Massey v. Belisle

• Decision Date: 31 December 1841
• Citation: 24 N.C. 170,2 Ired. 170
• Court: North Carolina Supreme Court
• Parties: THOMAS H. MASSEY v. MARY BELISLE.

2 Ired. 170

24 N.C. 170

THOMAS H. MASSEY

v.MARY BELISLE.

Supreme Court of North Carolina.

December Term, 1841.

In a written contract the terms are fixed, and the meaning of those terms is a question of law.

So also in a parol contract where the terms are precise and explicit.

But in a parol contract, if the parties dispute about the terms of the agreement, and these are obscure or destitute of precision or to be inferred from the conduct of the parties, the ascertainment of these terms is in the first place necessary, and this is clearly a question of fact.

Every deed of conveyance of land must set forth a subject matter, either certain in itself or capable of being reduced to a certainty by a refer??erence to something extrinsic to which the deed refers.

It is a settled rule of construction in this State that when “stakes” are mentioned in a deed simply, or with no other added description than that of course and distance, they are intended by the parties and so understood to designate imaginary points.

Where the question on trial was as to the boundary of a town lot, and the deed under which one of the parties claimed contained two descriptions, one saying it “adjoined” a certain other lot, and another giving a different description, the Court did not err in leaving it to the Jury to decide which description they thought was intended by the parties to the deed--whether the parties in using the word “adjoining,” might not have meant “near” as the word is sometimes used in common parlance.

This was an appeal from the judgment of the Superior Court of Law of Cumberland County at Fall Term, 1841, his Honor Judge PEARSON presiding. The suit was an action of assumpsit for twelve dollars, and commenced by warrant before a magistrate. The plaintiff proved on the trial, that in January, 1834, he employed one Black, a surveyor, to run out his lot in the town of Fayetteville; that according to Black's survey, a small house, which the defendant had erected since the very destructive fire in 1831, which consumed all the houses in that part of the town, was about two feet on the plaintiff's side of the line; that the defendant was informed of this fact snd promised to pay the plaintiff four dollars per annum until she should move the house; that at the expiration of the first year, the plaintiff demanded the four dollars; that the defendant objected to paying it, saying, that she had since become satisfied that the house was not on the lot of the plaintiff and it was hard to pay rent for her own land; that the plaintiff said she might as well pay the money, and, if it turned out that the house was not on his lot, he would refund the money; that the defendant paid the four dollars; that afterwards the plaintiff and defendant agreed to have the lines run and established by two surveyors; that they, however, did not agree upon the line; that at the expiration of the four years, the plaintiff demanded twelve dollars, according to their understanding, the house not having been removed; and that the defendant refused to pay it.

The defendant's counsel insisted that the promise to pay was upon condition that the house was in part upon the plaintiff's lot, and contended that the plaintiff must prove that fact; and in the second place, that, if the promise was not upon an express condition, at all events it was in consideration of the fact that the defendant's house in part stood upon the plaintiff's lot, and offered to shew that the consideration had entirely failed, because in fact the house did not touch the plaintiff's lot. The plaintiff's counsel insisted, that whether the house was or was not on the plaintiff's lot was immaterial, for that the promise was made in consideration of forbearance to sue, or by way of compromising a doubtful claim and therefore binding. The Court intimated the opinion, that it was to be settled by the Jury, whether the promise was upon condition and what was the consideration of the promise; and said, that if the Jury were of opinion, that the four dollars per annum for the last three years was only to be paid upon condition that the house stood in part upon the plaintiff's lot, the plaintiff must prove that fact; if the promise was in consideration that the house stood in part upon the plaintiff's lot, the defendant might shew an entire failure of the consideration by proving that the house did not touch the plaintiff's lot, and the promise would not in that event be binding: but if the consideration was forbearing to sue or by way of compromise, then it would make no differenee how the line was.

