Bailey v. Hayman, 218 N.C. 175 (1940)

Sept. 18, 1940 · Supreme Court of North Carolina

218 N.C. 175

W. S. BAILEY et al. v. J. D. HAYMAN.

(Filed 18 September, 1940.)

1. Boundaries §§ 2, 3 — Specific description held not too indefinite to permit parol evidence in aid thereof, and holding as matter of law that description in prior deed to which it referred controlled is error.

Defendant claims under a commissioner’s deed describing the land as being bounded by the lands of named parties “and on the east by a tract of land known as the Richardson tract . . . containing seventy acres, more or less, and being the same land conveyed” to defendant’s predecessor in title, giving the book and page on which the prior deed is recorded. Plaintiffs claim the “Richardson tract.” It was admitted that the description in the prior deed embraced the entire Zooms in quo, including the “Richardson tract.” Held: The description in the deed to the plaintiff is not so indefinite as to preclude parol evidence in aid of the description, and the holding of the court as a matter of law that the reference to the prior deed was equivalent to incorporating its calls as a second description, and that therefore defendant owns the entire tract, is held for error, it being for the jury to say upon conflicting evidence whether plaintiffs have located the “Richardson tract” according to theif contentions.

2. Partition § 5b—

In partition, upon a plea of sole seizin by respondent, petitioners have the burden of proving their title as alleged as tenants in common with respondent.

3. Partition § 5d — Directed verdict for defendant pleading sole seizin held error upon facts of this case.

Respondent claimed sole seizin under a deed to him, and it was admitted that respondent is the sole owner of the land conveyed by that deed, but petitioners denied that the description of the land in that deed embraced the Zooms in quo and introduced evidence in support of their contention. Held: The specific description in the deed not being too indefinite to admit parol evidence in aid thereof, the court’s holding that the description in the deed to defendant was controlled by the description in a prior deed to which it referred and which embraced the locus in quo, and thereupon directing a verdict for defendant, is error.

Appeal by plaintiffs from Burney, J., at May Term, 1940, of Daee.

Petition for partition. Plea of sole seizin by respondent. Order of reference. Beport of referee in favor of plaintiffs. Exceptions to report by defendant and demand for jury trial. Directed verdict for defendant.

Plaintiffs appeal, assigning error.

Martin Kellogg, Jr., B. B. Bridgers, and Worth & Horner for plaint-tiffs, appellants.

J. H. Leroy and McMuTlan & McMullan for defendant, appellee.

Stacy, C. J.

On tbe bearing, tbe case was made to turn on tbe proper construction of tbe following description in a deed from Tbos. J. Mark-barn, Commissioner, to Hattie M. Dougb:

“Lying and being in Nags Head Township, Dare County,'and bounded as follows: Situated on tbe north end of Roanoke Island and known as tbe Abby Dougb tract and bounded on tbe north by tbe land of tbe heirs of Tbos. A. Dougb, deceased, on tbe east by a tract of land known as tbe Richardson tract; on tbe south by tbe lands of Hattie M. Dougb, and on tbe west by tbe lands of tbe heirs of Spencer Etheridge, deceased, containing seventy (70) acres, more or less, and being tbe same land conveyed to Abby Dougb and husband, "Warren A. Dougb, by William S. Etheridge, by deed duly recorded in Book No. 10, page 196, office of tbe register of deeds of Currituck County, and being tbe same place where Hattie M. Dougb now resides.”

Tbe question in difference arises out of tbe attempted determination and location of tbe eastern boundary of tbe land covered by tbe above description.

Tbe plaintiffs contend that tbe Richardson tract which they here seek to partition is timber land lying immediately east of tbe Abby Dougb tract, which latter tract consists of cultivated land, with dwelling bouse thereon, and is known as tbe home place. They admit that tbe foregoing deed covers tbe Abby Dougb tract, but they deny that it also conveys tbe Richardson tract.

Tbe defendant, on tbe other band, insists that tbe entire tract, including tbe woodland, or tbe part here sought to be partitioned, is known as tbe Abby Dougb tract, and that tbe “Richardson tract,” mentioned as tbe eastern boundary, while ostensibly a locative call, is, in reality, a fugitive or indeterminable call in tbe description. 8 Am. Jur., 747; 16 Am. Jur., 589. Each side offered evidence tending to support its position.

Tbe plaintiffs concede that both tracts, as they speak of them, are within tbe outer bounds of tbe William S. Etheridge deed to which reference is made in tbe Markham deed, and that tbe defendant is tbe sole owner of whatever is conveyed by tbe Markham deed.

Upon this concession, tbe trial court held as a matter of legal construction, ipso jure, that tbe reference to tbe William S. Etheridge deed was equivalent to incorporating its calls as a second description in tbe Markham deed, and that, therefore, tbe Richardson tract as tbe plaintiffs speak of it, is covered by tbe description in tbe Markham deed. Accordingly, tbe jury was instructed to find for tbe defendant. Tbe correctness of this ruling is challenged by tbe appeal.

Tbe evidence offered on behalf of tbe plaintiffs tends to bring tbe case within tbe principles announced in Von Serf v. Richardson, 192 N. C., 595, 135 S. E., 533; Ferguson v. Fibre Co., 182 N. C., 731, 110 S. E., 220; Williams v. Bailey, 178 N. C., 630, 101 S. E., 105; Potter v. Bonner, 174 N. C., 20, 93 S. E., 370; and Cox v. McGowan, 116 N. C., 131, 21 S. E., 108. That offered by tbe defendant tends to bring it within the doctrine of Quelch v. Futch, 172 N. C., 316, 90 S. E., 259.

It is for the jury to say whether the plaintiffs have located the Bich-ardson tract according to their contention. Edwards v. Bowden, 99 N. C., 80, 5 S. E., 283, 6 A. S. R., 487.

In partition, upon a plea of sole seizin, non tenent insimul, the burden is on the plaintiff to show title as alleged, i.e., the tenancy in common. Huneycutt v. Brooks, 116 N. C., 788, 21 S. E., 558. There was error in directing a verdict for the defendant.

New trial.