Barringer v. Weathington

• Decision Date: 14 July 1971
• Docket Number: No. 7112SC327,7112SC327
• Citation: 11 N.C.App. 618,182 S.E.2d 239
• Court: North Carolina Court of Appeals
• Parties: John A. BARRINGER v. L. H. WEATHINGTON and Billie Weathington.

Page 239

182 S.E.2d 239

11 N.C.App. 618

John A. BARRINGER v. L. H. WEATHINGTON and Billie Weathington.

No. 7112SC327.

Court of Appeals of North Carolina.

July 14, 1971.

MacRae, Cobb, MacRae & Henley, by James C. MacRae, Rayetteville, for plaintiff appellant.

Williford, Person & Canady, by N. H. Person, fayetteville, for defendant appellee.

CAMPBELL, Judge.

Plaintiff's first assignment of error is directed at the refusal of the trial judge to admit plaintiff's Exhibit No. 11 into evidence. Plaintiff's Exhibit No. 11 purports to be a deed from one Hugh Simpson to Sarah J. Hales and is essential if plaintiff is to prove a record chain of title back to the State. The purported deed attempts to convey 10 tracts of land to Sarah J. Hales, the eighth tract being the one pertinent to this action and described as follows: 'containing 40 acres entered by Hugh Simpson.'

A deed or contract to convey land must identify the land or furnish the means of identifying it with certainty by reference to something extrinsic. New Home Bldg. Supply Co. v. Nations, 259 N.C. 681, 131 S.E.2d 425 (1963). The only requisite as to the certainty of the thing described is that there be no patent ambiguity in the description. Norton v. Smith, 179 N.C. 553, 103 S.E. 14 (1920). There is a patent ambiguity when the terms of the writing leave the subject of the conveyance, the land, in a state of absolute uncertainty, and refer to nothing extrinsic by which it might possibly be identified With certainty. Lane v. Coe, 262 N.C. 8, 136 S.E.2d 269 (1964). When the language is patently ambiguous, parol evidence is not admissible to aid the description. Lane v. Coe, Supra.

Here, the description, 'containing 40 acres entered by Hugh Simpson' neither identifies the land in itself nor does it furnish the means of identifying With certainty by reference to something extrinsic. Plaintiff contends that the words 'entered by Hugh Simpson' indicate that Hugh Simpson acquired the land by way of a grant from the State and that the land conveyed by the deed is capable of description with certainty by evidence showing that Hugh Simpson received only one forty-acre grant from the State. We disagree. First, the testimony that plaintiff would have given to the jury to show only one forty-acre grant by the State to Hugh Simpson was itself insufficient to accomplish that purpose. In his testimony, taken out of the presence of the jury, plaintiff stated that he found fifteen or twenty grants in the office of the Secretary of State to Hugh Simpson. He also stated: '* * * I found tracts, fifty acres and thirty-eight, or very similar in size.' Plaintiff testified that he checked for grants to Hugh Simpson in the period of time from approximately 1719 to 1850. As the deed from Hugh Simpson to Sarah J. Hales was made in 1857, it appears that there was a seven-year period during which Hugh Simpson could have received further grants from the State. Plaintiff did not know the initials of Hugh Simpson and did not check grants to Simpsons with other initials. Plaintiff's testimony was not sufficient to show that Hugh Simpson received only one forty-acre grant from the State.

But even if plaintiff could have shown that Hugh Simpson received only one forty-acre grant from the State, this would not have been sufficient to describe the land with certainty. Hugh Simpson received many other grants of varying sizes. The description given in the purported deed does not preclude the possibility that the 40 acres Hugh Simpson attempted to convey to Sarah J. Hales was a portion of a larger grant entered by Hugh Simpson. As the purported deed was patently ambiguous, the trial judge properly refused to admit it into evidence.

Plaintiff next assigns as error the failure of the court to grant a continuance when one of plaintiff's witnesses was unavailable due to illness. But the record does not reveal a motion on the part of plaintiff for a continuance. The record does reveal the following:

'Court: (Referring to the sick witness) * * * Now, if his testimony is not going to be available this week, what do you want to do, Mr. Paderick?

Attorney Paderick: I would have to move for a continuance until I could locate someone else that could testify.

Court: Do you consider his testimony vital to making out the case?

Attorney Paderick: Yes, unless I can find someone else to testify.

Court: I will allow you time to do so. How long od you think it will take to find such a person? * * *'

Plaintiff's attorney never actually moved for a continuance and did not inform the court of the length of time needed to find another witness although the court indicated a willingness to grant additional time. Even had a motion for a continuance been made, the granting or refusing of such a motion is in the sound discretion of the trial judge and his decision will not be disturbed absent a clear abuse of discretion. Whaley v. Rhodes, 10 N.C.App. 109, 177 S.E.2d 735 (1970). No abuse of discretion is shown here.

Plaintiff's third assignment of error is directed at the court's refusal to allow one of plaintiff's witnesses to testify as to who had possession of the Mary J. Smith forty-acre tract of land. The record does not reveal what the witness' answer would have been. An exception to the exclusion of evidence will not be considered when the record fails to disclose what the excluded evidence would have been. Stith v. Perdue, 7 N.C.App. 314, 172 S.E.2d 246 (1970), cert. denied, 276 N.C. 498 (1970).

Plaintiff's last assignments of error are directed at the granting of defendants' motion for a directed verdict and at the signing and entry of judgment. On a motion for a directed verdict at the close of plaintiff's evidence, the trial judge must determine...