Den Ex Dem. Proctor v. Pool , 15 N.C. 370 ( 1833 )

The action was brought for the half of two lots of land in Elizabeth City, known as lots No. 33 and 34. Elizabeth (371) B. Proctor was seized in fee of the two lots mentioned in the declaration. The buildings, garden, etc., were on the eastern part of the lots, which was separated from the western part (used as a pasture), by a fence, but they were all rented out together and as one tenement, by Samuel Proctor, the husband of Elizabeth, during his life. Samuel Proctor died in March, 1831, having no real estate in Elizabeth City, except the above lots; by his will he devised as follows: "I give and devise to my daughter, Ann Elizabeth Proctor, the house and lot in Elizabeth City." Elizabeth B. Proctor, having never conveyed her interest in said lots, on 8 April, 1831, and after the death of her husband, executed a deed, in which "after reciting the consideration to be the natural love and affection she had for her daughter, Ann E. Proctor, and for and in consideration of complying with the bequest, and last will and testament of her late husband, Samuel Proctor," she gave to Ann E. Proctor, "one lot of land lying in Elizabeth City, in Pasquotank County, containing one acre, more or less, which descended to said E. B. Proctor, by the death of her father, Frederick B. Sawyer, and purchased by the said F. B. Sawyer from John Bartie, reference to the deed will show the boundaries." Elizabeth B. Proctor afterwards died, having by her last will and testament devised to her youngest child, Mary Virginia, a tract of land called Tadmore; all her right, title and interest in the Juniper Swamp, as well as all her property of every kind and description, both real, personal and mixed.

The lessor of the plaintiff is the devisee named in said will. The defendant intermarried with Ann E. Proctor, who is still living.

The lots No. 33 and 34 were once the property of Margaret, the wife of Lemuel Moore. Moore and wife sold the eastern half of said lots to John Bartie, but no deed was ever executed to Bartie, and they being afterwards sold by the sheriff as John Bartie's property, the sheriff and Moore and wife (372) executed deeds to Willis Wilson, the purchaser at the sheriff's sale, in which they were described as follows: "A certain lot of ground lying and being in the town of Elizabeth City, being part of lots No. 33 and 34, as designated and distinguished in the plan of said town, part commencing on the middle of the said two lots, No. 33 and 34, on Main Street, and running a straight line through to South Street, and being the east part of the square 33 and 34, so divided by a straight line from north to south." Wilson conveyed by the same description to Frederick B. Sawyer.

The other part of said lots were conveyed by Moore and wife to Benjamin Sutton, by the following description: "A certain piece of ground lying and being in the town of Elizabeth City, being part of lots No. 33 and 34, as designated in the plan of said town, commencing in the center of lots No. 33 and 34, on Main Street, and then running a straight line from north to south, to South Street, being the west part of the square No. 33 and 34, agreeable to the before mentioned dividing line, containing one-half acre by estimation." Sutton conveyed to Frederick B. Sawyer by the same description. F. B. Sawyer died intestate, and all his real estate descended to Elizabeth B. Proctor.

The question submitted to the Court was, whether the whole of lots No. 33 and 34, passed by the deed from Elizabeth B. Proctor to Ann E. Proctor, or whether said deed conveyed only the eastern half of said lots, sold to John Bartie.

The Court being of opinion with the defendant, rendered judgment accordingly, and the plaintiff appealed. The question is, whether the western half of the town lots No. 33 and 34 passed by the deed of Mrs. Proctor to the wife of the defendant.

I think that it cannot be doubted, that if Samuel Proctor, the father, had been the owner of the premises, the whole would have passed under the will. It is plain he did not speak of the lot as a subdivision of the land forming (373) the town; for he gives the house and lot. What lot? Not No. 33, nor 34; for even within an indictment for burglary, the eastern half of both of those lots, forming the curtilage, would be part and parcel of the dwelling house, which is expressly devised. The plan of the town being thus put out of the way, as the means of identifying the estate devised, "the house and lot in Elizabeth City," must mean all of the ground contiguous to the houses which were used and occupied with the tenement, as parcel of it. For the testator disposes of it, as one entire thing; and this was all he claimed in the town.

Upon the construction of the deed, I have as little doubt. It is a general rule, that if the description be so vague or contradictory, that it cannot be told what thing in particular is meant; the deed is void. But it is also a general rule, that the deed shall be supported, if possible; and if by any means different descriptions can be reconciled, they shall be, or if they be irreconcilable, yet if one of them sufficiently points out the thing, so as to render it certain that it was the one intended, a false or mistaken reference to another particular shall not overrule that which is already rendered certain.

