Bailey v. . Hayman , 218 N.C. 175 ( 1940 )

Petition for partition. Plea of sole seizin by respondent. Order of reference. Report of referee in favor of plaintiffs. Exceptions to report by defendant and demand for jury trial. Directed verdict for defendant.

Plaintiffs appeal, assigning error. On the hearing, the case was made to turn on the proper construction of the following description in a deed from Thos. J. Markham, Commissioner, to Hattie M. Dough:

"Lying and being in Nags Head Township, Dare County, and bounded as follows: Situated on the north end of Roanoke Island and known as the Abby Dough tract and bounded on the north by the land of the heirs of Thos. A. Dough, deceased, on the east by a tract of land known as the Richardson tract; on the south by the lands of Hattie M. Dough, and on the west by the lands of the heirs of Spencer Etheridge, deceased, containing seventy (70) acres, more or less, and being the same land conveyed to Abby Dough and husband, Warren A. Dough, by William S. Etheridge, by deed duly recorded in Book No. 10, page 196, office of the register of deeds of Currituck County, and being the same place where Hattie M. Dough now resides."

The question in difference arises out of the attempted determination and location of the eastern boundary of the land covered by the above description.

The plaintiffs contend that the Richardson tract which they here seek to partition is timber land lying immediately east of the Abby Dough tract, which latter tract consists of cultivated land, with dwelling house thereon, and is known as the home place. They admit that the foregoing deed covers the Abby Dough tract, but they deny that it also conveys the Richardson tract.

The defendant, on the other hand, insists that the entire tract, including the woodland, or the part here sought to be partitioned, is known as the Abby Dough tract, and that the "Richardson tract," mentioned as the eastern boundary, while ostensibly a locative call, is, in reality, a fugitive or indeterminable call in the description. 8 Am. Jur., 747; 16 Am.Jur., 589. Each side offered evidence tending to support its position.

The plaintiffs concede that both tracts, as they speak of them, are within the outer bounds of the William S. Etheridge deed to which reference is made in the Markham deed, and that the defendant is the sole owner of whatever is conveyed by the Markham deed.

Upon this concession, the trial court held as a matter of legal construction, ipso jure, that the reference to the William S. Etheridge deed was equivalent to incorporating its calls as a second description in the Markham deed, and that, therefore, the Richardson tract as the plaintiffs speak of it, is covered by the description in the Markham deed. Accordingly, the jury was instructed to find for the defendant. The correctness of this ruling is challenged by the appeal.

The evidence offered on behalf of the plaintiffs tends to bring the case within the principles announced in Von Herff v. Richardson, 192 N.C. 595, 135 S.E. 533; Ferguson v. Fibre Co., 182 N.C. 731, 110 S.E. 220;Williams v. Bailey, 178 N.C. 630, 101 S.E. 105; Potter v. Bonner,174 N.C. 20, 93 S.E. 370; and Cox v. McGowan, 116 N.C. 131,21 S.E. 108. That offered by the defendant tends to bring it within the doctrine of Quelch v. Futch, 172, N.C. 316, 90 S.E. 259.

It is for the jury to say whether the plaintiffs have located the Richardson tract according to their contention. Edwards v. Bowden,99 N.C. 80, 5 S.E. 283, 6 A.S.R., 487.

In partition, upon a plea of sole seizin, non tenent insimul, the burden is on the plaintiff to show title as alleged, i.e., the tenancy in common.Huneycutt v. Brooks, 116 N.C. 788, 21 S.E. 558. There was error in directing a verdict for the defendant.

New trial.