Peel v. Calais
| Decision Date | 20 September 1944 |
| Docket Number | 20. |
| Citation | 31 S.E.2d 440,224 N.C. 421 |
| Parties | PEEL et al. v. CALAIS et al. |
| Court | North Carolina Supreme Court |
Petition for partition in which the defendants answered pleading sole seizin. The plaintiffs are heirs at law of one R. C. Peel, deceased. The defendants claim title to the land in question by mesne conveyances from Samuel Peel, one of the children of R. C. Peel.
In 1910, R. C. Peel owned a tract of land in Beaufort County on the south side of the Military Road and extending to a line 60 feet north of the high-water mark of Pamlico River. His father devised to him the adjoining strip of land 60 feet wide bounded on the north by the first tract and on the south by Pamlico River. Thus he owned all the land lying between Military Road on the north, the John Peel land on the east Pamlico River on the south, and the Griffin land on the west.
On December 28, 1910, Peel conveyed to his daughter a tract of land containing 20 acres, being approximately the middle third of the first tract and extending over into the second tract 30 feet. On the same date he executed and delivered to his son, Samuel Peel, a deed containing the description as follows: 'In Beaufort County, N. C., adjoining lands of John Peel, Griffin and others, bounded as follows: Beginning on Griffin's line 30 ft. from the high-water mark; thence an easterly course, 30 ft. from the water to John Peel's line; thence beginning at a stake on this line 300 ft. from John Peel's line and running a northerly course to the Military Road, to a stake 300 ft. from John Peel's line thence with said line to the river, containing 22 acres more or less.'
The petitioners, contending that R. C. Peel died intestate seized and possessed of the second tract 60 feet wide extending along the banks of the Pamlico River, instituted this action for the partition thereof. Said tract is described in the will of George Peel and in the petition as follows: 'A strip of land lying on Pamlico River, and running back from said river a distance of (60) feet, bordering on the east by the land conveyed by me to John B. Peel, on the north by my own land; on the west by Ellen Griffin land; and on the south by Pamlico River.'
On a former appeal, Peel v. Calais, 223 N.C. 368, 26 S.E.2d 916, this Court reversed judgment of nonsuit and remanded the cause for a new trial.
When the cause against came on for trial in the Court below, the documentary evidence relating to the title was offered. In addition thereto, defendants offered evidence tending to show that 'the high-water mark' referred to in the deed of R. C. Peel to Samuel Peel related to the high-water mark of Pamlico River; that the Griffin property bounded the whole tract, made up of the two parcels, on the west from Pamlico River to Military Road, and that the John Peel land bounded the whole tract on the east from the river to the Military Road. Issues were submitted to and answered by the jury as follows:
'1. Does the Deed of R. C. Peel and wife Medora Peel, to Samuel Peel, dated December 28, 1910, registered in Book 167, page 68, embrace and convey the land in controversy, indicated on the Lewis map by the figures 2-9-8-1? Answer: Yes.
'2. Do the mortgage deed made by Carnie Bullock to H. B. Thompson registered in Book 250, page 472, and said Thompson's foreclosure deed to Medora Peel, registered in Book 274, page 280, embrace that portion of the land in controversy indicated on the Lawis map by the figures 6-9-8-X; and do said mortgage and deed convey all right, title and interest that Carnie Bullock may have had in that part of the land in controversy so indicated on the Lewis map by the figures 6-9-8-X? Answer:
'3. Have the defendants for more than seven years next before the commencement of this action been in the open, notorious, continuous, adverse possession, under known and visible lines and boundaries and under colorable title, of that part of the land in controversy as indicated on the Lewis map by the figures 2-6-X-1? Answer:'
The record discloses that the Court also prepared a separate set of issues, some of which were answered by it, as follows:
'1. Does the deed of R. C. Peel and wife, Madora Peel, to Samuel Peel, dated December 28, 1910, registered in Book 167, page 78, embrace and convey the lands in controversy, indicated on the Lewis map by the figures 2-9-8-1? Answer: (Submitted to jury on separate paper.)
