North Carolina Self Help Corp. v. Brinkley

2 S.E.2d 889, 215 N.C. 615, 1939 N.C. LEXIS 324

• Court: Supreme Court of North Carolina
• Decided: May 24, 1939
• Status: Published

Opinion

WiNBORNE, J.

We are of opinion that defendants’ exceptive assignments with respect to failure of the court to charge in relation to the second and third issues are well taken. We find no error in the judgment below as it relates to the first issue.

1. Defendants challenge the sufficiency of the description in the deed of 29 September, 1922, from Zeb Y. Brinkley and wife to Susie Drink-water, to include their undivided one-half interest in Lot No. 3 or the fee in Lot No. 4.

“It is ... a general rule that the deed must be upheld, if possible, and the terms and phraseology of description will be interpreted with that view and to that end, if this can reasonably be done. The Court will effectuate the lawful purposes of deeds and other instruments if this can be done consistently with the principles and rules of law applicable.” Merrimon, J., in Edwards v. Bowden, 99 N. C., 80, 5 S. E., 283.

The decisions of this Court generally recognize the principle that a deed conveying land within the meaning of the statute of frauds must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. Massey v. Belisle, 24 N. C., 170; Harris v. Woodard, 130 N. C., 580, 41 S. E., 790; Cathey v. Lumber Co., 151 N. C., 592, 66 S. E., 580; Bateman v. Hopkins, 157 N. C., 470, 73 S. E., 133; Patton v. Sluder, 167 N. C., 500, 83 S. E., 818; Timber Co. v. Yarbrough, 179 N. C., 335, 102 S. E., 630. The office of description is to furnish., and is sufficient when it does furnish, means of identifying the land intended to be conveyed. Thompson on Real Property, Vol. 4, sec. 3074. Harrison v. Hahn, 95 N. C., 28; Cathey v. Lumber Co., supra; Bissette v. Strickland, 191 N. C., 260, 131 S. E., 655. Where the language used is patently ambiguous, parol evidence is not admissible to aid the description. But when the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land. 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. Thompson on Real Property, Vol. 4, sec. 3088, et seq. Murdock v. Anderson, 57 N. C., 77; Capps v. Holt, 58 N. C., 153; Robeson v. Lewis, 64 N. C., 734; Edwards v. Bowden, supra; Blow v. Vaughan, 105 N. C., 198, 10 S. E., 891; Cathey v. Lumber Co., supra; Alston v. Savage, 173 N. C., 213, 91 S. E., 842; Green v. Harshaw, 187 N. C., 213, 121 S. E., 456.

Descriptions such as these have been held to be sufficiently definite to admit of parol proof to identify the land: “My house and lot in the town of Jefferson, N. C.” — Carson v. Ray, 52 N. C., 609; “Her house and lot north of Kinston” —Phillips v. Hooker, 62 N. C., 193; “My farm” — Sessoms v. Bazemore, 180 N. C., 102, 104 S. E., 70. On the other hand, “One house and lot in the town of Hillsboro” is held insufficient. Murdock v. Anderson, supra. These are indicative of the trend of decisions in this State.

Applying these principles and adverting to the description in the deed before us, these are the means by which the lot intended to be conveyed may be identified: (1) “A certain store lot;” (2) “In the town of Manteo, in the said County of Dare, North Carolina;” (3) “All of their (grantors’) right, title, interest and estate;” and (4) “The interest hereby conveyed being an undivided one-half interest.” Webster gives as one of the many definitions of the word ‘store’: “A storehouse; a warehouse; magazine; . . . any place where goods are kept fox-sale; ... a shop.” That definition may reasonably be applied here to mean a certain storehouse lot. Hence, the descriptive woi-ds may be fairly interpreted as meaning a certain lot on which there is a storehouse in the town of Manteo, Dare County, North Carolina, in and to which all the right, title, interest and estate of the grantors thereby conveyed is an undivided one-half interest. We are of opinion that the description is sufficiently definite to admit of parol evidence for the purpose of identification. The question then arises: On the evidence in this case, does this description fit any particular lot in the town of Manteo? The evidence indicates conclusively that it fits only Lot No. 3 of the subdivision of the W. T. Brinkley property. That is the only store lot in Manteo in which the defendants then had an undivided one-half interest. In other words, it requires the combined phrases to make the description sufficient to identify Lot No. 3. Hence, we hold there is no error in the ruling and instruction of the court with respect to the first issue. "We are of opinion, however, that the description is wholly insufficient to include Lot No. 4.

The words “containing one-half acre, more or less” are of too general meaning to materially aid the description given.

2. Defendants assign as error the failure of the court to charge the law with respect to their contention that possession of Lot No. 4 by S. A. Griffin with permission of Zeb V. Brinkley would not be adverse possession. The court defined adverse possession, but, in applying the definition to the evidence, failed to charge that if the erection and use of the garage by Griffin were with the permission and approval of Brinkley such possession would not be adverse and would not tend to ripen title in plaintiffs. This affected a substantive right to which without request defendants are entitled. Spencer v. Brown, 214 N. C., 114, 198 S. E., 630. This failure is error affecting the second issue.

3. Defendants assign as error, with respect to the third issue, the failure of the court to charge the jury in substance, that if O. J. Jones at the time of taking the deed from Mrs. Drinkwater and paying the purchase money knew, or by the exercise of reasonable diligence could have known, the status of the title to the property involved, then the doctrine of equitable estoppel would not apply. In the light of the evidence in the case we are of opinion that this exception is well taken. The constituent elements of a good equitable estoppel are stated in Boddie v. Bond, 154 N. C., 359, 10 S. E., 824, quoting from Eaton in treatise on Equity, as follows:

“1. Words or conduct by the party against whom the estoppel is alleged, amounting to a misrepresentation or concealment of material facts.

“2. The party against whom the estoppel is alleged must have knowledge, either actual or implied, at the time the representations were made, that they were untrue.

“3. The truth respecting the representations so made must be unknown to the party claiming the benefit of the estoppel at the time they were made and at the time they were acted on by him.

“4. Tbe party estopped must intend or expect tbat bis conduct or representations will be acted on by tbe party asserting tbe estoppel, or by tbe public generally.

“5. Tbe representations or conduct must bave been relied and acted on by tbe party claiming tbe benefit of tbe estoppel.

“6. Tbe party claiming tbe benefit of tbe estoppel must bave so acted, because of sucli representations or conduct, tbat be would be prejudiced if tbe first party be permitted to deny tbe truth thereof.”

Tbe vice in tbe charge of tbe court is tbat it appears to relate only to tbe time tbe statements were alleged to bave been made by defendant Zeb Y. Brinkley on Labor Day, and not to tbe time I ones paid tbe purchase price. Tbe truth respecting tbe representations must be unknown to tbe party claiming tbe benefit of tbe estoppel, not only at tbe time they were made but at tbe time they were acted on by him.

Other assignments are not considered, as tbe matters to which they relate may not recur on another trial.

Plaintiffs are entitled to judgment on tbe first issue, but there must be a new trial on tbe second and third issues.

Affirmed in part.

New trial in part.