Cathey v. Buchanan Lumber Co.

66 S.E. 580, 151 N.C. 592, 1909 N.C. LEXIS 327

• Court: Supreme Court of North Carolina
• Decided: December 23, 1909
• Status: Published

Opinion

Bkoww, J.,

after stating the case: The only controversy presented for our decision by the assignments of error arises upon the ruling of the court below, that the description’ of the land attempted to be conveyed by deed from 0. Randolph et als. to John M. King, upon which the defendant relies to prove title, is insufficient and so indefinite as not to permit the introduction of parol evidence to locate the land.

We have considered with care the very full and well-prepared brief of the learned counsel for appellants, and are nevertheless of opinion that the deed is void for uncertainty in describing the property to be conveyed.

The object of a descriptive part of a deed is to define what the parties intend — the one to convey, the other to receive; and when that is doubtful, the settled rules of construction invoked by appellant and invented by courts to aid them in ascertaining the intent of the parties are resorted to. But the question presented here comes rather within the rules of evidence than of construction.

Parol evidence is never received for the purpose of varying or contradicting a deed, or to supply a description altogether wanting, or to complete one so vague and indefinite as to be wholly unintelligible. When the deed is not altogether void for uncertainty, but contains a defective description of real property, parol evidence is received to remove the ambiguity and to identify the property, but it is never received to show the intention of the parties wholly outside and independent of the description contained in the instrument itself.

This is the substance of the many decisions in this State. The difficulty lies generally in applying the rule to the descriptive words of the conveying instrument.

The deed under which defendant claims does not purport to convey the whole of a described tract of land, but only a certain number of acres thereof, to-wit, “324 acres of land, part of a certain tract of land composed of Nos. 3044, 3097 and 3098, in Graham County.” The boundaries of the entire tract, from which the 324 acres are to be taken, are set out with exactness, and the entire tract, as stated in the deed, contains 724 acres.

The deed furnishes no means by which the 324 acres can be identified and set apart, nor does the instrument refer to something extrinsic to it, by which those acres may be located.

It is self-evident that a certain part of a whole cannot be set apart unless the part can be in some way identified. Therefore, where a grantor undertakes to convey a part of'a tract of land, his conveyance must itself furnish the means by which the part can be located; otherwise his deed is void, for it is elementary that every deed of conveyance must set forth a subject-matter, either certain within itself or capable of being made certain by recurrence to something extrinsic to which the deed refers.

This ease is somewhat like Grier v. Rhyne, 69 N. C., 350, wherein Judge Reade said: “The difficulty in the defendant’s way is that his contract of purchase of thirty or thirty-five acres, to be taken off the tract of seventy acres, without saying where it is to be taken off, is so vague and indefinite that he cannot 'enforce it specifically. It is uncertain in quantity, and to ascertain the boundary there is no reference to anything by which the quantity or place could be made certain.” In the case before the Court the deed in question does not even state whose lands this particular 327 acres adjoins. The reference, “adjoining lands of Alexander Barring and others,” refers to the 735-acre boundary and not to the part to be taken off.

In Harrison v. Hahn, 95 N. C., 28, Chief Justice Smith said: “The office of the descriptive words is to ascertain and to identify an object; and parol proof is heard, not to add to or enlarge their scope, but to fit the description to the thing described. "When they are too vague to admit of this, the instrument in which they are contained becomes inoperative and void.”

In Harris v. Woodard, 130 N. C., 580, the Court held that a deed which attempted to convey three acres, to be taken from a forty-aore tract, without fixing the beginning point or boundary of tbe three acres, was too vague and indefinite to admit of parol evidence to support it. This deed referred to a storehouse and grist mill which was situated on the three acres.

Other cases in point are Harrell v. Butler, 92 N. C., 20; Dickens v. Barnes, 79 N. C., 490; Murdock v. Anderson, 57 N. C., 77; Allen v. Chambers, 39 N. C., 125; Capps v. Holt, 58 N. C., 153; Roberson v. Lewis, 64 N. C., 134. In the case of Dickens v. Barnes, supra, speaking of the vagueness of the description in the deed, the Court said: “These questions cannot be answered by facts dehors the deed established by parol proof, because it is a patent ambiguity, a question of law for the court, and not of fact for the jury.” In Dail v. Jones, 85 N. C., 221, it was held that parol evidence that grantor put grantee in possession immediately upon the execution of the deed was inadmissible for the purpose of identifying the land conveyed, where the description contained in the deed was void for uncertainty.

The question as to whether the grantors in this deed under consideration intended to convey the whole boundary, containing 724 acres, is set at rest by reference, not alone to the descriptive words, but to the language of the habendum, “To have and to hold the aforesaid 327 acres, being a part of the aforesaid tract of land,” etc.

Upon a review of the record, we find

No error.