Falls Of Neuse Manuf'g Co v. Hendricks

• Decision Date: 13 May 1890
• Citation: 106 N.C. 485,11 S.E. 568
• Court: North Carolina Supreme Court
• Parties: Falls of Neuse Manuf'g Co. v. Hendricks.

11 S.E. 568

106 N.C. 485

Falls of Neuse Manuf'g Co.

v.Hendricks.

Supreme Court of North Carolina.

May 13, 1890.

Bond for Title—Description—Parol Evidence —Statute of Frauds.

1. Where land is described in a bond for title as "the Deaver tract, " evidence in aid of the description, that it is " the balance of the Deaver tract, "is not a sufficient identification of it to warrant an instruction that defendant's possession under the bond was notice to all the world of his equitable title.

2. A defective description in a bond for a deed cannot be remedied by a subsequent survey and marking of the lines. A survey in aid of a defective description in an executory contract must be contemporaneous with the making of the contract, and can only be made to correct mistakes in courses and distances.

3. A defective description in a bond for title cannot be aided by the obligor's receipt for the purchase money when the two papers cannot be connected without the aid of parol evidence.

4. A receipt for the purchase price of land given one who is in possession under a bond for title, which describes the land as " his land where he now lives, " is a sufficient memorandum under the statute of frauds to admit parol evidence to aid the description.

Appeal from superior court, Buncombe county; Walter Clark, Judge.

Action by the Falls of Neuse Manufacturing Company against Thomas Hendricks to recover land.

The plaintiff introduced in evidence a deed made by J. M. Young, sheriff of Buncombe county, to J. L. Henry, W. W. Rollins, P. Rollins and G. M. Roberts, dated July 1, 1871, conveying to them the land described in the complaint and in the amended answer in fee; also a deed made by J. M. Young, sheriff as aforesaid, to the same parties, dated September 28, 1872, conveying the same land to them in fee. The plaintiff then introduced a duly-certified transcript from the superior court of Buncombe county of the judgments, executions, and levies of the sheriff thereon, which are recited and mentioned in the said deeds of J. M. Young to J. L. Henry, W. W. Rollins, P. Rollins, and G. M. Roberts. The plaintiff then introduced a deed from J. L. Henry to P. Rollins and L. M. Welch, dated February 11, 1874, conveying to them his interest in said land in fee. They then introduced a deed from W. W. Rollins and wife, Eliza J. Rollins, P. Rollins and wife, Hester J. Rollins, and L. M. Welch, to the Falls of Neuse Manufacturing Compauy, conveying to them the said land in fee, which deed is dated August 8, 1876; also a deed from G. M. Roberts and wife, F. A. E. Roberts, to the Falls of Neuse Manufacturing Company, dated the 28th day of December, 1888, conveying their interest in the said land to the plaintiff in fee; also a deed from Levi Plemmons, commissioner of the superior court of Buncombe county, to the Falls of Neuse Manufacturing Company, dated the 15th day of March, 1880, to the Falls of Neuse Manufacturing Company, conveying to the plaintiff their interest in said land in fee. The plaintiff then introduced an act of the general assembly of North Carolina, and the amendments thereto, incorporating the Falls of Neuse Manufacturing Company, and rested their case. The defendant then introduced the record of the office of the register of deeds for Buncombe county, showing the due probate and registration on the 12th of December, 1871, of a paper writing in words and figures as follows: "Ibind myself in the sum of six hundred dollars to make to Thomas Hendricks a good and sufficient deed for thirty acres of land, being a portion of a tract of land formerly owned by Reuben Deaver, and known as the 'Deaver tract, 'joining Hugh John-sen's, Wm. Johnsten's, and the Robert A. Murray place, beginning on a white oak, the corner of the said Deaver and Murray land, whenever he pays to me the just and full sum of six hundred dollars. 1st January, 1867. Wm. L. Henry. Wily Knight. " The plaintiff objected to the introduction of this paper in evidence, but the court admitted it, and the plaintiff excepted.

The defendant then introduced himself as a witness, and swore: "I paid W. L. Henry for the land described in the bond for title, and went into possession when the bond was given." The plaintiff objected to this testimony, which was admitted by the court, and plaintiff excepted. Defendant further swore: "Some time during the year 1868, after the bond for title was made to me by W. L. Henry, Bryson surveyed out the thirty acres, and marked it. W. L. Henry was present at the time. The thirty acres described in the bond for title adjoins Wm. Johnson on the north, Hugh Johnson on the east, the Robert A. Murray place on the west, the balance of the Deaver tract on the south. The Deaver tract of land contains fifty-four acres, and is a little longer oneway than the other. It is bounded on the north by the William Johnson land, on the east by the Hugh Johnson land, and on the south and west by the Robert A. Murray place." The plaintiff objected to the introduction of this evidence, but the court admitted It, and the plaintiff excepted. At this point in the examination of the witness the following plat was introduced:

On cross-examination, the witness stated that the Deaver tract of land was correctly laid down upon the plat, and was joined by William Johnson on the north, Hugh Johnson on the east, and the Robert A. Murray place on the west and south, as is written on the same in ink. The witness further swore that the southern line of the 30 acres claimed by him in his amended answer was not located or known until the land was surveyed, soon after the bond for title was made; and that they ran down the line of the Deaver land and the Hugh Johnson place southward a sufficient distance to make 30 acres, by running a straight line due west to the western line of the Deaver land, or east boundary line of the Robert A. Murray place, thence running back north, on the line of the Murray land, to the white oak; that W. L. Henry was present at the survey, and accepted it as the proper location of the bond. The defendant then introduced W. L. Henry, who testified that the defendant paid him $600 for the land described in the bond for title; that he paid it in stock, a gold watch, and that witness owed the defendant some money, and the defendant returned witness' note, which was about $100. The defendant then offered in evidence said witness' receipt, the execution of which the witness acknowledged, and which is in words and figures as follows: "I have received of T. Hendricks on his land, where he now lives, one horse, $150; cattle, $100; one watch, $100; two-horse wagon and bed, 40 or 50 dollars; and possibly other payments, —amounting in all to five hundred dollars. I only now remember the above items. 8th Sept., 1867. [Signed] Wm. Henky. " The plaintiff objected to the introduction of this receipt, but the objection was overruled, and the plaintiff excepted. Witness then testified, without objection, that he had sold to defendant R0 acres, embracing the northern end of the Deaver tract, which he pointed out on the map to the jury; that the land was afterwards surveyed and marked off in the same spring, and the whole money paid before September, 1807; that he was present, and that the sheriff gave notice at the sale of the defendant's bond for title.

Good Roberts, another witness for the defendant, testified that the land in dispute was covered by the sheriff's deed to the plaintiff; that he knew of the sale, and bond for title, to defendant Hendricks, before he sold to plaintiff; and that Judge Henry, one of the parties from whom the plaintiff bought, also knew of the same before he sold to the plaintiff, but Henry did not know of this until after sheriff's sale, but all parties knew of the defendant's possession at the time of the said...