Morris v. . Connor

12 S.E. 917, 108 N.C. 321

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

Opinion

Avery, J.:

We can draw no other inference from the unsatisfactory statement of the case on appeal than that his Honor below excluded the chattel mortgage because the description of the property conveyed was upon its face too vague. While it seems that the Court heard testimony, it was not directed to the identification of the articles mentioned in the mortgage, and the Judge subsequently stated in explicit terms that the objection sustained was to the com-peténcy of the mortgage, and not to the sufficiency of the evidence offered to be submitted to the jury upon the question of its separation from other similar property and consequent complete identification.

Although articles of personal property may not be described in a conveyance or an executory contract for sale in such terms as to identify and distinguish them from other similar property, and the descriptive words used may not point to evidence aliunde by which they can be identified, the contract or conveyance will not be declared void upon its face, but will be enforced if parol testimony, sufficient to satisfy the jury, that the property was in feet separated átthe time when the contract or conveyance was executed, so that the contracting parties mutually understood what it was and clearly identified it. Carpenter v. Medford, 99 N. C., 495; Dunkart v. Rhinehart, 89 N. C., 354; Harris v. Woodward, 96 N. C., 232; Goff v. Pope, 83 N. C., 123.

The Courts have drawn a distinction between deeds and contracts relating to realty and those that affect personalty. The rule in reference to the description of personal property in written -contracts or bills of sale is less-rigid than those applicable to any interest in land falling within the inhibition of the statute of frauds, because all agreements for the sale of personalty can be proven by oral testimony. Carpenter v. Medford and Dunkart v. Rhinehart, supra. In Blow v. Vaughan, 105 N. C., 204, one of the reasons for requiring nicety in the identification of land conveyed by deed, was stated as follows:

“ The rule that the descriptive words in the deed, with the aid of evidence aliunde to which they point, must, in order to establish the validity, identify the boundaries of the land conveyed, has been sanctioned by this Court, not only upon the idea that there must be a certain subject-matter in the deed, but because its observance is essential to the proper enforcement of the statute of frauds. The evasion is as palpable and dangerous a violation of the statute, when it is accomplished by amending a void contract, as when the entire contract is proven by parol evidence.”

The mortgage was competent upon its face, and after being-admitted, if, in fact, the plaintiff failed to offer any testimony tending to show that, at the time when it was executed, the contracting parties identified and mutually agreed as to the particular property that passed by it, then it was the province of the] Court to so instruct the jury. But if such was the rulingjof his Honor, it does not so appear from the statement of the case.

There is error, for which a new trial must be grante ).

Error.