Buckhorne Land & Timber Co. v. Yarbrough

• Decision Date: 24 March 1920
• Docket Number: 103.
• Citation: 102 S.E. 630,179 N.C. 335
• Parties: BUCKHORNE LAND & TIMBER CO. v. YARBROUGH.
• Court: North Carolina Supreme Court

102 S.E. 630

179 N.C. 335

BUCKHORNE LAND & TIMBER CO. v. YARBROUGH.

No. 103.

Supreme Court of North Carolina

March 24, 1920

Appeal from Superior Court, Chatham County; Connor, Judge.

Action by the Buckhorne Land & Timber Company against J. A Yarbrough. From judgment for plaintiff, defendant appeals. New trial.

Neither a tenant nor his subtenant can controvert the landlord's title, being estopped from asserting their own title, even a homestead right, until possession has been restored to the landlord; a rule not precluding the tenant from showing an equitable title in himself, or circumstances calling for the interposition of equity for his relief.

This action was brought to recover the possession of land. The plaintiff, in its complaint, alleged title in itself to a large tract of land, which the plaintiff estimated to contain something like 10,000 acres. The defendant disclaimed any interest in the land except two tracts one containing 110 acres and one 7 1/2 acres, in which he asserts ownership in himself, and denied the plaintiff's title. Upon coming to trial the plaintiff, with leave of the court, amended its complaint limiting the controversy to the two tracts of 110 acres and 7 1/2 acres to which the defendant had asserted claim of title, and upon the amended pleadings as set forth in the record the case was tried. The defendant assigned three errors (among others not deemed necessary to be now considered), as follows:

The admission, over his objection of a deed from Neill McKay and John W. McKay to the Deep River Manufacturing Company, and other deeds connecting him therewith; the ground of objection being that the description of the land in the deeds was too vague and uncertain for it to be identified. It will be necessary to give only the description in the first-named deed, as the others refer to it, which is as follows:

"All that tract of land situated, lying, and being in the counties of Harnett and Moore, lying on both sides old road between Summerville and Neill McNeill's land in Moore county, bounded by the lands of Neill McNeill, Esq., lands belonging to the estate of Murdock McLeod, deceased, Jas S. Harrington, Neil McLean, Jr., the Bethea lands, Jas. M Turner, and the lands of the estate of Noah Buchanan and others, including a part of a 5,000-acre survey and a 3,000-acre survey patented by John Gray Blount and conveyed by Wm. B. Rodman and others to Neill McKay and John W. McKay; also 640 acres patented by the said John W. McKay; also a piece patented by Jas. S. Harrington and John Harrington and Neill McNeill and Hector McNeill and others, and by them conveyed to the said Neill McKay and John W. McKay, containing by estimation 10,000 acres."

The second error assigned is the admission in evidence of a written lease of the lands, for the purpose of working the trees thereon for turpentine, and for this purpose only, introduced for the purpose of estopping the defendant, who claimed under said lease, to deny the plaintiff's title.

The third error assigned is to the admission of a paper writing, signed by D. G. McDuffie, civil engineer, dated September 24, 1888, for the purpose of locating the land described in the McKay deed aforesaid; the said paper writing being in the following words and figures:

This is to certify that November 14, 1868, Rev. Neill McKay and Dr. J. W. McKay and wife sold to the Deep River Manufacturing Company 10,000 acres of land in Harnett county and Moore county, as follows: 5,000 acres and 3,000 acres known as the Blount speculation land, and 2,000 acres composed of 640 acres granted to Dr. J. W. McKay and the pieces which the McKays had bought from Neill McNeill, Hector McNeill, Jas. S. Harrington, and John Harrington, joining Neill McNeill, McLeod, Neill McLean, Jr., Bethea, J. M. Turner, and Noah Buchanan.

I further certify that I was selected by both parties to make an actual survey of said lands, and that the Rev. Neill McKay went with me and showed me where the boundaries were, and that after making the survey I handed the plat and courses and distances to Col. J. M. Heck, and I certify that the following are the courses and distances (then follows description by metes and bounds).

There are other exceptions and assignments of error, but, in the view taken of the case by the court, they need not be set out here. Defendant moved for a nonsuit, which was denied, and he excepted.

The jury returned the following verdict:

(1) Was E. J. Yarbrough, at the time she executed the deed to J. A. Yarbrough for the 110-acre tract described in the amended complaint, the tenant of the plaintiff's predecessor in title? Answer: Yes.

