Den ex dem. Ritter v. Barrett, 20 N.C. 133, 3 Dev. & Bat. 133 (1838)

Dec. 1838 · Supreme Court of North Carolina

20 N.C. 133, 3 Dev. & Bat. 133

DEN ex DEM. of THOMAS RITTER, et uxor v. WILLIAM BARRETT.

Dec. 1838.

Any inaccuracy or deficiency in the description contained in a deed may be corrected or supplied by a reference to another deed, if the deed referred to contains a more particular and certain description of the land intended to be conveyed. Thus, if to the description by courses and distances in a deed be added the further description “containing three hundred acres sold by Jacob McLindon to Isaac Sowell,” the courses and distances shall be controlled, if necessary, by the description in the deed given for the land by, McLindon to Lowell. t

The case of Campbell vs. McArthur, 2 Hawks 33, approved.

This was an action of ejectment, brought to recover the strip of land represented on the annexed diagram by. the lines D P, P S, S C, and C D.

The lessors of the plaintiff, on the trial at Moore, on the last circuit before his Honor Judge Nash, exhibited the following chain of title, to wit — a grant to Thomas Knight in the year 1760, a deed of bargain and sale for the same land fr°m Knight to Jacob McLindon in 1762, and a deed from McLindon to Isaac Sowell for the same in 1772. They then proved that Isaac Sowell died intestate previous to 1784, leaving a widow, Mary, and a son, John, who was his oldest son. They then produced in evidence a deed bearing date in 1786 from John and Mary Sowell, to Margaret Sowell, the feme lessor of the plaintiff, and wife of the other lessor. The description of the land in the grant to Knight was as follows — “ Lying on both sides of McLindon’s creek, beginning" at. a maple on the south side of McLindon’s creek, and runs S. 55°, W. 240 poles up to a pine, in the lower line of Jacob McLindon’s land on the said creek, thence N. 35', W. 200 poles, crossing the said creek with said Jacob’s line, to a pine, thence N. 55°, E. 240 poles down to a red oak, thence S. 35', E. 200 poles, crossing the creek to the mouth of a branch to the first station, containing three hundred acres.” This description of the land was the same in all the mesne conveyances, except in the one from John and Mary Sowell to Margaret Sowell, the difference in which, however, need not be stated, as it is unnecessary to the understanding of the question upon which the case was decided. For the defendant, it was insisted that the title of the land in dispute was not in the lessors of the plaintiff but in one John Sowell, to whom the said lessors had conveyed it by a deed bearing date the 23d of March, 1791, in which the land was described as follows — “ a certain piece or parcel of land in the county of Moore, situate, lying and being as follows, on both sides of McLindon’s creek, beginning at a maple by a branch running thence S. 55°, W. 240 poles, thence N. 35¿, W. 200 poles, thence N. 55°, E. 240 poles, thence S. 35°, E. 200 poles to the beginning, containing 300 acres, sold by J acob McLindon to Isaac Sowell.” It was agreed that the grant to Knight began at the letter M, as represented off the diagram, and that the first line terminated at the letter P, and that that line was twelve poles longer than the distance called for in the grant, which gave out at the letter D. It was admitted by the defendant that, he was in possession of the disputed land.

The defendant contended that the deed from the lessors of the plaintiff to John Sowell conveyed all the land covered by the grant to Knight, and moved the court to instruct the jury that they were at liberty to disregard the distance called for in the first line-,of that deed, and that the defendant was not obliged to stop' at the letter D, where the distance gave out, because the words “ sold by Jacob McLindon to Isaac Sowell” contained in that deed controlled the distance therein mentioned. His Honor declined giving those instructions, but charged the jury “ that those words did not control the course and distance called for in the deed ; and that as there was no evidence to show that the first line in that deed had actually been run by the parties to McLindon’s line, it must stop where the distance gave out, as it did not call for McLindon’s line or the pine.” The lessors of the plaintiff had a verdict and judgment and the defendant appealed.

Winston for the defendant.

Badger and Mendenhall for the lessors of the plaintiff.

Gaston, Judge.

We are of opinion that there was error in refusing to instruct the jury, as prayed by the defendant’s counsel, that they were at liberty to disregard the distance called for in the first line of the deed of the lessors of the plaintiff to John Sowell, and to extend that line to the pine, the terminus called for in the deed of Jacob McLindon to Isaac Sowell. In the case of Campbell v. McArthur. 2 Hawks 33, it was recognised as a settled principle that a mistake in the course or distance of a deed shall not be permitted to disappoint the intent of the parties, if that intent appears, 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. This principle.we think applicable to the present case. In the deduction of title to the lessors of the plaintiff for the land in dispute, the plaintiff' had exhibited a deed of bargain and sale from Jacob McLindon to Isaac Sowell, dated 7th January, 1772, in which the tract conveyed is thus described: 300 acres of land lying on a branch of McLindon’s creek called Black creek, beginning at a maple on the south side of McLindon’s creek, and runs south 55°, west 240 poles up to a pine in the lower line of Jacob McLindon’s land on the said creek, thence north 35°, west 200 poles crossing the 'said'creek with the said Jacob’s line to a pine, thence north 55°, east 240 poles, down to a red oak, thence south 35°, east 200 poles, crossing the said creek at the mouth of a branch to the first station.” ' The defendant then offered in evidence a deed from the lessors themselves to John Sowell, conveying, as the defendant al.' leged, this very tract to the said John. This deed, dated 23d March, 1791, describes the' land as “lying and being on both sides of McLindon’s creek, beginning at a maple by a branch running thence south 55°, west 240 poles, thence north 35°, west 200 poles., thence north 55°, east 240 poles, thence south 35°, east 200 poles, to the beginning, containing three hundred acres sold by Jacob McLindon to Isaac Sow-ell.” So far as- the description goes in this deed it corresponds with that in the former. There is the same beginning — the same courses and distances — and the same quantity of acres in both — and the only difference between the two descriptions is, that the former is more circumstantial in pointing out where the termini are to be found- of the lines described by course and distance.

T,he lessors of the plaintiff exhibited no evidence of any other sale from Jacob McLindon to Isaac Sowell, than the sale evidenced by the deed of McLindon. It was therefore to this sale as authenticated by this deed that the reference was made in their deed, and the very purpose of the reference would seem to be to ascertain with more particularity what it was apprehended might not have been otherwise sufficiently. described. They therefore declare their intent to convey unto John Sowell the same land which Jacob McLindon sold to Isaac Sowell. If, therefore, in the description of this land thus conveyed, there be found any inaccuracy or deficiency, that inaccuracy is corrected and that deficiency supplied the moment we ascertain the true boundaries of Isaac Sowell’s purchase, and these appear upon the face of McLindon’s deed.

The judgment is reversed and the cause must be sent back for another trial.

Per Curiam. Judgment reversed.