line could be ascertained with mathematical certainty (that being a question for the jury when the testimony was conflicting) the call “ thence with his (Donaldson’s) line would be according to all of the authorities, more certain than the other description “ East 390 chains to his north-east corner.” But it is a familiar and well established rule that in cases like this the line must be run so as to fulfill both descriptions as near as possible. Buckner v. Anderson, 111 N. C., 572 ; Shaffer v. Hahan, Ibid, 1; Proctor v. Rowe, 4 Dev., 670 ; Shultz v. Young, 3 Ired., 385 . “ It is a leading rule in the construction of all instruments (said Judge Gaston in Shultz v. Young, supra), that effect should be given to every part thereof, and in expounding the description in a deed or grant of the subject matter thereof they ought to be reconciled if possible and as far as possible. If they cannot stand together, each of them is to be considered as declaring the intent of the parties. The liues of other tracts may be as notorious and certain as any natural object, and by making one of these lines a part of the description of the thing granted, the parties represent it as a known line by which the certainty of the thing granted is defined.” Upon the principle stated, the Court held in that case that in order to fulfill the whole of a description from a certain point “ South with A B’s line 310 poles to C D’s corner,” where the direction of C D’s corner was at *870 right angle with that of A B’s line, it was proper to run the distance called for 310 poles with A B’s line, and thence direct to C D’s corner. Our case presents the question whether precisely the same leading purpose of the following, two descriptions, whether they can be reconciled, would not, as the Judge told the jury, extend the distance so as to reach the Donaldson line, if in the opinion of the jury it was properly located, and meet the description fully by running with it to'the objective point called for. In this way, the three purposes of the grantor, to run with a certain line, to run a certain distance, and to reach a given object would all be carried out. Among the older cases which recognize the doctrine of diverging from a course so as to run with a natural boundary and return by the most direct route to a known objective point, is that of Cherry v. Slade, 3 Murphy, 82, and among the later cases that of Long v. Long, 73 N. C., 370 .
The principle which governs this case was recognized by both parties in Buckner v. Anderson, supra, but the controversy grew out of the difference as to its proposed application. Upon looking into the facts, it is manifest that the ruling in that case sustained the instruction excepted to in this.
I do not think that the Court can take judicial cognizance of the history of land grants, certainly outside of what appears in the judicial annals of the State. But even the judicial history indicates that the original grantee, under whom the defendant claims, obtained patents for large bodies of land covering a considerable portion of many Counties, notably Yancey, Madison, Buncombe and Haywood, and-that-a large number of small land owners trace their titles to that source. I cannot concur in speaking disparagingly of any title acquired in a way that the law pronounces legitimate. Proprietors of large bodies of *871 territory and owners of small homesteads should feel that they meet with equal favor before the Courts, and even claimants under tax titles, which will rarely if ever be found valid where they were executed before the passage of the statute regulating the sale of land for taxes, which is now in force, are entitled to the, full protection afforded by the laws. It is true that nearly all of the surveys made a hundred years ago, whether for large or small tracts, covered far greater acreage than they purported to include, and many grants for small tracts embraced within their limits proportionally as great an excess over the acreage called for as the large grant offered in this case would cover, if surveyed according to the contention of the defendant. "We cannot make a rule for large tracts without disturbing the principles under which the boundaries of smaller ones have by common consent been settled.