Baldwin v. Hinton

• Decision Date: 23 November 1955
• Docket Number: No. 531,531
• Citation: 90 S.E.2d 316,243 N.C. 113
• Parties: Clara Mae BALDWIN, Lucille Baldwin and Willie James Baldwin, and Clara Mae Baldwin, Next Friend of Mary Frances Baldwin Moten and husband, J. W. Moten, and Leola Baldwin, Minors, v. G. C. HINTON and wife, Eunice W. Hinton.
• Court: North Carolina Supreme Court

Page 316

90 S.E.2d 316

243 N.C. 113

Clara Mae BALDWIN, Lucille Baldwin and Willie James Baldwin and Clara Mae Baldwin, Next Friend of Mary Frances Baldwin Moten and husband, J. W. Moten and Leola Baldwin, Minors, v. G. C. HINTON and wife, Eunice W. Hinton.

No. 531

Supreme Court of North Carolina.

Nov. 23, 1955

A. M. Noble, Smithfield, for defendants-appellans.

Lyon & Lyon, Smithfield, for plaintiffs-appellees.

BOBBITT, Justice.

While nominally a cause of action to remove a cloud from plaintiffs' title, this is essentially an action in ejectment. True, possession by plaintiffs is not a prerequisite to an action brought under G.S. § 41-10. Satterwhite v. Gallagher, 173 N.C. 525, 92 S.E. 369; Vick v. Winslow, 209 N.C. 540, 183 S.E. 750. Nor is it necessary in such an action to allege or establish either trespass or unlawful possession by defendants. But where, as here, defendants are in actual possession, and plaintiffs seek to recover possession, the action in essence is in ejectment. Hines v. Moye, 125 N.C. 8, 34 S.E. 103.

The parties stipulated that, upon the death of Claudia Watson on 3 March, 1938, the children of Millie Stancil and of Loumenda Richardson became the owners in fee simple of the 19 acres in the center of the Atlas Richardson tract of 54 acres, more or less. Accepting this as established, the proper construction of the Atlas Richardson will (which is not set out in full in the record) need not be considered; nor do we need to consider the parol division of 1922.

The owners of the 19 acres in the center of the Atlas Richardson tract of 54 acres, more or less, made a parol partition thereof in 1949. A parol partition is voidable, not void. Collier v. Halifax Paper Corp., 172 N.C. 74, 89 S.E. 1006; Thomas v. Conyers, 198 N.C. 229, 151 S.E. 270. As of now, the parties to said parol partition of 1949, their heirs or assigns, could have it declared void and be restored to their original status as tenants in common. Duckett v. Harrison, 235 N.C. 145, 69 S.E.2d 176. They have not done so.

It makes no difference for present purposes whether plaintiffs be treated as owners of the 5 acres identified and staked out as the Claudia Mary Etha Baldwin land in said parol partition of 1949 or as owners of an undivided interest in the 19 acres in the center of the Atlas Richardson land. This may become material upon the accounting for rents and profits from May, 1954. In an action for trespass, a tenant in common may recover judgment only for his proportionate part of the damages; but in an action in ejectment, one tenant in common may recover the entire tract against a third party. Winborne v. Elizabeth City Lumber Co., 130 N.C. 32, 40 S.E. 825; Lance v. Cogdill, 238 N.C. 500, 78 S.E.2d 319, and cases cited therein.

Both plaintiffs and defendants claim under Claudia Mary Etha Baldwin, plaintiffs claiming by inheritance and defendants claiming under deed pursuant to foreclosure of the deed of trust executed by Claudia Mary Etha Baldwin to A. M. Noble, Trustee. Thus, the vital question is whether the description in the deed of trust and in the trustee's deed is void for uncertainty.

Defendants' assignment of error, based on Judge Sharp's refusal to treat Judge Bone's order as having established the sufficiency of the description, is wholly without merit. Judge Bone made no such determination. He simply denied plaintiffs' motion for judgment on the pleadings. Plaintiffs excepted, but did not appeal. They were well advised. It is well established that an appeal does not lie from a denial of a motion for judgment on the pleadings. Garrett v. Rose, 236 N.C. 299, 72 S.E.2d 843; Howland v. Stitzer, 240 N.C. 689, 84 S.E.2d 167, and cases cited therein. Furthermore, the motion for judgment on the pleadings related to the original pleadings. Plaintiffs' allegation of ownership was denied. This raised an issue of fact, to be determined by jury trial or other approved procedure. Wells v. Clayton, 236 N.C. 102, 72 S.E.2d 16. Aside from all this, the controversy under the amended pleadings was an entirely different case, involving different land.

The principles applicable in determining the sufficiency of the description are well established. Hodges v. Stewart, 218 N.C. 290, 10 S.E.2d 723, and cases cited therein. 'The description must identify the land, or it must refer to something that will identify it with certainty. Otherwise the description is void for uncertainty.' Higgins, J., in Deans v. Deans, 241 N.C. 1, 84 S.E.2d 321, 325. Parol evidence is admissible to fit the description to the land. G.S. § 8-39. '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.' Winborne, J., in North Carolina Self Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, 892.

Here the description calls for a tract of land in Selma Township, in the settlement called 'Coonsboro' about three miles north of Selma, N. C., consisting of 10.65 acres, more or less. This fits equally well any tract of the indicated acreage in 'Coonsboro' about three miles north of Selma. It refers to nothing from which the land can be identified with certainty. The additional sentence, 'See Will Book 6, page 5, of the Atlas Richardson Will, and Item 7 of...