Clarke v. Aldrtdge

• Decision Date: 22 May 1913
• Citation: 78 S.E. 216,162 N.C. 326
• Parties: CLARKE et al. v. ALDRTDGE.
• Court: North Carolina Supreme Court

(162 N.C. 326)

78 S.E. 216

CLARKE et al.

v.ALDRTDGE.

Supreme Court of North Carolina.

May 22, 1913.

1. Assistance, Writ of (§ 1^*) — Scope of Remedy.

A writ of assistance, in its ordinary acceptation, is one issuing from a court having general equitable jurisdiction for the enforcement of decrees or orders conferring a right to the present possession or enjoyment of property. It usually issues on motion after notice duly served, when the right thereto is clear and, as a rule, only against parties or persons bound by the terms of the decree.

[Ed. Note.—For other cases, see Assistance, Writ of, Cent. Dig. § 1; Dec. Dig. § 1.*]

2. Deeds (§ 115*)—Physical Survey—Description.

Where parties, with a view of making a deed, go on the land and make a physical survey of the same, giving it a boundary which is actually run and marked, and the deed is thereupon made, intending to convey the land which they have surveyed, such land will pass, at least as between the parties or volunteer claimants who hold in privity, though a different and erroneous description may appear on the face of the deed.

[Ed. Note.—For other cases, see Deeds, Cent. Dig. § 325; Dec. Dig. § 115.*]

3. Evidence (§ 460*)—Parol Evidence—Contradiction of Deed.

Parol evidence of a survey by the parties prior to the execution of a deed to identify the land intended to be conveyed is admissible to control the written description in the deed.

[Ed. Note.—For other cases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. § 460.*]

4. Judgment (§ 735*) — Conclusiveness — Partition Decree—Issues.

Where, in a prior suit, the parties only joined issue as to the delivery of certain deeds, and the question of boundary or correct location of the land was neither involved nor determined, a provision in the decree that defendant was the owner of the land described in the deeds was not conclusive as to the location of the land actually conveyed.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 1263, 1265; Dec. Dig. § 735.*]

5. Judgment (§ 533*)—Decree—Construction—Description of Land.

Where, prior to the execution of certain deeds, the parties went on the land and made an actual survey of the land intended to pass, marking the boundaries thereof, and then executed deeds by a description which did not comply with the boundaries located, a decree awarding title to the land contained in the deeds should be interpreted to mean "as contained" in the deeds correctly located according to law.

[Ed. Note.—For other cases, see Judgment, Cent. Dig. §§ 978, 983; Dec. Dig. § 533.*]

Appeal from Superior Court, Mitchell County; Cline, Judge.

Action by T. P. Clarke and others against Benjamin Aldridge. Judgment for plaintiffs, and defendant appeals. Reversed.

On the trial it was made to appear that heretofore plaintiffs and defendant, other than Benjamin Aldridge, as children and heirs at law of D. S. Clarke, deceased, had instituted suit for partition of certain lands in said county. Owing to the existence of equities affecting the title, and not relevant to the present inquiry, the cause was brought to superior court in term. Pending the controversy, defendant, Benjamin Aldridge, on motion, was made party defendant and pleaded sole seisin as to a portion of the land, under and by virtue of two deeds from D. S. Clarke to two of his sons, H. W. Clarke (Henry) and J. B. Clarke, of date March 3, 1898; said Aldridge having acquired and holding whatever estate and interest were conveyed in these deeds. A deed to a third son, Harvey, for an additional portion of the land, purported to have been made at the same time. The plaintiffs, in the partition proceedings, denied the validity of this claim on the part of Aldridge, asserting that the alleged deeds by D. S. Clarke to his sons had never been delivered. The following issue was submitted and responded to by the jury: "(1) Were the three deeds of March 3, 1898, executed by D. S. Clarke and wife, Susan, to James Clarke, Harvey Clarke, and Henry Clarke, delivered to said parties? Answer: Yes." It was thereupon adjudged that Benjamin Aldridge was owner of the tracts of land described in the two deeds from D. S. Clarke to Henry and J. B. Clarke, and that Harvey Clarke owned the land "described in the deeds to him." Thereupon the defendant, Aldridge, asserting his rights under said deeds, and claimed by him to be in accordance with said decree, particularly under the deed to H. W. Clarke (Henry), which contained the land lying next to that of plaintiffs, occupied the property up to a divisional line: "Beginning at a recognized corner at D., runs thence S. 80 E. 33 poles to a stake, thence S. 65 E. 15 poles to a stake, thence N. 72 E. 60 poles to a stake, thence S. 87 E. 52 poles to a black gum, W. W. Clarke's corner, " etc. On the face of the deed to H. W. Clarke, this divisional line is described as follows: "Beginning at the recognized corner, D., runs thence S. 11 E. 33 poles, thence S. 65 E. 15 poles to a stake, thence N. 72 E. 60 poles to a stake, thence S. 87 E. 52 poles to a black gum, W. W. Clarke's corner, " etc.; the discrepancy, as it is now presented, being caused by running the line from D., S. 80 E. 33 poles, instead of S. 11 E. 33 poles, the call on the face of the deed. The plaintiffs, then, on affidavit filed and notice duly issued and served on all the adverse parties, returnable to term, moved the court for a writ of assistance to place them in possession of the land, according to the terms of the decree. On this notice, pleadings were regularly filed, and at said November term, 1912, the cause was submitted to the jury and the divisional line was established by the verdict to be as contended for by plaintiffs. There was judgment for plaintiff, and defendant excepted and appealed, assigning for error certain rulings of the court on questions of evidence.

