We are of opinion, that a writ of possession ought to issue, and that the description is sufficiently certain for that purpose.
Byrd v. Clark, 5 N.C. 622, 2 Car. L. Rep. 622 (1816)
July 1816
·
Supreme Court of North Carolina
5 N.C. 622, 2 Car. L. Rep. 622
Byrd v. Clark.
An action of ejectment in which the plaintiff obtained at verdict; and the question reserved was, whether the premises were sufficiently described in the declaration to authorise the issuing of a writ of possession. The description is as follows:—"One tract of land, containing 150 acres, lying and being in the county of Martin, and State aforesaid, in the low grounds of Roanoke River, on the south side; it being part of 350 acres, according to contents of patent granted to John M‘Caskey the 7th November 1730; beginning at a sycamore tree supposed to be Colonel Cullen Pollock’s line, and so extending out and in, according to courses of patent aforementioned, to conclude and make out the above said 150 acres, with the appurtenances.”
Browne, for the plaintiff:
In ejectments, there is no great certainty required in the description of the premises; for the sheriff’s assistance is required only for the purpose of preserving the peace.—2 Cromp. Prac. 212, He delivers possession on the showing of the plaintiff, who is at his peril, to take possession of no more than he is entitled to. And if he does take possession of more, the Court will set the matter right in a summary way.—1 Burr. 623. 5 Burr. 2672.
*623The precedent in 2 Cromp Prac. 162, is of “ four messuages; four barns, with the appurtenances, in the parish of St. Mary, Islington.” In which parish there are probably more than 400 messuages, and as many Barns; any four of which would answer the description.
In Lilly's, Entries 192, it is of “ five messuages, twenty cottages, 400 acres of land, 200 acres of meadow, 400 acres of pasture, with the appurtenances, in Welhen Slawston, Harborowe and Bowden Magna.” And the other precedents in the same book, are not more accurate in their description.
The description in the caae before the Court, is of “one tract of land, containing 150 acres, lying and being in the County of Martin, and State aforesaid, in the low grounds of Roanoke, on the south side, it being part of 350 acres granted to John M‘Caskey, the 7th of November 1730, beginning at a sycamore tree, supposed to be Colonel Cullen Pollock’s line. This, without laying any stress on the balance of the description, is more accurate and precise than that of any of the precedents in the books.
There never occurs a case of disputed boundary, where the Court and jury can decide solely on the description in the grant or deed. They are obliged to have recourse to the testimony of witnesses. As the sheriff cannot do so, he has recourse to the information of the plaintiff, who gives it to him at his peril.