S.S. Harrell & Co. v. Butler

• Decision Date: 28 February 1885
• Citation: 92 N.C. 20
• Court: North Carolina Supreme Court
• Parties: S. S. HARRELL & CO. v. DAVID BUTLER.

92 N.C. 20

S. S. HARRELL & CO.

v.DAVID BUTLER.

Supreme Court of North Carolina.

February Term, 1885.

ISSUES joined in a special proceeding for partition before Clerk of HERTFORD Superior Court, and tried before Shepherd, J., at Spring Term, 1883.

This was a special proceeding for the partition of land instituted before the Clerk of the Superior Court of Hertford county.

The plaintiffs in their complaint claimed four-fifths of the land in question, and the defendant, in his answer, alleged that he was entitled to two-fifths and the plaintiffs to only three-fifths, and thus issues of law and facts were raised by the pleadings, which were transmitted to the Superior Court in term to be tried.

The only issue submitted to the jury was whether the defendant was entitled to only one-fifth, as admitted by the plaintiffs, or to two-fifths, as contended by the defendant.

On the trial it was admitted by the defendant that the verdict should be in favor of the plaintiffs, unless the defendant should show that he had a better title to the disputed one-fifth than the plaintiffs.

The defendant, in support of his title, offered in evidence a deed made by James Butler to David Butler, conveying “ all of his interest in a piece of land adjoining the lands of J. J. Jordan, Joseph Keen and others.”

The conclusion of this deed was as follows:

“In testimony whereof I, the said James Butler, have hereunto set my hand and seal, this the 20th day of November, 1880.

JAMES his X mark BUTLER.

Witnessed by

JOHN P. BUTLER, [SEAL.]”

If the deed passed any title to the land in question, it was conceded the defendant was entitled to two-thirds of it; but its introduction was objected to by the plaintiffs--upon two grounds. First, because it was too vague and uncertain to convey real estate and it was void, and that it was not susceptible of being made certain by parol evidence; and, secondly, that the deed was not under the seal of James Butler.

The Court overruled both objections, and admitted the deed in evidence, and also parol evidence to fit the description to the land in dispute. To which the plaintiffs excepted. The jury found in favor of the defendant, and there was a judgment in his behalf, from which the plaintiffs appealed.

Messrs. Winborne & Brother, for the plaintiffs .

No counsel for the defendant.

ASHE, J., after stating the case as above:

The decisions of the Court upon the question, whether a defective description of land contained in a deed is too vague and uncertain to admit of parol evidence to “fit the description to the thing” lie so closely to the line of distinction between what is too uncertain and what is not so, that we find it somewhat difficult to reconcile them.

But upon a careful examination of the adjudications upon the subject, we are led to the conclusion that the deed in question executed by James Butler to David Butler, falls within the class of deeds that are too vague to admit of extrinsic evidence to identify the land.

In Farmer v. Batts, 83 N. C., 387, the description is, “One tract containing one hundred and ninety-three acres, more or less, it being the interest in two shares, adjoining the lands of James Barnes, Eli Robbins and others,” and it was held that the description was not too indefinite to admit of parol evidence to identify the land. But in the case of Dickens v. Barnes, 79 N. C., 490, the land was described as one tract of land lying and being in the county aforesaid, adjoining the lands of A and B, containing twenty acres, more or less; and it was held the description was insufficient and could not be aided by parol proof.

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