Bailey v. Hayman

• Decision Date: 18 September 1940
• Docket Number: 31.
• Citation: 10 S.E.2d 667,218 N.C. 175
• Parties: BAILEY et al. v. HAYMAN.
• Court: North Carolina Supreme Court

10 S.E.2d 667

218 N.C. 175

BAILEY et al. v. HAYMAN.

No. 31.

Supreme Court of North Carolina

September 18, 1940

Martin Kellogg, Jr., of Manteo, R. B. Bridgers, of Norfolk, Va., and Worth & Horner, of Elizabeth City, for plaintiffs appellants.

J H. Leroy and McMullan & McMullan, all of Elizabeth City for defendant, appellee.

STACY Chief Justice.

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...