Cathey v. Buchanan Lumber Co.

• Decision Date: 23 December 1909
• Citation: 66 S.E. 580,151 N.C. 592
• Parties: CATHEY et al. v. BUCHANAN LUMBER CO.
• Court: North Carolina Supreme Court

66 S.E. 580

151 N.C. 592

CATHEY et al. v. BUCHANAN LUMBER CO.

Supreme Court of North Carolina

December 23, 1909

Appeal from Superior Court, Graham County; Ward, Judge.

Action by M. P. Cathey and others against the Buchanan Lumber Company. Plaintiffs had judgment, and defendant appealed. Affirmed.

Parol evidence is admissible when it is necessary to identify explain, or define the subject-matter of a grant.

These issues were submitted: "(1) Are the plaintiffs the owners in fee of the lands described in the complaint? Ans. Yes; one-third interest. (2) Have the defendants cut and removed timber therefrom as alleged? Ans. Yes. (3) What damage has been done to said land by reason of cutting and removing said timber? Ans. $1,033.50."

The case was made to turn upon the construction of a deed from A W. Crisp and others to John M. King, dated November 8, 1888 under which defendant claimed, which is as follows.

"State of North Carolina, Graham County.

"This deed made this 8th day of November, 1888, by Alfred W. Crisp and wife, Sarah J. Crisp, I. J. Sawyer and wife, M. J. Sawyer and C. Randolph and wife, M. P. Randolph, of Graham county and state of North Carolina to John M. King of Graham county and state of North Carolina, witnesseth: That in consideration of $324 to them paid by said John M. King, the receipt of which is hereby acknowledged, has bargained and sold and by these presents does bargain, sell and convey to said John M. King, his heirs and assigns 324 acres of land, part of a certain tract of land composed of Nos. 3044, 3097 and 3098, in Graham county and state of North Carolina, adjoining the lands of Alexander Baring and others, beginning on a hickory 4 poles S. of the N.W. corner of No. 3098 and runs S. 62~ W., 22 poles to a black pine; thence N. 67~ W., 66 poles, to a Spanish oak on top of a ridge; thence S. 86~ W., 80 poles, to a chestnut on a former line; thence S., 70 poles, to a Spanish oak on the line of 3097; thence S. 85~ W. with the line of said No., 300 poles, to a small crooked chestnut oak on a ridge; thence S. 85~ W., 11 poles, to a stake and pointers, corner of Joel C. Sawyer's thirteen acre lot; thence S. 70~ E. with the same, 50 poles, to a Spanish oak; thence S. 40~ E., 44 poles, to a black pine; thence S. 35~> W., 70 poles, to a small black pine on the line of No. 3044; thence S. 70~ E. with said line, 114 poles, to a crooked chestnut, corner of said No. on the bank of said Panther creek; thence up said creek as it meanders, 200 poles, to a birch, beginning corner of said Sawyer lot; thence N. 70~ W. with said lot, 180 poles, to a hickory and chestnut on the line of No. 3044; thence S. 35~ W. with the same, 100 poles, to the S.W. corner of said No.; thence S. 70~ E., 200 poles, to the S.E. corner of the same; thence N. 35~ E. with said No., 162 poles, to a chestnut oak on the line of said No.; thence S. 82~ E., 198 poles, to a black oak on the divide between said creek and Cook's corner of Cook's lot; thence N. 38~ E., 50 poles, to a chestnut, corner of said lot; thence N. 11~ W., 18 poles, to a black oak, corner of the same; thence N. 57~ E. with said lot, 193 poles, to a small maple on the S. bank of said creek on the line of 3098; thence N. with said No., 71 poles, to the beginning, containing 724 acres, more or less. To have and to hold the aforesaid 327 acres, being a part of the aforesaid tract of land, with all privileges and appurtenances thereto, belonging to the said John M. King, his heirs and assigns forever to their only use and behoof. And the said Alfred W. Crisp and wife, Sarah J. Crisp, I. J. Sawyer and wife, M. J. Sawyer, C. Randolph and wife, M. P. Randolph, covenants that they are seised of said premises in fee and have the right to convey the same in fee, simple; that the same are free from all incumbrances; and that they will warrant and defend the said title to the same against the claims of all persons whatsoever.

"In testimony whereof the said Alfred W. Crisp and wife, Sarah J. Crisp, I. J. Sawyer and wife, M. J. Sawyer and C. Randolph and wife, M. P. Randolph have hereunto set their hands and seals the day and year above written.

"[Signed] A. W. Crisp. [Seal.]

"S. J. Crisp. [Seal.]

"I. J. Sawyer. [Seal.]

"M. J. her X mark Sawyer. [Seal.]

"C. Randolph. [Seal.]

"M. P. Randolph. [Seal.]

"[Annexed are acknowledgments of the parties, and certificates of authority of the officer taking them.]

"Registered in the office of the register of deeds for Graham county, N. C., in Book M of Deeds, on page 490, etc.

"Witness my hand this 14th day of June, 1904.

"[Signed] Robt. B. Slaughter, Register of Deeds,

"By John H. Harwood, Deputy Register."

Bryson & Black, for appellant.

Morphew & Phillips, for appellees.

BROWN J.

The only controversy presented for our decision by the assignments of error arises upon the ruling of the court below that the description of the land attempted to be conveyed by the deed from C. Randolph et al. to John M. King upon which the defendant relies to prove title, is insufficient and so indefinite as not to permit the introduction of parol evidence to locate the land. We have considered with care the very full and well prepared brief of the learned counsel for appellants, and are nevertheless of opinion that the deed is void for uncertainty in describing the property to be conveyed. The object of a descriptive part of a deed is to define what the parties intend, the one to convey, the other to receive, and, when that is doubtful, the settled rules of construction invoked by appellant and invented by courts to aid them in...