Blow v. Vaughan

• Decision Date: 24 February 1890
• Citation: 10 S.E. 891,105 N.C. 198
• Parties: BLOW et al. v. VAUGHAN et al.
• Court: North Carolina Supreme Court

10 S.E. 891

105 N.C. 198

BLOW et al. v. VAUGHAN et al.

Supreme Court of North Carolina

February 24, 1890

Syllabus by the court.

1. Where the description in a deed offered to show title was "fifty acres of land lying in the county of Hertford and bounded as follows: By the land of John P. Livermon, John H. Livermon, and Isaac J. Snipes,"--held, that the language left open for explanation by parol proof only the question whether there was a tract of land in Hertford county containing 50 acres, and so bounded by the lands of the three persons named as to separate it from other tracts, and indicate its limits with reasonable certainty.

2. In the complaint filed the land was described as "adjoining the lands of John P. Livermon, John H. Livermon, and Isaac J Snipes, and containing fifty acres." Held, that the description in the complaint was too vague to be explained by parol testimony, and if the transcript was correctly copied in the complaint the action might have been dismissed for failure to state facts sufficient to constitute a cause of action, or after the evidence was heard the jury might have been told that there was a fatal variance between the allegation and the proof.

3. A deed that contains no descriptive word or phrase sufficient with the aid of competent extrinsic testimony, to identify and determine all of its boundary lines, will not pass any estate to the bargainee therein named.

4. The test of the admissibility of evidence dehors the deed is involved in the question whether it tends to so explain some descriptive word or expression contained in it as to show that such phraseology, otherwise of doubtful import, contains in itself, with such explanation, an identification of the land conveyed. The rule is founded on the maxim, id certum est quod certum reddi potest.

5. The rule that the descriptive words in the deed must, with the aid of the evidence alinude to which they point, identify the boundaries of the land conveyed, has been sanctioned by the courts, not only upon the idea that there must be a certain subject-matter, but because its observance is essential to proper enforcement of the statute of frauds.

6. The sufficiency of descriptions in lines were made to depend in some instances upon the construction given by the courts to the statute, (Rev. Code,§ 16, c. 62,) prescribing what they should contain; and hence the court held descriptions in lines sufficiently definite that have been declared too vague in deeds of conveyance.

7. Proof in this case that a tract of land containing 125 acres and belonging originally to John W. Blow, from whom the ancestor of plaintiffs claimed, was completely surrounded and bounded by the lands of three persons named in the deed, will not identify the land which the deed purports to convey because there is no testimony to show in what part of it the 50 acres are to be laid off. Hinton v. Roach, 95 N.C. 106, overruled.

This was a civil action brought to recover possession of and establish title to a tract of land, tried at the fall term, 1889, of the superior court of Hertford county; before BROWN, Judge.

The land in controversy was described in the complaint as follows: "Adjoining the lands of John P. Livermon, John H. Livermon, and Isaac J. Snipes, and containing fifty acres." In the deed offered in evidence to show title derived from John W. Blow, the common source, in Henry B. Blow, under whom plaintiffs claim by descent, the land is described as "fifty acres of land lying in the county of Hertford, and bounded as follows: By the lands of John P. Livermon, John H. Livermon, and Isaac J. Snipes." Plaintiffs introduced the following evidence for the purpose of showing a common source of title: Deed, Winborne, trustee, to defendant Wise, dated January 10, 1887, and deed, John W. Blow to said Winborne, trustee, dated January 8, 1885. Admitted that both deeds cover the land in controversy in this action. Plaintiffs then offered deed, John W. Blow and wife to Henry B. Blow, Book A, p. 568, probated February 2, 1870. A true copy of said deed is hereto attached. J. H. Livermon testified: "The land described in deed from John W. Blow to H. B. Blow is the same land described in the complaint. Defendant Wise is in possession of it. Annual rent, worth $40 per year. Vaughan is a tenant of Wise. H.B. Blow is dead; died before the suit brought, and the plaintiffs [naming them] are the brothers and sisters of H.B. Blow. The fifty acres described in the complaint lay in a corner, and is called the 'Manly Tract.' It is not a separate piece of land. John W. Blow only owned two tracts, called the 'Home Place' and the 'Snipes Tract,' said to be 125 acres, more or less. John W. Blow did not have a tract of land bounded by John P. and J.H. Livermon and Isaac J. Snipes, that I know of. I don't know whether it would touch all of them or not. Don't know whether this fifty acres touched Isaac J. Snipes' or not. John W. Blow's Snipes tract was bounded by all said parties. There was no separate fifty-acre tract. The fifty acres described in the complaint is a part of the Snipes tract, Maj. Wise being in possession thereof. Henry Blow was in possession of the land described in his deed till he was crippled; then his brother worked the land for him until Henry died. This tract is called the 'Manly Tract'. It is part of the Snipes tract." Plaintiffs rested. Defendants offered the following evidence: E.T. Snipes testified: "In 1869, J.W. Blow owned the home place and the Snipes land; did not own or possess any other. The Snipes tract is bounded in part by J.P. and J.H. Livermon and I.J. Snipes.

