Norton v. Smith

• Decision Date: 12 May 1920
• Docket Number: 508.
• Citation: 103 S.E. 14,179 N.C. 553
• Parties: NORTON v. SMITH.
• Court: North Carolina Supreme Court

103 S.E. 14

179 N.C. 553

NORTON v. SMITH.

No. 508.

Supreme Court of North Carolina

May 12, 1920

Appeal from Superior Court, Alexander County; Long, Judge.

Action by W. H. Norton against J. A. Smith. Judgment for plaintiff and defendant appeals. No error.

Plaintiff brought this action to recover damages for the breach of a contract for the sale of land. The defense was that the description of the land was too uncertain and indefinite and the contract is therefore void. The land was described as follows:

"Whereas J. A. Smith has sold to W. H. Norton his entire tract or boundary of land consisting of 146 acres on the following conditions, * * * payments to be secured by notes and mortgage on said land, with interest from date of transfer. Said Norton is to pay to said Smith $12,000 sum total in all, $200.00 cash in hand on the above amount, the receipt of which is hereby acknowledged, $4,800.00 to be paid when deed is made and delivered, not later than Oct. 10, 1918 balance, in payments of $2,000 on Jan. 1st of each year commencing Jan. 1, 1920, till last payment, which would be $1,000 Jan. 1, 1923. Said J. A. Smith is to have all the cultivated crops this year. Smith is to have dwelling till he gets his tobacco crop worked off, which will be about January 1st, or as soon thereafter as possible."

The jury returned the following verdict:

(1) Did the defendant make the written agreement with the plaintiff to sell his entire tract or boundary of land containing 146 acres to the plaintiff, as alleged in the complaint? Answer: Yes.

(2) Did the defendant afterwards refuse to convey the said land to the plaintiff, as alleged? Answer: Yes.

(3) What damage, if any, is the plaintiff entitled to recover? Answer: $1340.00.

Judgment on the verdict, and the defendant appealed.

J. H Burke, of Taylorsville, F. A. Linney, of Boone, and L. C. Caldwell, of Statesville, for appellant.

W. A. Self, of Hickory, John Gwaltney and James Alexander, both of Taylorsville, and H. P. Grier, of Statesville, for appellee.

WALKER, J. (after stating the facts as above).

There was evidence tending to show that the defendant owned but one tract of land, and had listed for taxation only one tract, which was the land occupied by him as a home; that it contained exactly 146 acres; that he had lived there 10 or 11 years; the land is about one mile from Stony Point, where the contract was made; it has his dwelling on it, and defendant raised tobacco there. It appears to be a well-known place, and the only one the defendant owned. It is admitted, in the answer, that the defendant refused to convey any land to the plaintiff. Defendant alleged in his answer that the contract is void, because the description is not a sufficient compliance with the statute of frauds (Revisal, § 976), which is specially pleaded in bar of the right to recover. Upon this plea, the judge charged correctly as to the law, and the jury has found against him as to the facts.

The description is sufficient for the admission of parol evidence to identify the land, or to fit it to the land intended to be sold and conveyed. The contract described it as the defendant's "entire tract or boundary of land," and further as "consisting of 146 acres." It was not a part of another tract, but was a separate and distinct tract. It was the same as if J. A. Smith had described it as "his 146-acres tract of land." It also appears by the evidence to be the tract he was cultivating in tobacco that year, and to have had more than one dwelling. But the fact that he owned only one tract, and that it contained 146 acres, was sufficient to identify it as the land the defendant contracted to convey. Carson v. Ray, 52 N.C.

609, 78 Am. Dec. 267 is exactly in point. There the description was "my house and lot in the town of Jefferson," and it was held that it would "undoubtedly" be sufficient if in a will, to pass the testator's house and lot, in the absence of any proof to show that he had more than one. If, then, such a description would be sufficiently certain in a will, we cannot perceive any reason why it should not be so in a deed, as, in both instruments, the only requisite, as to the certainty of the thing described, is that there shall be no patent ambiguity in the description by which it is designated. A house and lot, or one house and lot in a particular town, would not do, because too indefinite on the face of the instrument itself. See Plummer v. Owens, 45 N.C. 254; Murdock v. Anderson, 57 N.C. 77. But "my house and lot" imports a particular house and lot, rendered certain by the description that it is one which belongs to me, and, upon the face of the instrument, is quite as definite as if it had been described as the...