Attempts have been made to establish artificial rules for discovering the intention; and the offices of terms of general and particular description defined. The truth is, no positive rule can be laid down; for as each subject differs in some respects from another, and each writer will be more or less precise or perspicuous in expressing himself, the whole instrument is to be looked at, and the inquiry then made, can it be found out, from this, what the party means. In some cases it is clear that only that thing is meant in which all the particulars of the description concur. In others, the description may be by several particulars, and distinct things are found, of which one answers to the one description, and another to the other. It would seem in such case that the conveyance would be inoperative, because it was intended to pass one only, and it cannot be determined, which one; though there is most respectable (374) authority, that both should pass, rather than neither. Worthington v. Hylyer, 4 Mass. 196. But there seems to be no danger of mistaking the intention of the parties, when a thing is given by a particular name, by which it is well known, or by any other description which completely identifies it, although another particular be added, which does not apply, it is true, to the thing as before described, but is equally inapplicable to anything else. In such case the effect of the true description ought not to be weakened by a further and unnecessary description which is false. As if one give his house in A, which formerly belonged to B, and have but one house in A, it shall pass, though it never belonged to B, for but the one could be meant. Or, as mentioned in Reddick v. Leggat, 7 N.C. 543, if one grantWhite-acre, (by name); which descended from his father, White-acre, shall pass, though it descended from the mother; because it was sufficiently identified before.

In the case before us the description is, one lot of land inElizabeth City, containing one acre more or less, which descendedto said E. B. Proctor from her father F. B. S. The donor had no other land in the town but these two town lots. Of the whole as one tenement, this description and every part of it is true, and it is not true of any part, taking the parts separately. In respect of either end, the eastern or western, it is not one lot, for, divided from north to south, each end would be constituted of part of both town lots. So with respect to quantity; whether the division be from north to south, according to the conveyance to Sawyer, or from east to west, according to the plan of the town, each lot would not contain an acre, but half an acre. Now it is true that quantity is not generally descriptive, yet it may be so. If one own two lots in a town; one of half an acre, and the other of an acre, and grant his "acre lot" or his "lot containing one acre," it is not void, but will pass the larger lot, although it may upon admeasurement be a few feet over or under one acre; for (375) the purpose is not to denote how much, but which parcel was meant — much more, if one have two lots, contiguous, each containing half an acre, and enclosed and occupied together, and grant one lot now in his occupation, shall the whole pass. For lot is then used as piece, or parcel, or tract of land. Here, it has that sense. The gift is not of a lot of the town, but a lot of land in the town, that is, a certain piece then containing one acre, which descended from the donor's father.

But it is further identified by the reference in the deed to the husband's will. The donor declares, that the purpose of making the deed is to comply with the will. The land did not pass by it, not because the description there given was insufficient, but because the testator had not the title. The sole object was to supply that defect. The land then intended to pass by the deed, was the lot devised in the will, and the deed must be construed as if the words "which my husband gave to said Anne E. Proctor by will" had been inserted in the descriptive clause.

But the deed adds, "which was purchased by the said F. B. S. from JohnBartie, reference to the deed will show the boundaries. " On this it is admitted by the plaintiff, that the eastern half of the two lots will pass; but it is denied, that the other half does. Now if they form an essential part of the description, so that the estate cannot be ascertained without them, they cannot be rejected, and then the deed is void in toto. For as a description, this is not true of any part of the land; since Sawyer did not purchase from Bartie, nor take any deed from him. But in fact this is not an essential part of the description. The thing can be known without having this property. It is only a further description, of what had before been fully and sufficiently identified, and does not render that uncertain, nor the deed unintelligible.

PER CURIAM. Judgment affirmed.

Cited: Dodson v. Green, post, 491; Belk v. Love, 18 N.C. 73; Mayo v.Blount, 23 N.C. 286; Smith v. Lowe, 24 N.C. 461; Ehringhaus v.Cartwright, 30 N.C. 43; Simpson v. King, 36 N.C. 13; Joiner v. Joiner,55 N.C. 72; Roberson v. Lewis, 64 N.C. 737; Jones v. Robinson, 78 N.C. 400;Henley v. Wilson, 81 N.C. 408; Clark v. Atkins, 90 N.C. 640;Cox v. Cox, 91 N.C. 263; Harrell v. Butler, 92 N.C. 23; Scull v.Pruden, Ib., 173; Tillett v. Aydlett, 93 N.C. 20; Leeper v. Neagle,94 N.C. 342; Edwards v. Bowden, 99 N.C. 81; Shaffer v. Hahn,111 N.C. 11; Buckner v. Anderson, Ib., 575; Mortgage Co. v. Long,113 N.C. 126; Cox v. McGowan, 116 N.C. 134; Peebles v.Graham, 128 N.C. 221, 227; Hawkins v. Lumber Co.,139 N.C. 164.

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