Den on Dem. of Everitt v. Thomas, 23 N.C. 252, 1 Ired. 252 (1840)

Dec. 1840 · Supreme Court of North Carolina

23 N.C. 252, 1 Ired. 252

DEN ON DEM OF JOHN EVERITT vs. GEORGE THOMAS.

By a proper reference of one deed to another, the description in the latter may be considered as incorporated into the former, and both be read as one instrument, for the purpose of identifying the thing intended to be conveyed.

But there must be no inconsistence between the calls of the latter deeds and the former deeds or grants; as, for instance, where the former deed or grant calls for a line of another patent and the latter deed omits that call,hut goes fora particular course and distance, and only professes t.o convey a part of the tract embraced by the grant or former conveyance. In such a case the course and distance called fors being the specific description in the deed, must prevail.

This was an action of Ejectment, tried at Fall Term, 1840, of Richmond Superior Court of Law, before his honor-judge Settle, in which there was a nonsuit, and the plaintiff appealed to the Supreme Court.

The lessor of the plaintiff deduced title as follows, to wit: 1st. A grant in favor of George Webb, bearing date the 18th day of April, 1771, describing the land as follows, to wit: between the-south prong of Cartledge’s creek and Baggett’s branch, No. E. of Pedee River, beginning at a blackjack by Crawford’s corner a dead hickory, and runs thence No. 60 E. 19 chains 79 links near three black-jacks, then No. 30 W. 44 chains 73 links to a stake among 4 pines, then So. 60 W’t 10 chains by a fine in Jackson’s line, then with it So. 35 West 27 chains to a stake among three fines, then So. 60 West 18 chains and 23 links, then So. 30 East 33 chains and 30 link's, then No. 60 East 33 chains 30 links to the beginning.

2nd. A deed from George Webb to Lawrence Everitt. dated Jan. 25th, 1780, describing the land in toiidem verbis, as in .the patent; and also as 200 acres of land granted the said George Webb by patent, dated 17th April, 1771.

3rd. The will of Lawrence Everitt, dated May 31st, 1800, and admitted to probate September, 1803, giving the land to his four children, William, Lawrence, Elizabeth and Han-nab; Elizabeth had since intermarried with Jesse Williams, and was still alive; Mrs. Williams, the widow of Lawrence, was dead.

4th. A deed from William Everitt, Lawrence Everitt and Jesse Williams, to William Everitt, dated in 1810, the descriptive parts of which are “ a part of a tract of land, the said tract containing 200 acres, was granted unto George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, dec’d, to William and Lawrence Everitt and Jesse Williams, his sons, three of the legatees. “Beginning at a stake and runs No. 60 East 19, 79 to three black-jacks, thence No. 30 West 44, 73 to a stake, thence South 60 W. 10 poles, thence South 37 West 27 chains to three pines, then South 60 West 18, 23, thence South 30 East 33 chains and 30 links, thence North 60 East 33 chains 30 links to the beginning, the same containing two hundred acres, more or less; the said William and Lawrence Everitt and Jesse Williams, their heirs and assigns forever, do bargain, sell and convey unto William Everitt one hundred and fifty acres out of the above two hundred acres, three children’s part at the death of Mary IVilliams, formerly the wife of Lawrence Everitt, the mother of William and Lawrence Everitt and Jesse Williams.”

5th. A deed from William Everitt to John Everitt, the lessor of the plaintiff, dated in 1824, which described the land as follows: “ a piece or parcel of land containing one hundred and fifty acres, being three fourths of a tract of land of two hundred acres, which Lawrence Everitt, sen., owned at his death; and the part hereby conveyed being the parts formerly belonging to William Everitt, sen., Lawrence Everitt, Jun., and Jesse Williams, in right of his wife in the aforesaid tract; for the boundaries of the said one hundred and fifty acres of land, reference is to be had to the deed of conveyance from the aforesaid legatees, except that fifty acres, of said land is encumbered with the life estate of Mrs. Molly Williams, formerly the widow of the said Lawrence Everitt, sen.”

6th. A deed from Hannah Everitt to the lessor of the plaintiff, dated in 18,27, and describing the land conveyed as follows: “a part of a tract of land, the said land contain-*n£ tw0 hundred acres, granted unto George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, dec’d, and then the said tract beginning at a stake and runs No. 60 East 19, 79 to three black-jacks, then North 30 West 34, 73 to a stake, thence So. 60 West 18, 23, thence So. 30 East 33, 50; then No. 60 East 33, 20 to the beginning, the same containing two hundred acres, more or less, and my part being the fourth of the above described tract of land, willed to me by my father, Lawrence Everitt.”

