Everitt v. Thomas

• Decision Date: 31 December 1840
• Parties: DEN ON DEM OF JOHN EVERITT v. GEORGE THOMAS.
• Court: North Carolina Supreme Court

1 Ired. 252

23 N.C. 252

DEN ON DEM OF JOHN EVERITT

v.GEORGE THOMAS.

Supreme Court of North Carolina.

December Term, 1840.

By a proper reference of one deed to another, the description in the latter may be considered as incorporated into the former, and both be read as one instrument, for the purpose of identifying the thing intended to be conveyed.

But there must be no inconsistence between the calls of the latter deeds and the former deeds or grants; as, for instance, where the former deed or grant calls for a line of another patent and the latter deed omits that call, but goes for a particular course and distance, and only professes to convey a part of the tract embraced by the grant or former conveyance. In such a case the course and distance called for, being the specific description in the deed, must prevail.

This was an action of Ejectment, tried at Fall Term, 1840, of Richmond Superior Court of Law, before his honor Judge SETTLE, in which there was a nonsuit, and the plaintiff appealed to the Supreme Court.

The lessor of the plaintiff deduced title as follows, to wit:

1st. A grant in favor of George Webb, bearing date the 18th day of April, 1771, describing the land as follows, to wit: between the south prong of Cartledge's creek and Baggett's branch, No. E. of Pedee River, beginning at a black-jack by Crawford's corner a dead hickory, and runs thence No. 60 E. 19 chains 79 links near three black-jacks, then No. 30 W. 44 chains 73 links to a stake among 4 pines, then So. 60 W't 10 chains by a pine in Jackson's line, then with it So.35 West 27 chains to a stake among three pines, then So. 60 West 18 chains and 23 links, then So. 30 East 33 chains and 30 links, then No. 60 East 33 chains 30 links to the beginning.

2nd. A deed from George Webb to Lawrence Everitt, dated Jan. 25th, 1780, describing the land in to??idem verbis, as in the patent; and also as 200 acres of land granted the said George Webb by patent, dated 17th April, 1771.

3rd. The will of Lawrence Everitt, dated May 31st, 1800, and admitted to probate September, 1803, giving the land to his four children, William, Lawrence, Elizabeth and Hannah; Elizabeth had since intermarried with Jesse Williams, and was still alive; Mrs. Williams, the widow of Lawrence, was dead.

4th. A deed from William Everitt, Lawrence Everitt and Jesse Williams, to William Everitt, dated in 1810, the descriptive parts of which are “a part of a tract of land, the said tract containing 200 acres, was granted unto George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, dec'd, to William and Lawrence Everitt and Jesse Williams, his sons, three of the legatees. “Beginning at a stake and runs No. 60 East 19, 79 to three black-jacks, thence No. 30 West 44, 73 to a stake, thence South 60 W. 10 poles, thence South 37 West 27 chains to three pines, then South 60 West 18, 23, thence South 30 East 33 chains and 30 links, thence North 60 East 33 chains 30 links to the beginning, the same containing two hundred acres, more or less; the said William and Lawrence Everitt and Jesse Williams, their heirs and assigns forever, do bargain, sell and convey unto William Everitt one hundred and fifty acres out of the above two hundred acres, three children's part at the death of Mary Williams, formerly the wife of Lawrence Everitt, the mother of William and Lawrence Everitt and Jesse Williams.”

5th. A deed from William Everitt to John Everitt, the lessor of the plaintiff, dated in 1824, which described the land as follows: “a piece or parcel of land containing one hundred and fifty acres, being three fourths of a tract of land of two hundred acres, which Lawrence Everitt, sen., owned at his death; and the part hereby conveyed being the parts formerly belonging to William Everitt, sen., Lawrence Everitt, Jun., and Jesse Williams, in right of his wife in the aforesaid tract; for the boundaries of the said one hundred and fifty acres of land, reference is to be had to the deed of conveyance from the aforesaid legatees, except that fifty acres of said land is encumbered with the life estate of Mrs. Molly Williams, formerly the widow of the said Lawrence Everitt, sen.”

6th. A deed from Hannah Everitt to the lessor of the plaintiff, dated in 1827, and describing the land conveyed as follows: “a part of a tract of land, the said land containing two hundred acres, granted unto George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, dec'd, and then the said tract beginning at a stake and runs No. 60 East 19, 79 to three black-jacks, then North 30 West 34, 73 to a stake, thence So. 60 West 18, 23, thence So. 30 East 33, 50, then No. 60 East 33, 20 to the beginning, the same containing two hundred acres, more or less, and my part being the fourth of the above described...