Overton v. Boyce

221 S.E.2d 347 (1976) 289 N.C. 291

Penelope Badham OVERTON, and Alexander Badham (Original Plaintiffs), Robert Bembry, Administrator of Penelope Badham Overton and Robert Bembry, Administrator of Alexander Badham
v.
A. C. BOYCE, sometimes known as Lonnie Boyce (Original Defendant), Celia U. Boyce, widow of A. C. Boyce, et al.

No. 104

Supreme Court of North Carolina.

January 29, 1976.

Richard E. Powell, Greenville, and Samuel S. Mitchell, Raleigh, for plaintiffs.

Pritchett, Cooke & Burch by J. A. Pritchett, W. W. Pritchett, Jr., and W. L. Cooke, Windsor, for defendants.

LAKE, Justice.

A deed purporting to convey an interest in land is void unless it contains a description of the land sufficient to identify it or refers to something extrinsic by which the land may be identified with certainty. State v. Brooks, 279 N.C. 45, 181 S.E.2d 553; Carlton v. Anderson, 276 N.C. 564, 173 S.E.2d 783; Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269; Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321; Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593; Strong, N.C. Index 2d, Boundaries, § 10. When the deed itself, including its references to extrinsic things, describes with certainty the property intended to be conveyed, parol evidence is admissible to fit the description in the deed to the land. G.S. 8-39; State v. Brooks, supra. Parol evidence is not admissible, however, to enlarge the scope of the description in the deed. State v. Brooks, supra; Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889.

When it is apparent upon the face of the deed, itself, that there is uncertainty as to the land intended to be conveyed and the deed, itself, refers to nothing extrinsic by which such uncertainty can be resolved, the description is said to be patently ambiguous. Carlton v. Anderson, supra; Strong, N.C. Index 2d, Boundaries, § 10. As Justice Barnhill, later Chief Justice, speaking for the Court, said in Thompson v. Umberger, 221 N.C. 178, 19 S.E.2d 484, "[A] patent ambiguity is such an uncertainty appearing on the face of the instrument that the court, reading the language in the light of all the facts and circumstances referred to in the instrument, is unable to derive therefrom the intention of the parties as to what land was to be conveyed." (Emphasis added.) Parol evidence may not be introduced to remove a patent ambiguity since to do so would not be a use of such evidence to fit the description to the land but a use of such evidence to create a description by adding to the words of the instrument. Cummings v. Dosam, Inc., 273 N.C. 28, 159 S.E.2d 513; McDaris v. "T" Corp., 265 N.C. 298, 144 S.E.2d 59; Lane v. Coe, supra; Thompson v. Umberger, supra.

The description in the deed under which the plaintiffs claim title is patently ambiguous. It refers to nothing extrinsic to which one may turn in order to identify with certainty the land intended to be conveyed. All that the deed tells us about the land is that it is "pocosin land," i. e., swamp land, in Chowan County, it adjoins the lands of the late Henderson Luton and contains, by estimation, 319 acres. It is a matter of common knowledge that there are numerous, extensive tracts of pocosin land in Chowan County. The deed leaves the reader of it in doubt as to each of the following things: (1) The exact area of the tract intended to be conveyed, (2) whether the tract intended to be conveyed is all or only part of a single pocosin area, (3) assuming the "Henderson Luton" tract can be located with certainty, on which side of it lies the land here intended to be conveyed, and (4) the length of the common boundary between the "Henderson Luton" tract and the land here intended to be conveyed. Furthermore, the record shows, and the Superior Court found, there were recorded in the office of the Register of Deeds of Chowan County three separate deeds conveying large tracts of land in Chowan County to Henderson Luton and another deed conveying a smaller tract to Henderson Luton and another. The descriptions of the three larger tracts conveyed to Henderson Luton alone show that each of these tracts had one or more boundary lines running along or through a swamp or along the Chowan River.

Since the description in the deed under which the plaintiffs claim is patently ambiguous, the deed is void and cannot be the basis for a valid claim of title in the plaintiffs to the land now claimed by them. It follows that the summary judgment in favor of the defendants was properly entered by the Superior Court. The judgment of the Court of Appeals, is, therefore, reversed and the matter is hereby remanded to the Court of Appeals for the entry by it of a judgment affirming the judgment of the Superior Court.

Reversed.

COPELAND, J., did not participate in the consideration or decision of this case.