Barker v. Southern Railway Co. , 125 N.C. 596 ( 1899 )

Douglas, J.

This is an action in the nature of ejectment. On April 1, 1879, the plaintiff executed -to the Spartanburg and Asheville Railroad Company, whose title the defendant now owns, a deed with the following description: “Adjoining the lands of T. Gr. Barker (the plaintiff),'beginning at a stake on the east side of the railroad track and on, said track, and runs east 20 south 270 feet to a stake; thence north 2 west 240 feet to a stake; thence west 20 north 270 feet to a stake in the railroad track; thence south 2 east with the railroad track 240 feet to the beginning, containing 1-J acres * * * for its use as a stockyard, and other railroad purposes.”

The defendant introduced testimony tending to prove that at the time of the execution of said deed the plaintiff had a surveyor to run out and locate the lot in controversy, and put the Asheville and Spartanburg Railroad Company in actual possession thereof; that the said company built a fence around said lot, the line of which fence can still be seen; and that the said company and its successor in title, the defendant, have remained in actual and continuous possession of said lot to the present time. The plaintiff now seeks to recover said lot, ''on the ground that the descriptive words in the deed are insufficient to convey title as being- too vague and indefinite to admit of location.

This contention of the plaintiff as to the insufficiency of the description appears to be correct. There is not a single corner fixed by anything more definite than a stake, "which as far back as Massey v. Belisle, 24 N. C., 170, 178, was held insufficient as designating “imaginary points.” It is true the stake is said to be on the east line of the railroad, but that is extremely indefinite, as the railroad is of great length. The lot in question is again said to adjoin the lands of the plaintiff, which we presume means simply the land from which it was cut off, but on which side it adjoins does not appear. In other words, from the description in the deed the lot attempted to be conveyed might be shifted up and down the railroad for an indefinite distance. We, therefore, think the description is not sufficient. Massey v. Belisle, supra; Mann v. Taylor, 49 N. C., 272; Archibald v. Davis, 50 N. C., 322; Hinckey v. Nichols, 72 N. C., 66. There are a large number of other cases holding insufficiency of description; but the above are cited as directly based upon a description calling for stakes alone.

It is urged in behalf of the defendant, that, while the description in the deed is too vague to admit of identification by parol evidence, the deed itself purports to convey something, and therefore may be color of title. This contention is opposed equally to reason and authority. A deed to be valid on its face requires not only a grantor and a grantee, but a thing granted. If the description is too indefinite to convey anything, then the paper on Us face lacks, one of the essential elements of a conveyance. A deed can not be color of title to land in general, but must attach to some particular tract. Otherwise we would be brought to the absurd conclusion that a man holding a deed purporting to convey a hundred acres of land by stakes and distances only, might shift his color of title to any part of the county by’ merely “pulling up stakes” and squatting upon any land he might fancy. This Court has repeatedly held that “a deed is color of title only for the land designated and described in it.” Davidson v. Arledge, 88 N. C., 326; Smith v. Fite, 92 N. C., 319; King v. Wells, 94 N. C., 344; Dickens v. Barnes, 79 N. C., 490. In this last case, Faieclotix, J., speaking for the Court, says: “If the claim of the party be invalid on its face, or if the deed under which he claims be void, or insufficient in form to pass title, or the description therein be fatally defective, in such cases the possession is not adverse under our statute, because the party acquiring possession must be presumed to know the law and to see that in such cases there is no color of title.”

While we have come to the conclusion -that the description in itself is too vague to be located by outside evidence, it appears from the testimony that the land was in fact located by the plaintiff himself, wrho is thus estopped from denying his own act. Having had the lot surveyed, and placed the defendant in actual possession thereof under designated lines and marked corners, he is now bound by his own admission, and can not be permitted to controvert the legal effect of his own conduct to the prejudice of another, especially after such long acquiescence. There is a clear distinction between cases where the parties themselves have definitely located the land and where it is merely sought to locate it by outside testimony not in the nature of admissions. We think this distinction is recognized inferentially in Massey v. Belisle, supra, where the Court says, on p. 177: "The stakes may be real boundaries when so intended by the parties, but it is a settled rule of construction with us that when they axe mentioned in a deed simply, or with no other description than that of course and distan.ce, they are intended by the parties, and so understood, to designate imaginary points.”

If the facts are true as testified upon the trial, we think the plaintiff is clearly estopped from denying his location of the land, and therefore can not recover. Eor error in the charge of the Court a new trial must be ordered.

New trial.