Skipper v. Yow , 238 N.C. 659 ( 1953 )

78 S.E.2d 600 (1953) 238 N.C. 659

SKIPPER et al.
v.
YOW et ux.

No. 383.

Supreme Court of North Carolina.

November 25, 1953.

James & James, Charlotte, Nere E. Day, Jr., and Nere E. Day, Jacksonville, for plaintiff appellants.

Poisson, Campbell & Marshall, John J. Burney, Jr., Wilmington, Albert J. Ellis, and A. Turner Shaw, Jacksonville, for defendant appellees.

BARNHILL, Justice.

It is difficult for us to determine whether the deeds offered in evidence by plaintiff convey or attempt to convey the same tracts of land, much less that they convey the identical tract described in the petition. One conveys 25 acres, another, 150 acres; another, 250 acres, and still another, 300 acres.

Plaintiffs' Exhibit 1 is a deed from M. L. F. Redd (who is apparently the alleged common source). It is dated 19 March 1870 and conveys to Elijah Williams onehalf of his right, title, and interest in the land he (Redd) purchased from John A. Averitt, Sr. It also recites certain bounds and corners. On 1 March 1877, John B. Williams conveyed to Lewis Marine "All my right, title and interest which I, the said John B. Williams, has or may have in and to the several undivided tracts of land among the respective heirs at law of the late Elijah Williams died seized and possessed of in said county." The descriptions contained in other deeds are equally general in nature. There was no evidence that the land conveyed to Marine or any other tract described in the several deeds offered by plaintiffs is the land now claimed by them.

But we may concede, without deciding, that all of the deeds offered by plaintiffs convey one and the same tract of land or some part or interest in the same, and that they form a connected chain of title to the land Averitt conveyed to Redd and Redd conveyed to Elijah Williams. Even then, there is a fatal hiatus in plaintiffs' proof.

In the first place, plaintiffs claim through collateral heirs of Elijah Williams. If there is any evidence in the record that he died intestate or that he left no lineal descendants, it has escaped our attention. In the absence of such evidence, the plaintiffs have failed to show title through said Williams even though it be conceded that those who executed the deeds upon which plaintiffs rely are in fact his collateral heirs. Murphy v. Smith, 235 N.C. 455, 70 S.E.2d 697.

That Williams never married is recited in one or more of the deeds. But this is not evidence. It is nothing more than a self-serving declaration. Recitals contained in a trustee's or mortgagee's foreclosure deed are by statute made prima facie evidence of the truth thereof. We know of no rule, however, that gives the effect of evidence to the recitals in a feesimple deed.

In an ejectment action a plaintiff must offer evidence which fits the description contained in his deeds to the land claimed. That is, he must show that the very deeds upon which he relies convey, or the descriptions therein contained embrace within their bounds, the identical land in controversy. If one or more of his deeds convey less than the whole, he must show that the land conveyed thereby lies within the bounds, and forms a part, of the locus in quo. As to the identity of the land conveyed, a deed seldom, if ever, proves itself. Fitting the description contained in the deed to the land in controversy, or vice versa, must be effected by evidence dehors the record. Smith v. Fite, 92 N.C. 319; Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227; Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759; North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889.

"The office of description is to furnish, and is sufficient when it does furnish means of identifying the land intended to be conveyed * * * 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." Winborne, J., in Linder v. Horne, supra. [237 N.C. 129, 74 S.E.2d 231].

This rule, which prevails in this jurisdiction, is aptly stated in the headnotes to Smith v. Fite, supra, as follows: "1. Where a party introduces a deed in evidence, which he intends to use as color of title, he must prove that its boundaries cover the land in dispute, to give legal efficacy to his possession. 2. It is error to allow a jury on no evidence, or on only hypothetical evidence, to locate the land described in a deed."

The wisdom of this rule is emphasized by this case. The description contained in the deed from Williams to Marine above quoted indicates that Elijah Williams died seized and possessed of several tracts of land. Is the land in controversy one of these tracts or are they several contiguous tracts which together compose the land now claimed by plaintiffs? The record fails to answer. The descriptions contained in some of the deeds call for Swash Creek as a boundary; others (including the description contained in the complaint) do not. Thus the record title itself demonstrates the need for oral evidence to identify the land claimed as the land conveyed, if that can be done. Neither this court nor a jury can say with any degree of certainty that there is any relation between the land claimed and the land conveyed in the deeds relied upon by plaintiffs.

In our opinion the court below correctly ruled that the plaintiffs had failed to make out a case for the jury. Therefore the judgment of nonsuit entered must be

Affirmed.