The fifty acres in controversy, I think, is part of the Snipes land. The said boundaries do not especially fit or designate any particular part of the Snipes tract. The lands that Henry Blow lived on, and his brother Gus, is part of the Snipes tract. There is a portion of the Snipes tract that is not bounded by John P. and John H. Livermon, or Isaac J. Snipes. Henry Blow's house is in north-west corner of Snipes tract. The land described in the deed to Winborne, trustee, calls for and covers the Snipes tract, and the land Henry Blow lived on and got from his father, John W. Blow. The deed to Wise from Winborne, trustee, embraces same land. The 'Manly Tract' is an old name for the land, but no particular tract is called 'Manly Land'. The residences were known by certain names. Years ago the whole was embraced in one tract, called 'Snipes Tract'. Isaac Snipes was in possession up to the close of the war. He then sold to John W. Blow, and he went into possession of the Snipes land, including fifty acres in controversy, and I was in possession a short while, and then John W. Blow again, and about three years ago defendant Wise went into possession. The Snipes tract was composed of several tracts, one of which was called the 'Manly Tract.' The fifty acres called for in the deed to Henry Blow could not be cut off so as to be bounded by John P. and J.H. Livermon and Isaac Snipes. Some of Henry Blow's brothers or sisters lived continuously on the fifty acres up to the sale by Winborne, trustee." Major Wise, one of defendants, examined: "I found John W. Blow in possession of the eastern portion of the farm; the part in dispute being vacant. I put one Long in possession John Blow told me he rented the land in dispute from his father, and that he built the house." Isaac Snipes testified for plaintiffs: "I owned Snipes tract. The piece in dispute was called the 'Manly Field'. Don't know how much there was of it, or its boundaries. It was part of Snipes tract. I conveyed the whole to John W. Blow. The Manly field touches John P. Livermon and my land, but don't know whether it touches John H. Livermon. Known by that name." B.F. Livermon testified for plaintiffs: "Henry Blow worked up to the ditch after his father made a deed to him. He worked the part called the 'Manly Field' up to his death. I helped him to build a house on it. In 1870 the land in dispute adjoined John H. and John P. Livermon and Isaac J. Snipes. Am certain the fifty acres conveyed to Henry Blow by his father adjoined all three of those persons, and the fifty acres can be laid off so as to adjoin all three. John W. Blow knew where Henry cultivated up to, and claimed. Have seen him there. He made no objection, that I know of, to Henry's cultivating up to the ditch. The land that Henry went into possession of after he got deed from his father touched the two Livermons and the Isaac J. Snipes land. I mean that it adjoined the land Isaac J. Snipes sold to Reed. Henry Blow went into possession of the land described in his deed shortly after it was made, and he and his brothers and sisters have been in possession and cultivated it, ever since, up to two or three years ago."

The defendants, in addition to other instructions asked for requested the court to charge the jury that if they believe the whole of the evidence the plaintiffs could not recover. The court instructed the jury as follows: "That the deed from John W. Blow to Henry B. Blow was anterior to those under which defendants claimed, and the plaintiffs' right to a favorable response to the issues submitted depended upon the sufficiency of that deed; that the description in said deed was not so indefinite and uncertain as to render it void, but the court had permitted the introduction of parol testimony to locate and identify the land, and fit the description to the land claimed in the complaint, if that could be done; and that the burden of proof was upon the plaintiffs to satisfy the jury, by a preponderance of evidence, that the land described in the complaint is the same described in the deed to Henry Blow from John W. Blow, and if the jury are so satisfied they should find for the...