Euliss v. . McAdams , 108 N.C. 507 ( 1891 )

The descriptions contained in the deeds offered by the plaintiff to show title are set forth in the opinion. The defendant contended (508) that the deeds were void for uncertainty in all of the descriptions.

It was admitted that the defendant owned the land joining this tract, and, while the plaintiff was required to prove his title, the main contention between the parties was as to the location of their adjoining lines, as will appear by the plat attached to the record.

Plaintiff also offered a deed from D. W. Huffman and wife to defendant for 105 acres, 8 April, 1870, and another deed from same to same for 100 acres, more or less, 21 March, 1874, and a grant to William Mebane for 400 acres, March, 1795, and a deed from John Huffman to Daniel Huffman in 1808, and much testimony as to the location of defendant's land, for the purpose of establishing as a fact that the defendant's land stopped at X on the plat, and not at Y, as claimed by defendant.

The defendant, during the cross-examination of one of plaintiff's witnesses, offered a grant to Benj. Rainy, 1799; and a deed from Benj. Rainy to Neill B. Rose, 1807; and a deed from William Mebane to Jos. Murray, 1799; and a deed from William Mebane to Thomas Cole, 1796; and a deed from Thomas Cole to John Huffman, 1797; and a deed from John Huffman to Daniel Huffman, 1808; and the will of Daniel Huffman, devising to John Huffman the same land, and the two deeds offered by plaintiff Huffman to McAdams; all of these for the purpose of locating defendant's land.

John J. Trollinger was examined as a witness by plaintiff for the purpose of locating defendant's southwest corner at X instead of at Y, and testified that at one time he had owned the land lying west of the defendant; that he understood that Sellars' land joined his (witness'); that Jeffries now owns the land which witness formerly owned; that Jeffries' corner is the same as witness' corner was, though witness does not know where Jeffries claims to; that Jeffries bought from the Holts the land witness owned — no more and no less; all that (509) witness owned was conveyed to Holt.

Defendant then proposed to offer a deed from Holt to Jeffries, in 1887, to locate this corner.

Objected to by the plaintiff, upon the ground that this deed was junior to plaintiff's deed and could not be offered to locate an older tract. Objection sustained. Defendant excepted.

After much evidence on both sides, the defendant offered a deed from Murray, sheriff, to E. M. Holt for the Jeffries land, 10 January, 1872, for the purpose of locating the Jeffries corner at Y, and by this means locate defendant's corner at Y. Defendant's deed for this tract was dated 1870.

Plaintiff objected, because an older deed cannot be located by a junior. Objection sustained. Defendant excepted.

The jury found the issues in favor of the plaintiff.

Rule for new trial, for errors alleged. Rule discharged. Judgment for plaintiff. Defendant appealed. The plaintiff offered two deeds, the first, from A. Murray and wife to the Falls of Neuse Manufacturing Company; and the second, from W. J. Murray and wife to the same company. The defendant objected to the introduction of both, on the ground that the descriptive clauses were too vague to admit of explanation by extrinsic evidence.

The descriptions were, respectively, in the following words:

First. "A tract of land in Alamance County, State of North Carolina, adjoining the lands of John Staley, David Staley, and Joseph McAdams, known as the Sellars tract, subject to whatever rights the widow (510) Sellars may have in it, containing 140 acres, more or less." Second. Seven tracts, or interest in seven tracts, conveyed by one deed, as follows: "The following tracts of land in Alamance County, State of North Carolina, their dwelling-house and the land on which thesame is situated, containing about 8 acres, more or less, adjoining Big Falls Water-Power lands and the lands heretofore owned by Albert Murray,being the place on which we now reside. For a more specific descriptionreference is made to our title papers.

"Also, our undivided half of the following lands, situate in said county of Alamance, to wit:

"1. The John Dixon tract, containing about 130 acres, more or less, adjoining the lands of Austin Isley, Jesse Rippey, Jesse Grant and others.

"2. The Long tract, containing about 110 acres, more or less, situated on the east side of Haw River, adjoining the lands of W. T. Wilkins, Mrs. Kirkpatrick and others.

"3. The Sellars tract, containing about 116 acres, more or less, situated on the southwest side of Haw River, adjoining the lands of Joseph McAdams, John Staley and others.

"4. The Staley tract, containing 27 acres, more or less, adjoining the lands of Mebane Morrow, Joseph McAdams and others.

"Tracts Nos. 3 and 4, above named, are subject to the dower rights, if any, which the widow, Nancy Sellars, may have therein.

"5. A tract containing about 6 acres, called Morrow tract, for which anexchange was made with Mebane Morrow.

"6. And also their interest, being a half interest, in all theirlands lying between Haw River and Stony Creek, up to the line of J. H. and W. E. Holt Co., including the Big Falls Water-Power and Mills, and all the rights, privileges, and appurtenances thereto belonging,which lands were heretofore owned by W. J. and A. Murray as (511) partners and tenants in common, and also all of the rights, privileges, and interests of said W. J. Murray, whether as copartners or tenants in common or in his own right, in and to the bed of Haw River and Stony Creek, or either of them, and the waters thereof. For a more particular description of tracts 1, 2, 3, 4, 5, and 6 reference is hereby made to the title papers therefor to W. J. Murray and W. J. and A. Murray."

