Brown v. Rickard

• Decision Date: 23 December 1890
• Citation: 107 N.C. 639,12 S.E. 570
• Court: North Carolina Supreme Court
• Parties: Brown et al. v. Rickard.

12 S.E. 570

107 N.C. 639

Brown et al.

v.Rickard.

Supreme Court of North Carolina.

Dec. 23, 1890.

Public Lands—Exception in Grant—Validity.

1. "Where in a grant from the state the land is described by metes and bounds, and as "containing in the whole 35, 280 acres, 5, 000 acres of which, being previously entered by citizens, is hereby reserved, " the reservation is valid, it appearing that the excepted tract had been previously entered and surveyed.

2. A conveyance of the larger tract by the owner of both, which describes the land conveyed as all that "contained within the boundary of the 30, 080 tract granted by the state, " referring particularly to the original grant for a complete description, does not pass the smaller tract, which by the terms of the original grant is expressly excluded from its internal boundary.

Appeal from superior court, Burke county; J. H. Merrimon, Judge.

The material facts agreed upon and submitted to the court are, in substance, these:

The defendants are in possession of the land designated in the pleadings as the "Stevely Lands." The state issued its grant, dated the 9th of December, 1795, to James Greenlee, William Irwin, and James Irwin, for 30, 080 acres of land described by appropriate metes and bounds, and this grant contained, in appropriate connection, a clause in these words: "Containing, in the whole, thirty-five thousand two hundred and eighty acres, five thousand acres of which, being previously entered by citizens, is hereby reserved. " The land so granted was afterwards duly sold on the 28th day of July, 1882, by a trustee properly appointed and empowered to sell the same and pass title thereto, to Joshua Kidd, the purchaser. Afterwards, on the 16th of August, 1884, said Kidd conveyed the fee in one undivided third of said land to the defendant William Battye. Afterwards, on the 3d of January, 1885, he likewise conveyed another undivided third thereof to Christopher Robins and William Battye. Afterwards, on the 16th of August, 1885, he likewise conveyed the other undivided third thereof to Christopher Robins. On the 14th of April, 1885, the said Christopher Robins and his wife, and the said William Battye and his wife, likewise conveyed to Matthew Robins one undivided third of said land. Afterwards, on the 27th of May, 1885, the said Christo pher Robins and his wife likewise conveyed to the said Matthew Robins an undivided one-third of said land. Afterwards, on the 3d of June, 1886, the said Matthew Robins and his wife likewise conveyed an undivided two-thirds of said land to the North Carolina Estate Company, Limited, a corporation, and this deed contained a clause whereof the following is a copy: "Hath bargained and sold, and by these presents doth bargain, sell, and convey, to the company, its successors and assigns, forever, the undivided two-thirds share of all the land remaining unsold and contained within the boundary of the 30, 080-acre tract of land granted by the state of North Carolina, in the year 1795, to James Greenlee, William and James Irwin, and situate in Burke county, state of North Carolina. Said tract of land is more particularly and fully described in the original state grant, and in a deed of conveyance from G. P. Irwin to Joshua Kidd, dated July 28, 1882. The tract joins on the south the Branson heirs, " etc. Afterwards, on the 4th of June, 1886, the defendant the said William Battye and his wife likewise conveyed to said company an undivided one-third of said land, and the deed of conveyance contained a clause in the same words just above cited. Afterwards, on the 5th of March, 1889, a judgment creditor of said company, whose judgment was duly docketed, sued out an execution thereupon; and on the 6th of May, 1889, the said land was sold as the property of this company, and on the next day the sheriff executed a deed therefor to the plaintiff G. W. Brown, the purchaser thereof. All the said deeds were duly proven and registered. There was an entry of the land first above mentioned and designated as the "Stevely Land, " duly made on the 27th of May, 1795, before the said first-mentioned grant was issued by the state, and the following is an exact copy of such entry: "North Carolina, Burke county, May 27, 1795. Then surveyed for William Tate and Andrew Baird five thousand one hundred and twenty acres of land on the waters of Henry's and Jacob's rivers, beginning on a tall hickory on a ridge standing on a mass of earth thrown up by a tree's falling out of root, on or near Thomas Walker's line, and running east twenty poles, crossing Walker's creek, whole distance two hundred and twenty-six poles, to a small post oak on a ridge on or near George Walker's line; then south, thirty degrees east, ninety-six poles, crossing canebrake of Henry's river; then three hundred and thirty-two poles, to a fork of the same, whole distance six hundred and forty poles, to a poplar and locust in a rich flat, near a spring and near Jones' line; then south, 20 degrees east, 960 poles, to stake; thenwest 880 poles, to a stake; then north, to the beginning." And thereafter said land was conveyed by grant from the state to said Tate and Baird on the 8th July, 1796. On the land so entered and granted and designated as the "Stevely Land, " 4, 071 acres are situate and lie within the boundary of the grant...