Evidence was then offered on both sides as to the title. The plaintiff contended that his lot was located as represented by A. B. C. D. in the plat, and read in evidence a deed to himself from John G. Coster, together with regular conveyances to Coster. This deed described the land it conveyed, as follows: “all that tract or parcel of land, situate, &c. in the Town of Fayetteville, County of Cumberland and State of North Carolina, beginning at a stake on William Gillespie's line, running thence South 15° West 94 feet four inches to a stake on Hay Street, thence on said Street North 70°>>> West thirty feet to a stake, thence North 15° East 74 feet six inches to a stake in said Gillespies line, thence with said line to the beginning, being the same lot conveyed by William F. Strange, Clerk and Master in Equity for said County to said Coster by deed registered in said County book M. No. 2, page 544.” The defendant read in evidence a deed to one Patillo, under which she claimed. The description of the land conveyed by this deed is as follows; “a certain lot or parcel of land in the Town of Fayetteville adjoining William Riley's lot on the North side of Hay Street, beginning at a stake called Newbery's, Gillespie's or Simpson's corner, running then South, 15° West 104 1/2 feet more or less to the plat of the Street, thence along the Street So. 70°, East 24 feet, thence North 15°, East 104 1/2 feet, thence North 79°, West 24 feet, it being a square lot of land 24 feet in front and 104 1/2 back. The defendant claimed that her lot was located as represented by 1, 2, 3, 4, and that the proper location of the plaintiff's lot was represented by 6, 7, 8, 5. To locate his lot, the plaintiff read in evidence a deed to one Gordon for one acre, which he contended was represented by A. or E. H. I. K., and proved that his lot and the Morrison lot were taken off of the Gordon lot, being the part North of Hay Street. The plaintiff also offered evidence to shew that, by general reputation, a stone at E., was the corner of the Gordon acre, and that E. K. was the Simpson line mentioned in the deeds. The plaintiff also proved that for many years before the fire, a fence dividing his premises from the Morrison premises run along the line C. D., some of the posts were still standing. He also proved that the corner of his house stood at C. before the fire and extended to 7; and contended that Z. C. F. represented Morrison's lot, and E. B. C. F. or A. B. C. D. represented his lot, and so filled up that corner of the Gordon acre. The defendant's house extended about two feet West of the line E. B., but did not reach the line 1 2. The defendant contended that 1, 9, 10, 7, represented the Gordon acre; and offered evidence to shew, that by general reputation. a stone at 1 was the corner of his lot, and that 1, 9, was the Simpson line, mentioned in the deeds. The defendant also offered evidence to shew, that by general reputation, the South East corner of her lot was at 3, where Old Street left Hay Street. It appeared by the survey, that if Z. was the intersection of Hay Street and the Simpson line, or the line of the Gordon acre, which corresponded, then Z. 8, 5, would fill the cousres and distances of the Morrison lot, 8, 5, 7, 6, would fill the courses and distances of the plaintiff's lot, Z, 8, would be the front on Hay Street, called for by Morrison, and 8, 7, the front called for by the plaintiff, and 2, 3, the front cailed for by the defendant's deed, B. C. was also the front on Hay Street called for by the plaintiff's deed. The defendant also proved that for 25 years before the fire, there was an alley about four feet wide at 2, 7, reaching back to P. and a fence from P. back to 1. Some of the posts were still standing, although the fence was consumed by fire. This alley and fence separated the premises occupied by the defendant, or those under whom she claimed, from the premises occupied by the plaintiff or those under whom he claimed.

After leaving to the Jury the question as to the promise and the consideration, as above stated, the Court charged, that, in locating the plaintiff's lot, the Jury would commence in Simpson's line, and then run to Hay Street, without regarding distance, as these two calls would control the distance; and it made no difference, in this view of the case, whether the line E K or the line 1 9 was the Simpson line, for the contest was how far East on Hay Street the plaintiff's lot extended; it was immaterial how far North it extended back; that, upon the supposition that E H I K was the Gordon acre, as contended by the plaintiff, then the question was, whether the East line of the plaintiff's lot extended to the line E H, the East line of the Gordon acre. The plaintiff insisted that it did, because if C D, where the old fence stood, was the West line, then, according to the distance on Hay Street, A B or E B would, for the other reasons suggested by his counsel, be the East line. The defendant insisted that the East line of the plaintiff's lot was 6 7, and did not extend to the East line of the Gordon acre, because the plaintiff's deed called for a stake in Simpson's line, then South to Hay Street, and did not call for the corner of the Gorden acre, or running with Gordon's original line, whereas if it had commenced at the corner and run with the old line, he contended such...