The descriptive words, "known as the Sellars tract" (omitting as surplusage the residue of the description), pointed with sufficient certainty to possible proof of the existence and location of a body of land which, according to general reputation, was so designated, and rendered parol proof competent to fit it to the thing. Henly v. Wilson, 81 N.C. 405;Smith v. Low, 24 N.C. 457. In the case last cited, Chief JusticeRuffin says that, by the description, "Mount Vernon, the late residence of General Washington," the place referred to is better known than by setting forth the metes and bounds of the tract on which his dwelling-house was located.

A reference to the title papers of the grantors in the other deed from William J. Murray and wife is equivalent to incorporating the full descriptions set forth in the papers referred to in the former deed, and, of course, made the conveyance mentioned, together with competent evidence to locate the land aliened by them, competent. Everitt v. Thomas,23 N.C. 252. It is unnecessary, in order to settle the question of law whether this part of the deed is void for vagueness, that we should go further and pass upon the sufficiency of the additional designations, as "their dwelling-house and the land on which the same is situated," etc., or "the place on which we now reside." Carson v. Ray, 52 N.C. 610;Murdock v. Anderson, 57 N.C. 77.

The descriptive words, "the John Dixon tract," "the Long (512)tract," "the Sellars tract," and "the Staley tract," used in the second deed, were sufficient to point to proof aliunde that these distinct bodies of land were generally known by such designations. Smith v.Low, supra; Scull v. Pruden, 92 N.C. 168; Henly v. Wilson, supra. Evidence was unquestionably admissible, not only to show the location of the tract "called the Morrow tract," but to identify the boundaries by a deed of exchange from Mebane Morrow and to consider such metes and bounds as if they were incorporated into the descriptive clause of the deed from W. J. Murray and wife. Henly v. Wilson, supra; Everitt v. Thomas, supra.

The description numbered 6 is not too indefinite, because it was competent for the plaintiff, under its terms, to identify the land as lyingbetween Haw River and Stony Creek, and extending up to the lines of J. H. and W. E. Holt Co., so as to include the Big Falls Water-Power. Horton v.Cook, 54 N.C. 270.

The further designation of the land as that "owned by W. J. Murray and A. Murray as partners and tenants in common," together with the reference to title papers, which follows and applies to all of the tracts numbered from 1 to 6, opens the door for the admission of testimony to identify the land lying between those rivers by written evidences tracing title to the two Murrays as tenants in common. It was likewise competent to show title as tenants in common, or sole seizin for the beds of Haw River and Stony Creek in W. J. Murray, all title and interest in these localities proven to have been in him having passed, by the deed, to the Falls of Neuse Company.

The judge states that the plaintiff offered the testimony of several witnesses tending to prove his contention as to the location of the land claimed by him, and as to the alleged trespass; but this evidence is not set forth in detail in the statement. The defendant did not except, in the court below, to the sufficiency of the whole of the testimony to go to the jury as tending to fit any or all of the descriptions to the land (513) claimed by the plaintiff, and to show it to be identical with that described in the complaint. We cannot, therefore, consider the exception raised here, for the first time, that the evidence was not, in fact, sufficient to locate the land. With notice of such an assignment of error, we assume that the judge would have sent up much additional testimony bearing upon this question. McKinnon v. Morrison, 104 N.C. 357.

We find in the brief of the defendant some statements in conflict with those in the case on appeal, and much addenda to the record, which, of course, we cannot consider. The case on appeal states that the defendant purposed to offer a deed from Holt to Jeffries, dated in 1887, to locate his southwest corner, and not, as contended by defendant, simply to contradict Trollinger. It is competent to establish the lines and courses of a tract of land by showing where the surveyor actually ran when making the boundaries at the instance of the parties to the conveyance, and with a view to its execution, as it is to locate a patent by showing marks, corresponding in age and course with the calls of the deed, upon a line of trees. Ingram v. Colson, 14 N.C. 520; Topping v. Saddler, 50 N.C. 357;Roberts v. Preston, 100 N.C. 248. But the junior deed from Holt to Jeffries, dated in 1887, was not competent as evidence to locate the corner of the deed previously made to the plaintiff. Sasser v. Herring,14 N.C. 341. The objection of the plaintiff is based upon the ground of incompetency as evidence of the location of the corner of an older deed. It is too late to set up other grounds of exception in this Court.

There is no error in either of the rulings of the court excepted to, and the judgment must be

Affirmed.

Cited: Hardy v. Galloway, 111 N.C. 524; Johnston v. Case, 131 N.C. 498;Hill v. Dalton, 136 N.C. 341; Grimes v. Bryan, 149 N.C. 250; Boardof Education v. Remick, 160 N.C. 569; Byrd v. Sexton, 161 N.C. 572;Pate v. Lumber Co., 165 N.C. 187; Elizabeth City v. Commander, 176 N.C. 30;Williams v. Bailey, 178 N.C. 632.

(514)