This action is for trespass on land. The entry and acts complained of were proved and defendants’ liability was made to turn on validity of plaintiff’s title, and that depends upon the sufficiency of the description of the land in a contract between Josiah White and Ben Ellyson, made March 10, 1875, (Exhibit “A”), containing this recital, “that said White has sold said Ellyson 30 acres of land, lying and being in the State and county aforesaid, adjoining the land of E. P. Simons and the land of the said White, containing 30 acres by actual survey, for which the said Ellyson is to pay three hundred dollars, payable in three years.” The locti-s is the western part of a tract of 112 acres owned by said White, known as the Amos Harrell tract.
There was undisputed evidence that White agreed to sell Ellyson 30 acres off the western portion of the Harrell tract, and that Ellyson moved on said 30-acre tract, cleared ten or twelve acres and built a house thereon, also that White and Ellyson got a surveyor and went down to that side, saying that they were going to make a survey. On their return the contract, Exhibit “A”, was written and signed, having a plat, and Ellyson went on the 30-acre tract.
It was also proved that when they went down to make the survey, as they said, there was no marked line running through the tract on that side, but in a year or two after the contract, there was a marked line of comparatively new cutting of 30 acres where Ellyson lived from the western side of the Harrell tract and that Ellyson cleared up to the line and put his fence upon it; also that White (father of the witness) and Ellyson cc always recognized this marked line as the division line between them.”
*62There was evidence tending to show Ellyson’s continued occupation of tbe cleared land and of bis bauling wood off tbe woodland.
The defendants objected to tbe admission of tbe above evidence on the ground that tbe written contract was too vague to receive aid by parol evidence, which objection was not sustained.
Tbe Court, among other matters not excepted to, charged tbe jury that the description containing contract of Josiah White to Ben Ellyson was not sufficient to cover and describe the land, nor to permit parol evidence to identify the land therein referred to, unless at time and just before contract was signed there had been a survey of the 30 acres marking off the same by visible lines and boundaries, and to which this writing referred when it said “thirty acres by actual survey.” That if such survey was actually made defining land by known and visible boundaries and Ben Ellyson entered under his contract, referring to such survey, and built, and cleared land thereon, and occupied same continuously, claiming to own land referred to in his contract to the boundaries of the survey, which were known and visible — then the effect of such occupation and claim would extend to outer boundaries of survey, and if continued sufficient length of time would mature title to such boundary.
The time required was first explained more particularly in part of charge not herein set out.
Defendants excepted to such portion only of charge as held that the contract was capable of being aided by parol, and of such portion as held evidence competent or1 sufficient to be submitted to jury, on question to identify land.
Verdict for plaintiff. Motion for new trial by defendants for error on part of Court in holding said contract capable of being aided by parol.
*632. In' bolding evidence offered competent or sufficient to be submitted to jury on question of identifying land under contract.
3. In failing to nonsuit plaintiff.
Overruled. Judgment on verdict for plaintiff. Appeal taken. Notice waived, and appeal bond fixed at $25.
Above settled as case on appeal by Judge, counsel having disagreed and waived right to be present.
W. A. HoKE,
Judge Presiding.
This finding of the jury in obedience to the charge settles the facts on which the judgment was entered.
In Farmer v. Batts, 83 N. C., 387, this Oourt reviewed a list of cases, contrasting those held sufficient and those held insufficient to receive aid by parol proofs. There the writing was “one tract containing 193 acres, it being the interest in two shares, adjoining the lands of J. B. E. O., and others: Held, not too indefinite to admit parol evidence to indentify the land.” In Perry v. Scott, 109 N. C., 374, the language “On the south side of Trent River, adjoining the lands of Oolgrove, McDaniel and others, containing 360 acres,” was not too vague and indefinite to receive aid by parol evidence.
According to these cases, we think the written evidence in the present case was properly aided by the parol evidence and properly admitted to be considered by the jury, and we see no error in the judgment.
Affirmed.