Bissette v. . Strickland

131 S.E. 655, 191 N.C. 260, 1926 N.C. LEXIS 54

• Court: Supreme Court of North Carolina
• Decided: February 24, 1926
• Status: Published

Opinion

Brogden, J.

Tbe question arising from tbe record is whether tbe description of tbe property in tbe mortgage deed in controversy can be aided by parol testimony or whether tbe mortgage is void by reason of vague and indefinite identification of tbe property conveyed. Tbe function of tbe description in conveyances is to identify tbe land covered by tbe conveyance. C. S., 992, is as follows: “Vagueness of description not to invalidate. No deed or other writing purporting to convey land or an interest in land shall be declared void for vagueness in tbe description of tbe thing intended to be granted by reason of tbe use of tbe word “adjoining” instead of tbe words “bounded by,” or. for tbe reason that tbe boundaries given do. not go entirely around tbe land described: Provided, it can be made to appear to tbe satisfaction of tbe jury that tbe grantor owned at tbe time of tbe execution of such deed or paper-writing no other land which at all corresponde'd to tbe description contained in such deed or paper-writing.”

This statute applies only where there is a description which can be aided by parol, but not when there is no description. Harris v. Woodard, 130 N. C., 580.

It cannot be said that tbe mortgage contains no description of tbe land conveyed, because reference is made to adjoining owners and tbe land is further identified as being a part of tbe Mary A. I. Bissette estate. While tbe description is not complete, and perhaps may stand upon tbe border line of legal sufficiency, still it is within tbe principle announced in Farmer v. Batts, 83 N. C., 387, which principle has been firmly established, as settled law, by an increasing line of decisions reaffirming tbe soundness of that decision. Johnson v. Mfg. Co., 165 N. C., 105; Patton v. Sluder, 167 N. C., 500; Norton v. Smith, 179 N. C., 553; Green v. Harshaw, 187 N. C., 213; Freeman v. Ramsey, 189 N. C., 790.

In obedience to tbe legal principles of construction deducted from tbe pertinent decisions of this Court we bold that tbe description in tbe mortgage is sufficient to permit tbe admission of parol evidence to identify tbe land or to fit it to tbe land intended to be conveyed. Therefore, tbe exceptions taken to parol evidence of identity, admitted by tbe trial judge are untenable. While tbe evidence was not altogether positive and unequivocal, and even to some extent conflicting, its weight and credibility was for tbe jury.

Tbe fact that tbe acreage in tbe mortgage was referred to as twenty acres, more or less, and that there was evidence that tbe tract con tained twenty-five, thirty or thirty-one acres, does not affect the principle. Patton v. Sluder, 167 N. C., 500.

We have given careful consideration to all the exceptions presented in the record, and for the reasons given, we are constrained to hold that the evidence of identification was properly admitted and the case properly tried.

Affirmed.