Midyett v. Wharton

• Decision Date: 18 February 1889
• Parties: MIDYETT et ux. v. WHARTON et al.
• Court: North Carolina Supreme Court

8 S.E. 778

102 N.C. 14

MIDYETT et ux. v. WHARTON et al.

Supreme Court of North Carolina

February 18, 1889

Appeal from superior court, Hyde county; J. F. GRAVES, Judge.

Ejectment by W. P. Midyett and wife, Nancy, against R. W. Wharton Dixon Selby, and others. Judgment for defendants, and plaintiffs appeal.

A deed after describing the boundaries of the premises conveyed, and giving the names of former grantors and grantees, contained the following reservation: "The lands heretofore conveyed by Talbot H. Selby [a former grantee] to other parties, and by [the grantor in this deed] to Samuel S. Mann and Joseph S. Mann, are excepted from the operation of this deed." Held, that the reference in this clause to the former conveyances was sufficiently specific to restrain and limit the preceding description of boundaries, and to exclude from the grant the portions referred to.

C. F Warren and J. H. Small, for appellants.

Spier Whitaker, for appellees.

SMITH C.J.

The land whose recovery is sought in the action belonged to one Talbot Selby, and the plaintiffs derive their claim of title thereto by virtue of a sale under execution by the marshal of the United States, made on November 30, 1868, issued upon a judgment rendered in the circuit court of the United States in favor of Carly Howe & Co. against the said Talbot Selby and a deed pursuant thereto to David M. Carter, the purchaser. In January, 1871, Carter conveyed the land to Benjamin J. Midyett, and the latter and wife, on May 1, 1876 conveyed to Nancy J., wife of W. P. Midyett, (who, as plaintiffs, prosecute the action,) by a deed in which, after designating boundaries, the premises are further described as "the lands conveyed by E. H. Sanderson to Talbot H. Selby, and sold under execution by D. R. Goodloe, U.S. marshal, and conveyed to D. M. Carter, and by said D. M. Carter conveyed to Benjamin J. Midyett by deed dated January 1, 1887, all of which deeds of conveyance are duly registered in the register's office of Hyde county." Then follows this clause of reservation: "The lands heretofore conveyed by Talbot H. Selby to other parties, and by said Benjamin J. Midyett to Samuel M. Mann, and by Joseph S. Mann, are excepted from the operation of this deed." It further appears from the finding of the court, to this end a jury trial having been dispensed with by consent of parties, that Talbot Selby, about the 1st of May, 1868, made to his son Dixon Selby a deed falsely dated in March, 1861, executed in fact after the levy, and before the sale under execution by the marshal, purporting to pass the land in dispute, with intent to defraud the creditors of the grantor. In November, 1875, Selby made a mortgage deed for the land to George...