Hemphill v. Annis

• Decision Date: 21 December 1896
• Citation: 119 N.C. 514,26 S.E. 152
• Parties: HEMPHILL et al. v. ANNIS.
• Court: North Carolina Supreme Court

26 S.E. 152

119 N.C. 514

HEMPHILL et al.

v.ANNIS.

Supreme Court of North Carolina.

Dec. 21, 1896.

Deeds—Description—Parol Evidence.

Where a deed offered in evidence describes the property as "a certain quantity of land containing 350 acres, being in six different deeds, the courses and distances referred to the original grants, which are six. lying on" a certain river, the land conveyed cannot be indentified by introducing a deed to the grantor for 50 acres, and then offering to prove by parol that the tract described in the second conveyance was one of six tracts claimed by the grantor in the first when he executed the deed.

Appeal from superior court, McDowell county; Brown, Judge.

Action by H. M. Hemphill and others against G. M. Annis to recover for trespass. There was judgment for defendant, and plaintiffs appeal. Affirmed.

J. L. C. Bird, for appellants.

E. J. Justice, for appellee.

AVERY, J. It is elementary learning that no contract can be enforced unless the subject-matter upon which it is intended by the parties to operate can first be definitely ascertained from its terms, either through an explicit description therein or a reference which points to extrinsic means of identification. This principle applies to verbal agreements as well as to those required by the statute (Code, §§ 1552-1555) to be in writing. Hence, where a statute is passed by the legislature, making it essential to the validity of contracts conveying any interest in land that they should be in writing, the courts can no more dispense with such identification of the subject-matter of the deed by description which, either through its own definiteness or by reference to something aliunde, can be fitted with reasonable certainty to it, than they can hold the party to be charged therewith bound where neither he, nor his lawfully authorized agent for him, signs such agreement. In the application of the maxim, "Id certum est, quod certurn reddi potest, " it has always been held, in construing contracts for the sale of chattels, that the agreement must provide the means of making certain what is intended to be sold. Lumber Co. v. Wilcox, 105 N. C. 34, 10 S. E. 87-1. In the application of this maxim, Judge Gaston formulated the rule (in Massey v. Bel-isle, 2 Ired. 170) that "every deed of conveyance must set forth a subject-matter either certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which the deed refers." The rule has been repeatedly approved, notably by Chief Justices Pearson and Smith in the cases of McCormick v. Monroe, 1 Jones (N. C.) 16, and Harrison v. Hahn, 95 N. C. 28. But in later years disagreements have from time to time grown out of differences of opinion as to whether the particular words employed in a given instrument pointed to extrinsic proof in such a way as to make it admissible in explanation of an ambiguity. In Perry v. Scott, 109 N. C. 376, 14 S. E. 294, the court overruled Wilson v. Johnson, 105 N. C. 211, 10 S. E. 895, but approved Blow v. Vaughan, 105 N. C. 198, 10 S. E. 891, except in so far as the principle enunciated was applied arguendo to the particular description then under consideration. It has been well settled, by a series of adjudications, that, where a reference is made in one deed to another for a more definite description, the effect is to incorporate the description in the instrument referred to into that containing the reference, provided the language used points so clearly to the explanatory deed or instrument as to make it possible to identify it But a conveyance of six tracts of land, lying on a specified stream, and theretofore granted to A. B. (if, In fact, patents to a dozen tracts situated on it had been issued to A. B.), no more identifies the subject-matter of the conveyance than does the conveyance of six buggies, out of a much larger number, without giving the means of distinguishing those intended to be sold from the others. The defendant claims under a grant and deed, both of which, it is admitted, inclose the land in dispute. The plaintiffs offered in evidence a deed of conveyance from James Woods to Margaret Mason containing the following description: "A certain quantity of land, containing three hundred and fifty acres, being in six different deeds, the courses and distances...