Carson v. . Ray ( 1860 )

The lessor of the plaintiff claimed title under a judgment and execution against one Long, and a sheriff's sale and deed made thereon, all of which, with the defendant's possession, were admitted.

The defendant claimed title, and gave in evidence a deed to him from the said Long for the premises, for a full and valuable consideration, in which the premises are described as follows, to wait: "My house and lot in the town of Jefferson, in Ashe County, North Carolina." The deed bore date and was executed prior to the teste of the execution under which the lessor of the plaintiff claimed. At the time the said deed was executed, Long, the bargainor, had a fee-simple right to this house and lot in the said town of Jackson, and there was no evidence that he owned any other house and lot therein, nor was it so alleged.

It was contended that the defendant's deed was void for uncertainty in the description of the premises, and that no title passed thereby, which was the only question debated between the counsel of the parties. A verdict was, by consent, rendered for the plaintiff, subject to the (610) opinion of the court on the question of the law raised in the case, with leave for him to set aside and enter a nonsuit in case he should be of opinion against the plaintiff. Subsequently, on consideration of the question reserved, his Honor ordered the plaintiff to be nonsuited. We agree with his Honor who tried the cause, that the description of the house and lot contained in the deed under which the defendant claimed was sufficiently certain to identify and convey the property. The terms, "my house and lot in the town of Jefferson," if contained in a will, would undoubtedly be sufficient to pass the testator's house and lot, in the absence of any proof to show that he had more than one. Thus it was held in a strongly analagous case that a bequest of "my twenty-five shares of bank stock," when the testator had just that number of shares, was a specific legacy, while a designation of them as simply "twenty-five shares of stock," without the prefix of the word "my," was a general legacy. Kinseyv. Rhem, 24 N.C. 192. If, then, such a description would be sufficiently certain in a will, we cannot perceive any reason why it should not be so in a deed, as, in both instruments, the only requisite as to the certainty of the thing described is that there shall be no patent ambiguity in the description by which it is designated.

A house and lot, or one house and lot, in a particular town, would not do, because too indefinite on the face of the instrument itself. See Plummerv. Owens, 45 N.C. 254; Murdock v. Anderson, 57 N.C. 77. But "my house and lot" imports a particular house and lot, rendered certain by the description that it is one which belongs to me, and, upon the face of the instrument, is quite as definite as if it had been described as the house and lot in which I now live, which is undoubtedly good. Where the deed or will does not itself show that the grantor or devisor had more than one house and lot, it will not be presumed that he (611) had more than one; so that there is no patent ambiguity; and if it be shown that he has more than one, it must be by extrinsic proof, and the case will then be one of a latent ambiguity, which may be explained by similar proof. It is true that in the case of the latter kind of ambiguity the extrinsic proof may turn out to be insufficient to remove the uncertainty thus raised, and the grant or devise may fail on that account; but that is very different from the case of a patent ambiguity, which is always a question for the court, and in which the court must see that the subject-matter of the grant or devise is so uncertain that there is nothing described to which any proof can apply. Edmundson v. Hooks, 33 N.C. 373, to which we have been referred by the plaintiff's counsel, furnishes an apt illustration. In that case it appeared that the sheriff held several executions against John Hooks and others: one against John Hooks alone, and one against John Hooks and one Woodard. The sheriff's deed recited all these executions; a levy upon "the defendant's lot at Nahanta Depot"; a sale; and there upon conveyed "the lots levied on" to the lessor of the plaintiff. The court very properly held it to be a case of patent ambiguity, and that the description of the lots intended to be conveyed was too uncertain to be good. "Were the lots those of John Hooks alone, or one of the other defendants in the execution, or were they the joint property of all?" There was undoubtedly an uncertainty as to whose property the lots were, which was apparent upon the face of the deed itself, and of course the court was obliged to say that the description was void for the uncertainty. Had John Hooks been the only defendant in the execution, then the description of "the defendant's lots at Nahanta" would have pointed to something definite, to wit, John Hook's lots at that place, and the decision would have been different.

PER CURIAM. Affirmed. Cited: Robeson v. Lewis, 64 N.C. 737; Henly v. Wilson, 81 N.C. 409;Farmer v. Batts, 83 N.C. 389; Blow v. Vaughan, 105 N.C. 205; Euliss v.McAdams, 108 N.C. 511; Lowe v. Harris, 112 N.C. 478; Farthing v.Rochelle, 131 N.C. 564; Rodman v. Robinson, 134 N.C. 515; Janney v.Robbins, 141 N.C. 403; Bateman v. Hopkins, 157 N.C. 472; Pate v. LumberCo., 165 N.C. 187; Speed v. Perry, 167 N.C. 126.

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