Moses v. Peak, 48 N.C. 520, 3 Jones 520 (1856)

Aug. 1856 · Supreme Court of North Carolina

48 N.C. 520, 3 Jones 520

DAVID MOSES vs. RACHEL PEAK et al.

A description in a deed “ of a piece of the Abraham Moore tract of land” “ that belongs to the heirs of Z. P., lying and being- in the county of M, on the Elijah crock and its waters in district eleven,” “ as wo inherited it at the death of Z. P. as heirs of him,” is sufficient to authorise the introduction of parol proof to identify the land that answers that description.

This was an action of covenant, tried before Manly, Judge, at the Eall Term, 1855, of Macon Superior Court.

The plaintiff declared on the covenant of quiet enjoyment contained in the following deed: “ This indenture, made this 81st day of October, one thousand eight hundred and fifty, between Rachel Peak, Isaac Peak and James M. Peak, of the State of North Carolina, Macon county, and David Moses of the State and county aforesaid, of the other part, witnesseth, that for and in consideration of the sum of one hundred and. sixty-five dollars to them in hand paid, the receipt whereof is hereby acknowledged, hath bagained, sold and conveyed unto said David Moses, his heirs and assigns forever, all our right, title, interest and claim of one-eighth part to each of us that we have in and to certain tracts of land that belongs to the heirs of Zachariah Peak, deceased, lying and being in the county of Macon and State of North Carolina, lying on the Elijah creek and its waters in district eleven, the said land containing six tracts, to have and to hold the said bargained premises, with all woods, waters, minerals, hereditaments and appurtenances to the said land belonging so far as one-eighth part to each of us goes, to the said Moses, his heirs and assigns in fee simple ; and we, the said Eachel Peak, Isaac Peak and J. M. Peak, doth covenant and agree to and with the said David Moses to warrant and ever defend, and we the said Eachel Peak, Isaac Peak and J. M. Peak, do bind ourselves, our heirs, executors, administrators and assigns to warrant and ever defend the right, title and interest that we had in the above mentioned six tracts, and a piece of land of the Abrah'amfMoore tract of land clear and free from ourselves and all manner of persons whatsoever claiming the same, unto the said David Moses, his heirs and assigns forever ; and we, the above mentioned heirs of Zachariah Peak, deceased, do relinquish all our rights and title to the above parcel of land, as we inherited it at the death of the said Zachariah Peak, as heirs of him at his death, in witness,” &c.

The plaintiff introduced evidence, that at the time of the execution of the deed, the defendants and other lieirs-at-law of Zachariah Peak, were in possession of the several tracts of land described as six tracts, also of live or six acres of the tract known as the Abraham Moore tract; that Moses, the plaintiff, was put in possession of all these several parcels in pursuance of his deed; that he, Moses, was afterwards sued and ejected by paramount title from the five or six acres, known as a part of the Abraham Moore tract.

.The defendants contended below, that the deed was too indefinite and vague in its terms, to convey the part of the Abraham Moore tract from which the plaintiff was ejected.

And, at any rate, the warranty did not embrace it, but only such lands as the bargainors had a good title to.

The Court was of opinion that the deed was sufficient for the conveyance of that part of the Abraham Moore tract which the bargainors claimed and possessed, and that there was in the deed a covenant of quiet enjoyment of the part known as the Abraham Moore tract. Defendants excepted. Verdict for plaintiff. Judgment and appeal.

J. W. Woodfin, for plaintiff.

Baxter and N. W.' Woodfin, for defendants.

Pearson, J.

Tlie description, “ a piece'of the Abraham Moore tract of land,” standing by itself, would certainly be too vague and uncertain; but the deed contains this further description, “ that belongs to the heirs of Zachariah Peak, deceased, lying and being in the County of Macon, State of North Carolina, on the Elijah Creek, and its waters in district eleven,” and in another place, “ as we inherited it at the death of Zachariah Peak, as heirs of him.” Putting these together it makes this description: That piece of the Abraham Moore tract of land in Macon County, on the Elijah Creek, and its waters in district eleven, which belonged to Zachariah Peak and descended to us as his heirs. This makes the description sufficiently certain. Parol evidence may then be resorted to, for the purpose of identifying the particular piece of land that answers this description; or, as is said in President of the Peaf and Dumb Institute v. Norwood, Busb. Eq. 65, of “ fitting the description to the thing.” The doctrine is so fully discussed in that case, as to save us the trouble of again elaborating it. Accordingly we have this evidence: a piece of five or six acres of the Abraham Moore tract, which is identified, descended to the heirs of Zachariah Peak, who were the defendants and others. The heirs took possession, and after the execution of the deed, put the plaintiff in possession of this five or six acres, as the piece of the Abraham Moore tract, that was described in the deed. This removes all ambiguity whatever.

Upon the second point made,, we also concur with his Hon- or. The idea that the warranty does not embrace any land except such as the bargainors had good title to, makes the insertion of it ridiculous and absurd. The proper construction of the words “ warrant and defend the right, title and interest that we had in the above mentioned land,” • &c., “ clear and free from the claim of all persons whatever, &c., as we inherited it,” &c., is that the warranty as well as the conveyance of the defendants, who were only a portion of the heirs, was to extend only to their eighth part, and was not to- extend to the whole tract. Such would have been the construction without those words; but the deed is inartificially drawn, and they were inserted out of abundance of caution.

Per Curiam.

Judgment affirmed.