Bobbitt, J.
While nominally a cause of action to remove a cloud from plaintiffs’ title, this is essentially an action in ejectment. True, possession by plaintiffs is not a prerequisite to an action brought under G.S. 41-10.
Satterwhite v. Gallagher,
173 N.C. 525, 92 S.E. 369;
Vick v. Winslow,
209 N.C. 540, 183 S.E. 750. Nor is it necessary in such an action to allege or establish either trespass or unlawful possession by defendants. But where, as here, defendants are in actual possession, and plaintiffs seek to recover possession, the action in essence is in ejectment.
Hines v. Moye,
125 N.C. 8, 34 S.E. 103.
The parties stipulated that, upon the death of Claudia Watson on 3 March, 1938, the children of Millie Stancil and of Loumenda Richardson became the owners in fee simple of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less. Accepting this as established, the proper construction of the Atlas Richardson will (which is not set out in full in the record), need not be considered; nor do we need to consider the parol division of 1922.
The owners of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less, made a parol partition thereof in 1949. A parol partition is voidable, not void.
Collier v. Paper Corp.,
172 N.C. 74, 89 S.E. 1006;
Thomas v. Conyers,
198 N.C. 229, 151 S.E. 270. As of now,
the parties
to said parol partition of 1949, their heirs or assigns, could have it declared void and be restored to their original status as tenants in common.
Duckett v. Harrison,
235 N.C. 145, 69 S.E. 2d 176. They have not done so.
It makes no difference for present purposes whether plaintiffs be treated as owners of the 5 acres identified and staked out as the Claudia Mary Etha Baldwin land in said parol partition of 1949 or as owners of an undivided interest in the 19 acres
in the center
of the Atlas Richardson land. This may become material upon the accounting for rents and profits from May, 1954. In an action for trespass, a tenant in common may recover judgment only for his proportionate part of the damages; but in an action in ejectment, one tenant in common may recover the entire tract against a third party.
Winborne v. Lumber Co.,
130 N.C. 32, 40 S.E. 825;
Lance v. Cogdill,
238 N.C. 500, 78 S.E. 2d 319, and cases cited therein.
Both plaintiffs and defendants claim under Claudia Mary Etha Baldwin, plaintiffs claiming by inheritance and defendants claiming under deed pursuant to foreclosure of the deed of trust executed by Claudia Mary Etha Baldwin to A. M. Noble, Trustee. Thus, the vital question is whether the description in the deed of trust and in the trustee’s deed is void for uncertainty.
Defendants’ assignment of error, based on Judge Sharp’s refusal to treat Judge Bone’s order as having established the sufficiency of the description, is wholly without merit. Judge Bone made no such determination. He simply denied plaintiffs’ motion for judgment on the pleadings. Plaintiffs excepted, but did not appeal. They were well advised. It is well established that an appeal does not lie from a denial of a motion for judgment on the pleadings.
Garrett v. Rose,
236 N.C. 299, 72 S.E. 2d 843;
Howland v. Stitzer,
240 N.C. 689, 84 S.E. 2d 167, and cases cited therein. Furthermore, the motion for judgment on the pleadings related to the
original
pleadings. Plaintiffs’ allegation of ownership was denied. This raised an issue of fact, to be determined by jury trial or other approved procedure.
Wells v. Clayton,
236 N.C. 102, 72 S.E. 2d 16. Aside from all this, the controversy under the
amended
pleadings was an entirely different case, involving different land.
The principles applicable in determining the sufficiency of the description are well established.
Hodges v. Stewart,
218 N.C. 290, 10 S.E. 2d 723, and cases cited therein. “The description must identify the land,
or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty.”
Higgins, J.,
in
Deans v. Deans,
241 N.C. 1, 84 S.E. 2d 321. Parol evidence is admissible to fit the description to the land. G.S. 8-39. “Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence
aliunde
to make the description complete is to be sought.”
Winborne, J.,
in
Self Help Corp. v. Brinkley,
215 N.C. 615, 2 S.E. 2d 889.
Here the description calls for
a
tract of land in
Selma Township,
in the settlement called “Coonsboro”
about
three miles north of Selma, N. C., consisting of 10.65 acres, more or less. This fits equally well any tract of the indicated acreage in “Coonsboro” about three miles north of Selma. It refers to nothing from which the land can be identified with certainty. The additional sentence, “See Will Book 6, page 5, of the Atlas Richardson Will, and Item 7 of said Will, Office of Clerk of Superior Court, Johnston County,” affords no assistance. If it be conceded that the mere reference to the Atlas Richardson will, particularly Item 7 thereof, is a sufficient reference to admit testimony as to the contents of Item 7 of said Will, the stipulations disclose that the tract devised in Item 7 was “19 acres of my tract of land on the west end.” Clearly, this does not identify the tract of 5 acres in controversy, in possession of Claudia Mary Etha Baldwin when she executed the deed of trust to A. M. Noble, Trustee, which is a part of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less.