(2) Is the plaintiff the owner and entitled to the possession of the lands described in the amended complaint? Answer: Yes.

(3) What is the annual rental value of plaintiff's lands in the possession of the defendant? Answer: $80.

Judgment on the verdict, and defendant appealed.

Baggett & Baggett, of Lillington, H. E. Norris, of Raleigh, A. C. Ray and W. P. Horton, both of Pittsboro, and Chas. Ross, of Lillington, for appellant.

Seawell & Milliken and Hoyle & Hoyle, all of Sanford, for appellee.

WALKER, J. (after stating the facts as above).

The description in the deed of Neill McKay and John W. McKay to the Deep River Manufacturing Company is sufficiently certain to let in parol evidence for the purpose of identifying the land. Since the decision of this court in Patton v. Sluder, 167 N.C. 500, 83 S.E. 818, there can be no doubt of the correctness of the proposition just stated that the description of the land is not too vague to be aided by parol proof so as to fit it to the land intended to be conveyed. The descriptive words in the Patton Case were: "On the headwaters of Swannanoa river, adjoining Hemphill and Gilliam heirs and others." Prior to the decisions in Blow v. Vaughan, 105 N.C. 198, 10 S.E. 891, and Wilson v. Johnson, 105 N.C. 211, 10 S.E. 895, such descriptions as that appearing in the McKay deed were held not to be too vague and indefinite to be aided by parol proof. Those two cases varied the rule somewhat, but were disapproved in Perry v. Scott, 109 N.C. 374, 14 S.E. 294. The following was the description construed in the last case:

"Lying and being in the county of Jones and bounded as follows, to wit: On the south side of Trent river, adjoining the lands of Colgrove, McDaniel, and others, containing 360 acres, more or less."

This was held to be sufficiently certain to be located by parol proof.

It is true we have held that a deed conveying real estate or a contract concerning it, within the meaning of the statute of frauds, must contain a description of the land, the subject-matter of the contract, "either certain in itself, or capable of being reduced to certainty by a reference to something extrinsic to which the deed refers" (Massey v. Belisle, 24 N.C. 170); but the principle is satisfied by the descriptive words of this deed. The evidence proposed to be offered to identify the land must, of course, have that tendency, but we are not discussing the question whether the description is sufficient in any given case, but the general one, what description is, in itself, sufficiently certain to be perfected by parol testimony.

In our case, we think the description is sufficient to let in parol evidence. The Revisal of 1905, §§ 948 and 1605, declares in explicit language that this shall be the law. The matter is so fully discussed in Perry v. Scott, supra, and in Patton v. Sluder, 167 N.C. 500, 83 S.E. 818, that further comment would be useless. While we hold that the deed is valid, there was some evidence admitted to identify the land, which we deem to be incompetent. We refer to the notes of the surveyor, D. G. McDuffie, made in September, 1888, and which are fully set forth in our statement of the case. The paper is in the handwriting of McDuffie, who is dead, and it was written by him before this controversy arose and this action was brought, and at the time of writing these notes McDuffie had no interest in the land or the subject-matter of the notes, except that he had been employed by the McKays and the Deep River Manufacturing Company to make the survey for them, but the fact remains that the surveyor, McDuffie, derived his knowledge of the lines and corners upon which he based his survey from Parson Neill McKay, and this fact appears in the notes offered in evidence by the plaintiff, for he says in the notes:

"I further certify that I was selected by both parties to make an actual survey of said lands, and that the Rev. Neill McKay went with me and showed me where the boundaries were, and that after making the survey I handed the plat and courses and distances to Col. J. M. Heck, and I certify that the following are the courses and distances."

It is true that in questions of boundary hearsay is competent as evidence. But it must come from a disinterested source. The conditions under which it is received are: (1) The declaration must come from a disinterested person; (2) it must have been made ante litem motam; and (3) the person who made it must be deceased, so that he cannot be produced and heard in person as a witness. Smith v. Headrick, 93 N.C. 210; Yow v. Hamilton, 136 N.C. 357, 48 S.E. 782, and cases cited. It was said by Smith, C.J., in Whitehurst v. Pettipher, 87 N.C. 179, 42 Am. Rep. 520:

"The declaration is received under the conditions mentioned as evidence, instead of the sworn statement for which it is substituted, when the party making it is dead and the evidence would otherwise be lost. It is manifest that if the declarant were alive, and would be allowed to prove the fact to which the declaration relates, the declaration

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