Perry v. Scott
| Decision Date | 03 December 1891 |
| Citation | 14 S.E. 294,109 N.C. 374 |
| Parties | PERRY v. SCOTT. |
| Court | North Carolina Supreme Court |
Appeal from superior court, Jones county; R. F. ARMFIELD, Judge.
Special proceedings by J. W. Perry against J. K. Scott for the partition of land. Judgment for defendant. Plaintiff appeals. Affirmed.
Where lands are described in a deed as lying in the county of J. "on the south side of Trent river, adjoining the lands of C., M., and others, containing 360 acres, more or less," parol evidence is admissible to identify them. Avery, J., dissenting.
Strong Gray & Stamps, for appellant.
The single question presented for our consideration is whether the description in the deed offered by the defendant is so vague and uncertain as to preclude any testimony whatever tending to fit it to the land in controversy. In other words is it a patent ambiguity, which, according to Lord BACON "is never happen by averment," and in the language of PEARSON, J., entirely "a question of construction" for the court? Institute v. Norwood, Busb. Eq. 65. As the sufficiency of the testimony offered by the defendant is not made the subject of exception, and as such testimony is not set forth in the case upon appeal, it must follow, therefore, that, if we can conceive of any testimony which would with reasonable certainty fit the description to the land in question, the ruling of his honor should be affirmed. The deed of the sheriff reciting a judgment against Daniel Perry, an execution, levy, and a sale under avenditioni exponas, it must, upon every principle of construction, be inferred that it is the land of the said Perry that is sought to be conveyed; and, this being so, we are of the opinion that testimony to the effect that at the time of the sale the said Perry owned but one distinct tract of land in the county of Jones "on the south side of Trent river, adjoining the lands of Colgrove, McDaniel, and others, containing three hundred and sixty acres, more or less," would have warranted the jury in finding that the land had been sufficiently identified. This result, it seems, would have been conceded had the words "bounded" or "bounded by" been substituted for the word "adjoining," and it is earnestly insisted that by reason of this distinction the deed is void upon its face. Without adverting to the presence of the word "bounded" in the first and more general part of the description, and pretermitting the question whether that word may not well be transposed, so as to be construed in connection with the last and more particular language there used, we will proceed to consider the correctness of the contention of the plaintiff. In doing this it is our purpose to avoid a discussion of the general doctrine of description in deeds, believing, as we do, that it is unprofitable, if not dangerous, to anticipate cases that may hereafter arise upon this very difficult and vexatious subject. The principle asserted finds support in what is said in Blow v. Vaughan, 105 N.C. 198, 10 S.E. Rep. 891, and the subsequent decision in the case of Wilson v. Johnson, 105 N.C. 211, 10 S.E. Rep. 895, but upon a very careful examination of the previous decisions of this court,--induced by the reflection that its adoption may materially affect many titles in this state about which there has been and can really be do doubt as to the actual identity of the lands conveyed,--we are satisfied that the distinction mentioned is not sustained, either by reason or authority, and that the overwhelming weight of judicial decision is against it. In view of the very serious consequences that may follow its further recognition, we think that what we conceive to be a mistake should be corrected; and, as PEARSON, C.J., says: Gaskill v. King, 12 Ired. 223. An examination of the case of Blow v. Vaughan, supra, will show that the decision was clearly correct, but that what was said by the learned justice who delivered the opinion, as bearing upon the particular point now under consideration, was unnecessary to the disposition of the appeal. The description in the deed was "fifty acres of land, lying in the county of Hertford, and bounded as follows: 'By the lands of John H. Liverman, John P. Liverman, and Isaac Snipes."' The court held that parol testimony was admissible to fit the description to the land; but, as it appeared that the description embraced a tract of 125 acres, and there was no sufficient testimony to locate any particular 50 acres, it was determined that the land sued for had not been identified. The complaint substituted the word "adjoining" for "bounded," "but it was not insisted," says the opinion, "that there was a fatal variance between the land declared for in the complaint and that embraced in the descriptive clause of the deed offered to show title." The discussion, however, extended to the sufficiency of the complaint; and, while it was said that the description, as there stated, was too indefinite to be susceptible of explanation by parol testimony, it was also explicitly declared that, as the complaint might "have been amended or incorrectly copied," the action would not be dismissed because of the use of the word "adjoining" in the place of the word "bounded," nor because of variance between the allegation and proof; for, continues the opinion, "the point was not made as it might have been." From this it is plainly seen that the statement that the description contained in the complaint was too vague and indefinite was unnecessary to the determination of the appeal, and was in that sense a dictum, and not necessarily binding on the court. It is true, however, that the principle was approved in Wilson v. Johnson, supra, (decided at the same term,) but by a reference to the very brief opinion in that case it will appear that the decision was founded solely upon what was said in Blow v. Vaughan.
Under these circumstances, we feel at liberty to examine into the previous decisions of the court, with a view of determining whether the principle mentioned should remain unquestioned, and become settled judicial authority in this state. The great practical importance of the question must be our excuse for a somewhat extended, and perhaps tedious, examination of the cases upon the subject.
First, let us look into "the reason of the thing," without reference to the authorities. When one has paid out his money and taken a deed for land, it would offend every principle of natural justice to deprive him of his property, unless it is required by some positive rule of law, the strict enforcement of which is imperatively demanded on the ground of public policy. Therefore it is that the courts will not lightly pronounce deeds to be void because of imperfect description if the land can with reasonable certainty be identified; and in the numerous decisions of this court upon the infinite variety of descriptions presented for construction there can be seen but one clear and unwavering purpose in the minds of the judges, and that is, without contravening the statute of frauds, to give effect to the true intention of the parties. Ut res magis valeat quam pereat. In doing this they have found it impossible, as RUFFIN, C.J., once said, to formulate any artificial rules by which in many cases this intention is to be ascertained, and they have necessarily been compelled to resort, in such instances, to those principles of reasoning which commend themselves to men of plain and ordinary understanding. Now, if I own a distinct tract of land, and describe it in a conveyance as a tract of so many acres, more or less, "adjoining the lands of A., B., C., and others," would it occur to any layman of common intelligence that the description was so vague and indefinite on its face that it would be useless to attempt to identify it? And if it were shown that I owned but one tract adjoining A., B., C., and others, and that I had no other lands whatever, or none adjoining those parties, would he not be astonished, when told that the deed furnished no means by which the land could be identified, and that on account of the use of the word "adjoining," instead of "bounded" or "bounded by," it conveyed nothing whatever? We think it would be a troublesome task to make him understand why, in such a case, these latter words are necessary, while he could very readily appreciate their significance if the land described was not a distinct tract, or was ) a part of a larger tract. In such cases the words mentioned, or others of similar import, might become very material; but we repeat that it is not easy to understand how they are so important in the case put by way of illustration. Neither would the argument in Harrell v. Butler, 92 N.C. 20, be appreciated, for it cannot be seen how such a description would apply (as issaid in that case) "to one tract as well as another that adjoins" them, when there is only one tract belonging to the grantor that does so adjoin them; nor can it be understood what difference it makes whether this one distance tract might "lie as well on the one side as the other of the lands belonging to those persons. That the description we have mentioned is not so vague and indefinite as to exclude the introduction of parol testimony to fit it to the land is, we think, well sustained by the very great preponderance of the decisions in this state. But, before referring to these, we will examine the cases cited in support of the contrary view.
In Horton v. Cook,...
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