It is quite probable that Claudia Mary Etha Baldwin intended to convey to A. M. Noble, Trustee, whatever part or interest she owned in the original tract of 54 acres, more or less, albeit the explanation of the reference to a tract of 10.65 acres, more or less, does not appear. Even so, we are concerned only with the sufficiency of the description, not what we conceive Claudia Mary Etha Baldwin may have intended. Since the description does not point to any source from which it can be made certain, we agree with the ruling of Judge Sharp that the deed of trust and the trustee’s deed are void because of uncertainty in the description of the land conveyed thereby.
Apparently, the deed of trust to A. M. Noble, Trustee, secured the payment of an indebtedness due and owing by Claudia Mary Etha Baldwin. What amount, if any, defendants may be entitled to recover from plaintiffs on account of such indebtedness or otherwise is not before us for consideration. It is noted that plaintiffs, in their amended complaint, tendered to defendants the sum of $475.00, the amount of their bid at the foreclosure sale..
While the ruling that the description is insufficient and void is upheld, we are confronted here by the fact that the 5-acre tract in controversy
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Bobbitt, J.
While nominally a cause of action to remove a cloud from plaintiffs’ title, this is essentially an action in ejectment. True, possession by plaintiffs is not a prerequisite to an action brought under G.S. 41-10.
Satterwhite v. Gallagher,
173 N.C. 525, 92 S.E. 369;
Vick v. Winslow,
209 N.C. 540, 183 S.E. 750. Nor is it necessary in such an action to allege or establish either trespass or unlawful possession by defendants. But where, as here, defendants are in actual possession, and plaintiffs seek to recover possession, the action in essence is in ejectment.
Hines v. Moye,
125 N.C. 8, 34 S.E. 103.
The parties stipulated that, upon the death of Claudia Watson on 3 March, 1938, the children of Millie Stancil and of Loumenda Richardson became the owners in fee simple of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less. Accepting this as established, the proper construction of the Atlas Richardson will (which is not set out in full in the record), need not be considered; nor do we need to consider the parol division of 1922.
The owners of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less, made a parol partition thereof in 1949. A parol partition is voidable, not void.
Collier v. Paper Corp.,
172 N.C. 74, 89 S.E. 1006;
Thomas v. Conyers,
198 N.C. 229, 151 S.E. 270. As of now,
the parties
to said parol partition of 1949, their heirs or assigns, could have it declared void and be restored to their original status as tenants in common.
Duckett v. Harrison,
235 N.C. 145, 69 S.E. 2d 176. They have not done so.
It makes no difference for present purposes whether plaintiffs be treated as owners of the 5 acres identified and staked out as the Claudia Mary Etha Baldwin land in said parol partition of 1949 or as owners of an undivided interest in the 19 acres
in the center
of the Atlas Richardson land. This may become material upon the accounting for rents and profits from May, 1954. In an action for trespass, a tenant in common may recover judgment only for his proportionate part of the damages; but in an action in ejectment, one tenant in common may recover the entire tract against a third party.
Winborne v. Lumber Co.,
130 N.C. 32, 40 S.E. 825;
Lance v. Cogdill,
238 N.C. 500, 78 S.E. 2d 319, and cases cited therein.
Both plaintiffs and defendants claim under Claudia Mary Etha Baldwin, plaintiffs claiming by inheritance and defendants claiming under deed pursuant to foreclosure of the deed of trust executed by Claudia Mary Etha Baldwin to A. M. Noble, Trustee. Thus, the vital question is whether the description in the deed of trust and in the trustee’s deed is void for uncertainty.
Defendants’ assignment of error, based on Judge Sharp’s refusal to treat Judge Bone’s order as having established the sufficiency of the description, is wholly without merit. Judge Bone made no such determination. He simply denied plaintiffs’ motion for judgment on the pleadings. Plaintiffs excepted, but did not appeal. They were well advised. It is well established that an appeal does not lie from a denial of a motion for judgment on the pleadings.
