Euliss v. . McAdams

13 S.E. 162, 108 N.C. 507

• Court: Supreme Court of North Carolina
• Decided: February 5, 1891
• Status: Published

Opinion

Avery, J.

after stating the facts: The plaintiff offered two deeds, the first from A. Murray and wife to the Falls of Neuse Manufacturing Company, and the second from W. J. Murray and wife to the same company. The defendant objected to the introduction of both, on the ground that the descriptive clauses were too vague to admit of explanation by extrinsic evidence.

The descriptions were, respectively, in the following words:

First. “ A tract of land in Alamance County, State of North Carolina, adjoining the lands of John Staley, David Staley and Joseph McAdams, known as the Sellars tract, subject to whatever rights the widow Sellars may have in it, containing one hundred and forty acres, more or less.”

Second. Seven tracts, or interest in seven tracts, conveyed by one deed, as follows: “ The following tracts of land in Ala. manee County, State of North Carolina, iheir dwelling-house and the land on which the same is situated, containing about eight acres, more or less, adjoining Big Palls Water-power lands, and the lands heretofore owned by Albert Murray, being the place on which we now reside. For a more specific description reference is made to our title papers.

“Also, our undivided half of the following lands, situate in said county of Alamance, to-wit:

“1. The John Dixon tract, containing about one hundred and thirty acres, more or less, adjoining the lands of Austin Isley, Jesse Rippey, Jesse Grant and others ;

“ 2. The Long tract, containing about one hundred and ten acres, more or less, situated on the east side of Haw River, adjoining the lands of W. T. Wilkins, Mrs. Kirkpatrick and others;

“3. The Sellars tract, containing about one hundred and sixteen acres, more or less, situated on the south-west side of Haw River, adjoining the lands of Joseph McAdams, John Staley and others;

“4. The Staley tract, containing twenty-seven acres, more or less, adjoining the lands of Mebane Morrow, Joseph McAdams and others.

“ Tracts number three and four above named are subject to the dower rights, if anjr, which the widow Nancy Sellars may have therein.

“ 5. A tract containing about six acres, called Morrow tract, for which an exchange was made with Mebane Morrow.

“ 6. And also their interest, being a half interest, in all their lands lying between Haw River and Stony Creek, up to the line of J. H. and W. E Holt & Co., including the Big Falls Waterpower and Mills, and all the rights, privileges and appurte nances thereto belonging, which lands were heretofore owned by W. J. and A. Murray, as partners and tenants in common, and also all of the rights, privileges and interests of said W. J. Murray, whether as co partners or tenants in common or in his own right, in and to the bed of Haw River and Stony Creek, or either of them, and the waters thereof. For a more particular description of tracts one, two, three four, five and six, reference is hereby made to the title papers therefor to W. J. Murray and W. J. and A. Murray.”

The descriptive words, “known as the Sellars tract” (omitting as surplusage the residue of the description), pointed with sufficient certainty to possible proof of the existence and location of a body of land which, according to general reputation, was so designated, and rendered parol proof competent to fit it to the thing. Henly v. Wilson, 81 N. C., 405; Smith v. Low, 2 Ired., 457. In the case last cited, Chief Justice Ruffin says that, by the description “ Mount Vernon, the late residence of General Washington,” the place referred to is better known than by setting forth the metes and bounds of the tract on which his dwelling-house was located.

. A reference to the title papers of the grantors in the other deed from William J. Murray and wife, is equivalent to incorporating the full descriptions set forth in the papers referred to in the former deed, and, of course, made the conveyance mentioned, together with competent evidence to locate the land aliened by them, competent. Everitt v. Thomas, 1 Ired., 252. It is unnecessary, in order to settle the question of law whether this part of the deed is void for vagueness, that we should go further and pass upon the sufficiency of the additional designations, as “their dwelling-house and the land on which the same is situated,” etc., or “the place on which we now reside.” Carson v. Ray, 7 Jones, 610; Murdock v. Anderson, 4 Jones’ Eq., 77.

The descriptive words, “ the John Dixon tract,” “ the Long tract,” “the Sellars tract,” and the “Staley tract,” used in the second deed, were sufficient to point to proof aliunde that these di'tinct bodies of land were generally known by such designations. Smith v. Low, supra; Scull v. Pruden, 92 N. C., 368; Henly v. Wilson, supra. Evidence was unquestionably admissible, not only to show the location of the tract “called the Morrow tract,” but to identify the boundaries by a deed of exchange from Mebane Morrow and to consider such metes and bounds as if they were incorporated into the descriptive clause of the deed from W. J. Murray and wife. Henly v. Wilson, supra; Everitt v. Thomas, supra.

The description numbered six, is not too indefinite, because it was competent for the plaintiff, under its terms, to identify the land as lying between Haw River and Stony Creek, and extending up to the lines of J. PI. and W. E. Holt & Co., so as to include the Big Falls Water-power. Horton v. Cook, 1 Jones’ Eq., 270.

The further designation of the land as that “ owned by W. J. Murray and A. Murray, as partners and tenants in common,” together with the reference to title papers, which follows and applies to all of the tracts numbered from one to six, opens the door for the admission of testimony to identify the land lying between those rivers by written evidences tracing title to the two Murrays as tenants in common. It was likewise competent to show title as tenants in common, or sole seizin for the beds of Haw River and Stony Creek in W. J. Murray, all title and interests in these localities proven to have been in him, having passed, by the deed, to the Falls of Neuse Company.

The Judge states that the plaintiff offered the testimony of several witnesses tending to prove his contention as to the location of the land claimed by him, and as to the alleged trespass; but this evidence is not set forth in detail in the statement. The defendant did not except, in the Court below, to the sufficiency of the whole of the testimony to go to the jury, as tending to fit any or all of the descriptions to the land claimed by the plaintiff, and to show it to be identical with that described in the complaint. We cannot, therefore, consider the exception raised here, for the first time, that the evidence was not, in fact, sufficient to locate the land. With notice of such an assignment of error, we assume that the Judge would have sent up much additional testimony bearing upon this question. McKinnon v. Morrison, 104 N. C., 357.

We find in the brief of the defendant some statements in conflict with those in the case on appeal, and much addenda to the record, which, of course, we cannot consider. The case on appeal states that the defendant purposed to offer a deed from Holt to Jeffries, dated in 1887, to locate his south-west corner, and not, as contended by defendant, simply to contradict Trollinger. It is competent to establish the lines and courses of a tract of land by showing where the surveyor actually ran when making the boundaries at the instance of the parties to the conveyance, and with a view to its execution, as it is to locate a patent by showing marks, corresponding in age and course with the calls of the deed, upon a line of trees. Ingram v. Colson, 3 Dev., 520; Topping v. Saddler, 5 Jones, 357; Roberts v. Preston, 100 N. C., 248. But. the junior deed from Holt to Jeffries, dated in 1887, was not. competent as evidence to locate the corner of the deed previously made to the plaintiff. Sasser v. Herring, 3 Dev., 341. The objection of the plaintiff is based upon the ground of incompetency, as evidence of the location of the corner,' of an older deed. It is too late to set up other grounds of exception in this Court.

There is no error in either of the rulings of the Court excepted to, and the judgment must be affirmed.

Affirmed.