Linder v. Horne

74 S.E.2d 227 (1953) 237 N.C. 129

LINDER et al.
v.
HORNE et al.

No. 677.

Supreme Court of North Carolina.

January 30, 1953.

Thomas H. Williams, J. O. Tally, Jr., and Tally, Tally & Brewer, Fayetteville, for plaintiffs appellees.

G. H. Allran and Robert H. Dye, Fayetteville, for defendants appellants.

WINBORNE, Justice.

Upon facts found, and approved by the trial court, the location of the true dividing line between the lot of land of petitioners and the lot of land of defendants depends upon the proper location of the lot of land of defendants as described in the deed to them from J. Warren Pate and wife.

In this connection it is settled law in this State that, in a proceeding to establish a boundary line, which is in dispute, what constitutes the dividing line is a question of law for the court, but a controversy as to where the line is must be settled by a jury under correct instructions based upon competent evidence. Clegg v. Canady, 217 N.C. 433, 8 S.E.2d 246; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440, and cases cited. See also Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501.

If the controversy as to location of the dividing line be referred, the facts in respect thereto must be found by the referee in accordance with law and upon competent evidence.

Moreover, decisions of this Court generally recognize the principle that a deed conveying land within the meaning of the statute of frauds must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The office of description is to furnish, and is sufficient when it does furnish means of identifying the land intended to be conveyed. Where the language used is patently ambiguous, parol evidence is not admissible to aid the description. But 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. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. See North Carolina Self Help Corporation v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, where the authorities are cited. See also Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Plemmons v. Cutshall, supra.

In the light of this principle applied to the deed to defendants it is seen: (1) That the description begins "at the intersection of the southern margin of the Morganton Road and the eastern margin of Grace Street (now Pinecrest Drive)," the location of which is in and of itself indefinite and uncertain; (2) That the terminus of the first call is a stake, an uncertain designation; (3) That the terminus of the second call is "a stake in the eastern line of the W. M. Walker subdivision shown on plat recorded in Book S No. 7, page 108, Cumberland County Registry". This is certain only to the extent of the line called for. It is uncertain as to location of the stake in the line; (4) That the third call is "thence with said line north 13 deg. west 142.79 to the southern margin of the Morganton Road". This call has in and of itself an uncertain terminus. However, the findings of fact and the accompanying plat of the W. M. Walker subdivision disclose that by adverting to the recorded plat of the W. M. Walker subdivision, and running from the marked southeast corner of the Walker property the southern margin of the Morganton Road as well as the eastern line of Grace Street, as same are shown on the plat, can be located. Therefore, by running the eastern line of the subdivision, the terminus of the third call, of the description in the deed to defendants, can be determined and fixed. Then by reversing the calls from this corner, the beginning corner can be ascertained, and made certain; and then the lines run from it in accordance with the calls. "The general rule as to this is that in order to locate a boundary, the lines should be run with the calls in the regular order from a known beginning, and the test of reversing in the progress of the survey should be resorted to only when the terminus of a call cannot be ascertained by running forward, but can be fixed with certainty by running reversely the next succeeding line." Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673, 677, and cases cited. See also Plemmons v. Cutshall, supra.

Therefore, it seems clear that the intent of the grantors in the deed to defendants was to invoke the aid of the plat of the W. M. Walker subdivision to make certain a description, which without it would be uncertain and void.

Hence, the facts found and the conclusions of law made by the referee, and approved by the court, lead to the decision that the true dividing line in question is properly located. Moreover, the fact that the rights of way of the Morganton Road, and of Grace Street have been extended to greater widths than as originally laid out, has no effect upon the location of the boundaries of the fee in lands adjacent thereto. The case of Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603, relied upon by defendants is distinguishable in factual situation.

All assignments of error have been duly considered, and error is not made to appear.

Affirmed.

PARKER, J., took no part in the consideration or decision of this case.