Garrett v. Rose,
236 N.C. 299, 72 S.E. 2d 843;
Howland v. Stitzer,
240 N.C. 689, 84 S.E. 2d 167, and cases cited therein. Furthermore, the motion for judgment on the pleadings related to the
original
pleadings. Plaintiffs’ allegation of ownership was denied. This raised an issue of fact, to be determined by jury trial or other approved procedure.
Wells v. Clayton,
236 N.C. 102, 72 S.E. 2d 16. Aside from all this, the controversy under the
amended
pleadings was an entirely different case, involving different land.
The principles applicable in determining the sufficiency of the description are well established.
Hodges v. Stewart,
218 N.C. 290, 10 S.E. 2d 723, and cases cited therein. “The description must identify the land,
or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty.”
Higgins, J.,
in
Deans v. Deans,
241 N.C. 1, 84 S.E. 2d 321. Parol evidence is admissible to fit the description to the land. G.S. 8-39. “Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence
aliunde
to make the description complete is to be sought.”
Winborne, J.,
in
Self Help Corp. v. Brinkley,
215 N.C. 615, 2 S.E. 2d 889.
Here the description calls for
a
tract of land in
Selma Township,
in the settlement called “Coonsboro”
about
three miles north of Selma, N. C., consisting of 10.65 acres, more or less. This fits equally well any tract of the indicated acreage in “Coonsboro” about three miles north of Selma. It refers to nothing from which the land can be identified with certainty. The additional sentence, “See Will Book 6, page 5, of the Atlas Richardson Will, and Item 7 of said Will, Office of Clerk of Superior Court, Johnston County,” affords no assistance. If it be conceded that the mere reference to the Atlas Richardson will, particularly Item 7 thereof, is a sufficient reference to admit testimony as to the contents of Item 7 of said Will, the stipulations disclose that the tract devised in Item 7 was “19 acres of my tract of land on the west end.” Clearly, this does not identify the tract of 5 acres in controversy, in possession of Claudia Mary Etha Baldwin when she executed the deed of trust to A. M. Noble, Trustee, which is a part of the 19 acres
in the center
of the Atlas Richardson tract of 54 acres, more or less.
It is quite probable that Claudia Mary Etha Baldwin intended to convey to A. M. Noble, Trustee, whatever part or interest she owned in the original tract of 54 acres, more or less, albeit the explanation of the reference to a tract of 10.65 acres, more or less, does not appear. Even so, we are concerned only with the sufficiency of the description, not what we conceive Claudia Mary Etha Baldwin may have intended. Since the description does not point to any source from which it can be made certain, we agree with the ruling of Judge Sharp that the deed of trust and the trustee’s deed are void because of uncertainty in the description of the land conveyed thereby.
Apparently, the deed of trust to A. M. Noble, Trustee, secured the payment of an indebtedness due and owing by Claudia Mary Etha Baldwin. What amount, if any, defendants may be entitled to recover from plaintiffs on account of such indebtedness or otherwise is not before us for consideration. It is noted that plaintiffs, in their amended complaint, tendered to defendants the sum of $475.00, the amount of their bid at the foreclosure sale..
While the ruling that the description is insufficient and void is upheld, we are confronted here by the fact that the 5-acre tract in controversy
is not described by metes and bounds in the pleadings, or in the stipulations, or in the judgment. Nor is there a particular description of the tract of 54 acres, more or less, or of any of the three tracts of 19 acres each. Moreover, the judgment does not adjudge plaintiffs’ ownership of the 5-acre tract in controversy. It adjudges that the instruments under which defendants claim are void and that defendants are accountable to plaintiffs for rents and profits since they went into the possession of the undescribed 5-acre tract in May, 1954.
Ordinarily, an action in ejectment will be dismissed if plaintiff either fails to prove his title or fails to locate the land claimed by him. But since these parties have stipulated that Claudia Mary Etha Baldwin was in possession of the 5-acre tract, as identified and staked off, when she executed the deed of trust to A. M. Noble, Trustee, and that defendants are now in possession thereof, and no contention is made as to the identity of the 5 acres in controversy, instead of reversing the judgment and dismissing plaintiffs’ action we have decided to vacate the judgment and remand the cause. The new judgment must adjudicate affirmatively plaintiffs’ title to the 5-acre tract in controversy and contain a correct description thereof as well as determine the amount, if any, due by defendants to plaintiffs upon an accounting. In the absence of agreement as to the location of the 5 acres in controversy, the parties must proceed upon amended pleadings to have the location thereof determined.
Under this disposition of the appeal, the costs on appeal will be taxed, one-half to plaintiffs and one-half to defendants.
Error and remanded.
HiggiNS, J., took no part in the consideration or decision of this case.