Bissette v. Strickland, 191 N.C. 260 (1926)

Feb. 24, 1926 · Supreme Court of North Carolina

191 N.C. 260

JOSEPH BISSETTE v. J. L. STRICKLAND.

(Filed 24 February, 1926.)

t. Deeds and Conveyances — Mortgages—Descriptions—Boundaries—Parol Evidence.

A description in a mortgage to a life estate in lands as being in a certain county and township, containing twenty acres more or less, a part of a certain estate, and giving the names of two parties whose lands join it: Held, sufficient to admit parol evidence to fit the locus m quo to the description in the instrument, and is not void for vagueness of description. C. S., 992. /

2. Same — Evidence of Identification — Acreage.

Held, evidence in this case tending to show that the mortgagor of the lands owned only one tract of land, that it identified the locus in quo by two adjoining owners, is sufficient, though the number of acres actually conveyed slightly exceeded the number given in the conveyance.

S. Evidence — Questions for Jury.

The weight of the evidence relative to the issues, When more than one reasonable inference can be made therefrom, is for the jury, though it may not be altogether positive or may be conflicting.

4. Deeds and Conveyances — Mortgages—“Adjoining” Lands — Boundaries —Statutes.

Where the word “adjoining” is used in giving the owners of land, it has the significance of giving the boundaries to the locus in quo. C. S., 992.

Civil actioN tried before Crammer, J., at October Term, 1925, of Nash.

Tbe plaintiff purchased from E. J. Bissette certain tracts of land in Nash County fully described in deed from E. J. Bissette to Joseph Bissette, recorded in Deed Book 279, page 136, in the office of the register of deeds for Nash County. The date of the deed was 27 November, 1922. Prior to the making of said deed the grantor therein, E. J. Bissette, had executed to the defendant, J. L. Strickland, a mortgage on a part of the land theretofore conveyed by him to the plaintiff, Joseph Bissette. The mortgage was dated 26 November, 1919, and duly recorded in February, 1920. The plaintiff brought this action to remove a cloud from his title, alleging in the complaint that said mortgage constituted a cloud upon his title. The defendant, answering the complaint, alleged that said mortgage was a valid and subsisting lien. The plaintiff contended that the description of the land mentioned in said mortgage was so vague and indefinite as to render the mortgage void. The description of the land was as follows: “A certain piece or tract of land lying and being in Nasb County, state aforesaid, in Bailey Township, and described and defined as follows: All of our lifetime interest in twenty acres of land, more or less, and being a. part of the Mary A. J. Bissette estate, and joining the lands of F. R. Perry, John H. Griffin and others.”

The plaintiff introduced in evidence the deed from E. J. Bissette and wife to him, above referred to, and also the mortgage above referred to from E. J. Bissette and wife to the defendant, J. L. Strickland. The defendant offered E. R. Perry, one of the adjoining land owners mentioned in said mortgage, who testified that he knew the boundaries of the Mary A. J. Bissettee land, and that he also knew the particular piece of land containing twenty acres, more or less, described in the mortgage;'that it joined his land and also joined the John PL Griffin land, and that E. J. Bissette, the grantor in said mortgage, lived on this particular piece of land for several years, and that so far as he knew E. J. Bissette never owned any other land in the county.

Eanchen Lyles, another adjoining land owner, testified that he knew the land mentioned in the mortgage, and that the tract of land in controversy adjoined his land on the east, the land of Mrs. Martha Bis-sette on the west, the land of Mr. Perry on the north, and the Griffin land on the south, and that E. J. Bissette lived on this particular piece of land, and that it was separate from the. other tracts of land; that he knew of no other piece of land containing twenty acres, more or less, which joined the land of Hinchen Lyles on the east, Martha Bissette on the west, E. R. Perry on the north, and John H. Griffin on the south except the E. J. Bissette land, “and that there is no other tract of land that fills the bill."

E. J. Bissette, the maker of the mortgage, testified that he had been living on the'land twenty or twenty-five years., and this particular tract of land joined the land of F. R. Perry on the east and Hinchen Lyles on the south, and that he never owned any other piece of land except the land described in the mortgage.

There was testimony to the effect that Mary A. J. Bissette owned several tracts of land and that the tract in controversy contained twenty-five, thirty or thirty-one acres.

The plaintiff objected to all testimony of witnesses attempting to identify the land on the ground that the description in the mortgage was so vague and indefinite that the mortgage was void, and, therefore, parol evidence could not be admitted to aid the description. The jury found that the mortgage was a valid and subsisting lien on the property, and from the judgment, in accordance with the verdict, the plaintiff appealed.

Austin & Davenport for plaintiff.

Finch & Vaughan and Manning & Manning for defendant.

Brogden, J.

Tbe question arising from tbe record is whether tbe description of tbe property in tbe mortgage deed in controversy can be aided by parol testimony or whether tbe mortgage is void by reason of vague and indefinite identification of tbe property conveyed. Tbe function of tbe description in conveyances is to identify tbe land covered by tbe conveyance. C. S., 992, is as follows: “Vagueness of description not to invalidate. No deed or other writing purporting to convey land or an interest in land shall be declared void for vagueness in tbe description of tbe thing intended to be granted by reason of tbe use of tbe word “adjoining” instead of tbe words “bounded by,” or. for tbe reason that tbe boundaries given do. not go entirely around tbe land described: Provided, it can be made to appear to tbe satisfaction of tbe jury that tbe grantor owned at tbe time of tbe execution of such deed or paper-writing no other land which at all corresponde'd to tbe description contained in such deed or paper-writing.”

This statute applies only where there is a description which can be aided by parol, but not when there is no description. Harris v. Woodard, 130 N. C., 580.

It cannot be said that tbe mortgage contains no description of tbe land conveyed, because reference is made to adjoining owners and tbe land is further identified as being a part of tbe Mary A. I. Bissette estate. While tbe description is not complete, and perhaps may stand upon tbe border line of legal sufficiency, still it is within tbe principle announced in Farmer v. Batts, 83 N. C., 387, which principle has been firmly established, as settled law, by an increasing line of decisions reaffirming tbe soundness of that decision. Johnson v. Mfg. Co., 165 N. C., 105; Patton v. Sluder, 167 N. C., 500; Norton v. Smith, 179 N. C., 553; Green v. Harshaw, 187 N. C., 213; Freeman v. Ramsey, 189 N. C., 790.

In obedience to tbe legal principles of construction deducted from tbe pertinent decisions of this Court we bold that tbe description in tbe mortgage is sufficient to permit tbe admission of parol evidence to identify tbe land or to fit it to tbe land intended to be conveyed. Therefore, tbe exceptions taken to parol evidence of identity, admitted by tbe trial judge are untenable. While tbe evidence was not altogether positive and unequivocal, and even to some extent conflicting, its weight and credibility was for tbe jury.

Tbe fact that tbe acreage in tbe mortgage was referred to as twenty acres, more or less, and that there was evidence that tbe tract contained twenty-five, thirty or thirty-one acres, does not affect the principle. Patton v. Sluder, 167 N. C., 500.

We have given careful consideration to all the exceptions presented in the record, and for the reasons given, we are constrained to hold that the evidence of identification was properly admitted and the case properly tried.

Affirmed.