Upon the trial in the Superior Court, two questions arose. The first question was, whether the mesne conveyances passed all the interest of the bargainors under the Webb patent, or only so much thereof as was covered by the courses and distances set forth in said deeds. This question his Honor reserved, and directed the parties to go on with the investigation of the other question, with the understanding that the verdict should be set aside and judgment rendered for the defendant, if such verdict should be in favor of the plaintiff, and the court should be of opinion that the mesne conveyances passed only so much of the interest of the bargainors as was contained within the courses and distances set forth.

The other question was, whether the third line of the Webb patent stopped at the end of its course and distance, or extended to Jackson-s line.- And in the latter case, it was proved that the third line of the Webb patent would be twice as long as in the former case. Upon the charge of the Judge on this question, the jury gave a verdict fot the plaintiff.

On the reserved question the Judge was of opinion that the special description by course and distance in the mesne conveyance, controlled the more general description by reference to other conveyances, and that consequently they did not cover the land in dispute; and he set aside the verdict, and entered a judgment for the defendant, from which the plaintiff appealed.

A plat of survey was annexed to the case, but it is deemed unnecessary to insert it, as the only question determined by the Supreme Court was, whether the mesne conveyances to the lessor of the plaintiff covered the same land that was covered by the grant to Webb.

Strange for the plaintiff.

No counsel for the defendant.

Ruffin, Chief Justice.

If it be admitted that the grant to Webb covers the land in dispute, yet if the deeds to the lessor of the plaintiff do not also cover some part, he has no title, and the verdict ought to have been for the defendant. Upon this last point we entertain the same opinion his Hon- or gave; and, as that is decisive against the action, it is unnecessary to consider the other point.

It is clear that according to the description by metes and bounds, contained in the deeds to the lessor of the plaintiff, neither of them embraces any portion of the land in controversy. In the grant the third line runs South 60 West ten chains by a pine in Jackson’s line; thence with it South 35” West &c. It is by the force of these calls, if at all, that the pat ent covers the Land in possession of the defendant. Now the deed from the sons, if it be admitted to run with the patent to the second comer, runs “ thence South 60 West tenpoles” instead often chains, and does not call for Jackson’s line, nor for any object to control course and distance. It must therefore stop at the end of the distance, and then run so as to leave out the whole land in dispute. The deed from Hannah Everett is still more defective. In the grant the second line runs North 30' West forty-four chains and seventy-three links to a stake among four pines. In this deed it runs the same course thirty-four chains and seventy-three links, and the pines are not called for but a stake only. Stopping ten chains short of what is called for in the patent, (supposing this last to include the land in dispute,) it is obvious that the disputed land cannot be included, even if the subsequent calls in the deed corresponded with those in the patent. The deed omits the two next lines altogether, and describes the tract as having, instead of six, only four, lines.

But it is urged that these defects are supplied by the reference to the grant to Webb and by other general terms, which, it is said, denote an intention to convey all the land the bargainors derived from Lawrence Everitt, namely, the whole tract granted to Webb. We do not doubt, that, by a ® ;n proper reference of one deed to another, the description of the ]atter may be considered as incorporated into the former, and both be read as one instrument for the purpose of identifying the thing intended to be conveyed. That was done in Ritter vs. Barnett, 4 Dev. & Bat. 133, and in Campbell vs. McArthur, 2 Hawks 33. But in those cases, the calls in the several deeds were not inconsistent with each other, and there was a manifest intention to conyey the lohole or a certa^1 Vart the particular tract described in the grant or deed referred to. Therefore such a reference was allowed to help an imperfect description, so as to make it conform to the principal intention. But, in this case, the calls of the patent and the deeds are absolutely inconsistent, and cannot be reconciled. Moreover each deed sets out with the declaration that the bargainors meant to convey “ a part of a tract of land,” and not the whole tract that was granted to Webb; and then it proceeds to give a specific description by courses and distances, which do in fact include a part and but a part of the land granted to Webb.' It maybe possible and probable that the part meant was such part of the whole tract, as the bargainors were respectively entitled to. But that is not said, and can only be conjectured; and, without a plainer guide than mere conjecture, we are not at liberty to depart from the terms of special description contained in the deeds.

The cases vs. 4Dev. & and CampMcArthur, 33 ^ted3 and approve '

Per, Curiam. Judgment of the Superior Court affirmed.