'2. If not, does the deed of R. C. Peel to Madora Peel, dated February 21, 1940, recorded in Book 219, page 273, embrace and convey that part of the land in controversy indicated on the Lewis map by the figures 2-6-X-1? Answer: Yes, by the Court.
'3. Does the deed of Madora Peel and Samuel Peel and wife to Isabelle C. Calais, dated March 4, 1932, registered in Book 290, page 591, embrace that part of the land in controversy indicated on the Lewis map by the figures 2-6-x-1; and does said deed convey all right, title and interest which Madora Peel may have had in said portion of the land in controversy so indicated by the figures 2-6-x-1? Answer: Yes, by the Court.
'4. Have the defendants for more than seven years next before the commencement of this action been in the open, notorious, continuous adverse possession, under known and visible lines and boundaries and under colorable title, of that part of the land in controversy as indicated on the Lewis map by the figures 2-6-x-1? Answer: (Submitted to jury on separate paper.)
'5. Do the mortgage deed made by Carnie Bullock to H. B. Thompson, registered in Book 250, page 472, and said Thompson's foreclosure deed to Madora Peel, registered in Book 274, page 280, embrace that portion of the land in controversy indicated on the Lewis map by the figures 6-8-8-X; and do said mortgage and deed convey all the right, title and interest that Carnie Bullock may have had in that part of the land in controversy so indicated on the Lewis map by the figures 6-9-8-X? Answer: (Submitted to jury on separate paper.)
'6. Does the deed of Madora Peel and Samuel Peel and wife to Isabelle C. Calais, dated March 4, 1932, and registered in Book 290, Page 591, embrace that part of the land in controversy indicated on the Lewis map by the figures 6-9-8-X; and does said deed convey all the right, title and interest which Madora Peel may have acquired under the mortgage of Carnie Peel and the foreclosure deed of H. B. Thompson, mortgagee in and to that portion of the land in controversy indicated on the Lewis map by the figures 6-9-8-X? Answer: Yes, by the Court.
Upon the coming in of the verdict, judgment was entered decreeing that plaintiffs have no right, title or interest in or to the land in controversy. Plaintiffs excepted and appealed.
John H. Bonner and H. S. Ward, both of Washington, for plaintiffs-appellants.
Grimes & Grimes and Rodman & Rodman, all of Washington, for defendants-appellees.
The particular description in the Samuel Peel deed, as it relates to the land in controversy, is patently defective. Peel v. Calais, 223 N.C. 368, 26 S.E.2d 916. There are two lines which may be fitted to the land in controversy but there is no attempt to close the calls so as to embrace the same. The defendants must resort to the general description 'a certain tract of land in Beaufort County, N.C., adjoining the land of John Peel, Griffin and others.' Hence the exceptions entered by plaintiffs and presented on this appeal challenge the sufficiency of the evidence aliunde to support the verdict on the first issue.
G.S. § 8-39, C.S. § 1783, authorizes parol evidence to identify land sued for and to fit a vague description contained in the muniment of title to the land alleged to be conveyed thereby. Even so, it was held in Blow v Vaughan, 105 N.C. 198, 10 S.E. 891, and Wilson v. Johnson, 105 N.C. 211, 10 S.E. 895, that descriptions of land such as 'adjoining the lands of A, B, and others, containing 25 acres more or less' are too vague and indefinite to be aided by parol proof. Following these decisions the Legislature in 1891 enacted Chapter 465 P. L. 1891 (now G.S. § 39-2) and this Court, independently of the statute, in Perry v. Scott, 109 N.C. 374, 14 S.E. 294, disapproved the decisions in these two cases and expressly held that a general description giving the boundaries of the tract of land is not too vague to permit the reception of parol evidence to explain, locate, or make certain...
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