W. L. Lambert, of Bakersville, W. C. Newland, of Lenoir, and S. J. Ervin, of Morgan-ton, for appellant.

T. A. Love, of Saginaw, for appellees.

HOKE, J. (after stating the facta as above). [1] The writ of assistance, in its ordinary acceptation, is one issuing from a court having general equitable jurisdiction for the enforcement of decrees or orders conferring a right to the present possession or enjoyment of property. It usually issues on motion after notice duly served, when the right thereto is clear, and, as a rule, only against parties or persons bound by the terms of the decree. Wagon Co. v. Byrd, 119 N. C. 464, 26 S. E. 144; Exum v. Baker, 115 N. C. 244, 20 S. E. 448, 44 Am. St. Rep. 449; Knight v. Hough tailing, 94 N. C. 408; 2 Beach, Modern Eq. Practice, § 897; Schenck v. Con-over, 13 N. J. Eq. 220, 78 Am. Dec. 95, and see editorial note to case of Clay v. Hammond, 199 Ill. 370, 65 N. E. 352, appearing in 93 Am. St. Rep. at page 154. It seems that the facts of the present case would properly call for or permit a resort to this process, but we are not required to determine this question, for the reason that, on notice duly served and returnable to term, pleadings have been regularly filed and the issues determined by the jury, and, the parties having thus elected to treat the proceedings as an original action to recover land, we have concluded it is best to adopt their view and consider and deal with the case in that respect.

Coming, then, to the principal question —the validity of the present trial before the jury—the plaintiffs put in evidence the original proceedings, including the decree and the deeds under which defendant claimed, particularly that to H. W. Clarke, describing the divisional line as running from the recognized point at D., S. 11 E. 33 poles to a stake, thence S. 65 E. 15 poles to a stake, etc., to the black gum corner, and offered evidence, further, of the value of the lands wrongfully occupied by the defendant if the line from D., S. 11 E., were run as called for on the face of the deed. Defendant then offered to prove that, just prior to the execution of the deeds in question, and with the view of making the same, the grantor, D. S. Clarke, desiring to make division of said land among his children, went on the premises with a surveyor and the grantees, J. B. and Harvey Clarke, and ran and marked the boundaries, including this divisional line in controversy, running said line from "the corner fixed at D., thence along a fence, S., 80 E. 33 poles to a stake, thence S. 65 E. 15 poles to a stake along the fence, thence north 72 E. 60 poles to G., thence S. 87 E. 52 poles to the black gum at H., " said D. S. Clarke indicating the line and marking some of the trees and having others marked on the line as surveyed; that "the deed in question was made pursu ant to said survey, and intending to convey the land embraced in the same." This, with other evidence of similar purport, was, on objection, excluded by the court, and we are of opinion that the ruling must be held for reversible error.

It has been long held for law, in this state, that, when parties, with the view of making a deed, go upon the land and make a physical survey of the same, giving it a boundary which is actually run and marked, and the deed is thereupon made, intending to convey the land which they have surveyed, such land will pass, certainly as between the parties or...