Jones v. Norfleet, 52 N.C. 473, 7 Jones 473 (1860)

June 1860 · Supreme Court of North Carolina

52 N.C. 473, 7 Jones 473

Doe on the demise of MARY ANN JONES v. WILLIAM NORFLEET.

Where a testator, owning a parcel of land embracing two town lots, on which he had settled a woman, having built her a dwelling on one lot and an out house on the other, and permitted 'her to enclose a-garden, partly on each lot, and to use the whole parcel enclosed within one fence, devised to her the lot of ground and house thereon erected in the said town where she •now lives,” it was Held, that the whole parcel, embracing both lots, passed by the -devise.

This was .an action of ejectment, tried before Saunders, J., at the last Spring Term of Edgecombe Superior Court.

CASE AGREED.

The lessor of the plaintiff, a colored woman, elaims title under the will of Henry S. Lloyd, made in. 1860, which contains the following clause : “ I give and devise to Mary Ann Jones, a free colored woman, of the said- town of Tarborongh, and to her heirs and assigns forever, the lot of ground and the house thereon erected in the said town,' on which she now lives.”

The defendant, William Norfleet, being authorised, as executor, to sell his testator’s real estate in the town of Tarborough, except such as was specifically devised, took possession of lot 118, insisting that lot only 107, passed to the lessor of the plaintiff. (See diagram.)

The two lots adjoin eacli other, and together constitute-one acre, and are enclosed under one fence, except nine or ten feet of lot 118 at the upper end, which was difficult of' enclosure on account of its steep descent. They are situated; in the suburbs of the town.

In the year 1856, before the lots were enclosed, the devisorerected on lot 118 an ice-house, at a cost of some 800 dollars,, for the purpose of storing ice for the use of a tavern in the same town, of which he owned "one- half,, which tavern he directs in his will to be sold.

The-said two lots were surrounded by aboard fence in 1857',, and in the same year the deviso-r built the dwelling-house on, lot 107 for the lessor, who immediately thereafter took possession, and has continued to reside in it ever since.

There is not, nor has there been, any designation of a dividing line between the two lots. In the spring of 1859, the lessor of the plaintiff enclosed a small portion of the ground for a garden. There is on lot 107, a smoke-house-, which was-built when the dwelling was erected by the de-visor, and afterwards he built on lot 118, for use of the lessor, a small privy. Beside the ice-house, on 1-ot 118, the- devisor built in 1858, a rude cabin for an, aged slave,, whom; he had in charge, to which is attached quite a small garden, which was used by this slave. The lessor had the use,, for the purpose of cultivation, of all the residue of both lots..

In the plan- of the town, the lots are fifty yard's square, by-actual measurement, and acco-rdingto such measurement, part of lessor’s garden and the- privy are situated on 118. The devisor acquired both, these-lots from- the same person, at the same- time. He resided near them, and frequently saw them, .but whether he knew where- the line between them would run, cannot be stated. There is no-mark or trace of the boundary of the- upper end of 118;.

It was. agreed, by counsel, that if bis Honor should be of opinion, that the-plaintiff was entitled to recover on the foregoing statement of facts, judgment should be rendered accordingly, otherwise judgment fos-the defendant.

His Honor pro forma gave judgment for the plaintiff, and 'the defendant appealed.

Dortch, for the plaintiff.

B. F. Moore, for the defendant.

Manly, J.

The case turns upon the proper construction of the bequest to the lessor, contained 'in the will of Henry S. Lloyd.

The facts are distinctly and clearly stated, and after duly considering them, in 'Connection with the language of the will, we are of opinion that the entire parcel of ground, embracing lots 107 and 118, passed under the devise, except such portions as had been appropriated by the devisor to the ice-house and to the cabin and garden of the old slave.

The term lot, used in the description of the ground de-vised, is not found in such connection, nor employed in such way as to lead to the conclusion, that the testator had in his mind, at the time, apian of the town, and intended to restrict the occupation then enjoyed by the woman, to the lot in the plan, on which her dwelling-house stood, but we suppose the term “ lot,” was used as synonomous with piece or parcel, and in such case, it would clearly embrace not only the spot on which the house or houses stood, but also, all the ground which was used as appurtenant to the dwelling. In the case of Stowe v. Davis, 10 Ire. Rep. 431, the phrase, “ the plantation on which I now live,” was held to embrace two tracts, bought at separate times and from different individuals, but which had been worked together by the testator as one plantation. And in the case of Bradshaw v. Ellis, 2 Dev. and Bat. Eq. 20, it was held that the expression, “ nay plantation,” carried two .parcels, not adjoining, which had been worked together.

It seems that one oftthe out-houses, belonging to the dwelling, was situated on lot 118. The garden, used by her, was partly on one lot and partly on the other. Both lots are in one general enclosure, and the possession and use by the womaB, extends over the whole, except that part actually occupied by the ice-house and by the cabin and small' garden of the old slave, as above- stated. These- facts, which it is proper for ns to consider, win fitting a thing to the description,’7 strengthen the conclusion, that the gift to the woman- is not confined to the fifty yards square, called a lot in the plan- of the town, but extends, at least, to-the lands enclosed and used in connection with the house-. A different construction would create the necessity of making a change- in the location- of the out-house, garden, fences, &c., which, if the testator had intended, he would hardly have failed to notice.

Our opinion, then, is, that there is-no errorin the judgment upon the case agreed.

Per Curiam,

Judgment affirmed'..