Duckett v. . Lyda

BaeNhill, J. "While there are numerous exceptions in tbe record they present only two questions for decision: (1) Is tbe description in tbe J. A. Hogan deed to Bertie Hogan too vague and indefinite to admit of extrinsic evidence to fit tbe description to tbe land intended to be conveyed; and (2) is defendant, as surviving tenant by entirety, seized of tbe second tract — Lot No. 2 of tbe Charles Hogan land? It is presumed tbat tbe grantor in a deed of conveyance intended to convey something, and tbe deed will be upheld unless tbe description is so vague or contradictory tbat it cannot be ascertained what thing in particular is meant. Proctor v. Pool, 15 N. C., 370; Lee v. Barefoot, 196 N. C., 107, 144 S. E., 547. But this intent must be ascertained from tbe description contained in tbe deed, which must set forth a subject matter, either certain in itself or capable of being reduced to a certainty by a recurrence to something extrinsic to which tbe deed refers. Massey v. Belisle, 24 N. C., 170; Wharton v. Eborn, 88 N. C., 344; Peel v. Calais, post, 368. Tbe description must identify tbe land or furnish tbe means of identifying it under tbe maxim id certum est quod cerium reddi potest. Dickens v. Barnes, 79 N. C., 490; Self Help Corp. v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889, and cases cited; Peel v. Calais, supra. When tbe description is not sufficient in itself to denote tbe land conveyed resort may be bad to extrinsic evidence if tbe deed furnishes tbe means of identification. Kea v. Robeson, 40 N. C., 373; Harrell v. Butler, 92 N. C., 20; Self Help Corp. v. Brinkley, supra; Peel v. Calais, supra. But evidence dehors tbe deed is admissible to “fit tbe description to the thing” only when it tends to explain, locate, or make certain some *359 call or descriptive term used in the deed. It is the deed that must speak. The oral evidence must only interpret what has been said therein. Self Help Corp. v. Brinkley, supra, and cases cited. Adverting to the description in the J. A. Hogan deed, in the light of these principles, we are of the opinion that it contains calls and references sufficient to make it susceptible of identification. It may be made definite and certain by evidence dehors the deed. This we think the plaintiffs have done. The calls are for natural boundaries — the road and J. A. Hogan’s line — and, if the beginning point is ascertainable, they are such as to describe a tract of land triangular in shape. The beginning point is “on a stake in the center of the public road in G-. W. Yanderbilt and Mitchell Taylor line.” Plaintiffs offered evidence tending to show that Yanderbilt owned land on the east side of the public road and Taylor owned property on both sides. The Yanderbilt line crosses or intersects the Taylor line in the public road. “The Yanderbilt and Taylor line crosses the public road where it comes into a Y-shape, the Taylor line running this way and the Yanderbilt line comes to the corner and makes a perfect square. The Taylor line runs right into it and goes on into the woods.” Hence a stake here in the public road where these lines intersect is in both lines. It is a definite, certain, and ascertainable point. The evidence likewise locates the J. A. Hogan line. The beginning point and the Hogan line being established, as found by the court below, the calls are definite and enclose the first tract as claimed by the plaintiffs. Furthermore, the defendant’s wife went into possession under the deed and made improvements thereon, claiming it as her own. There is ample evidence in the record to sustain the finding of the court below that the deeds interchanged by the heirs of Charles Hogan for parcels of his land were in fact partition deeds. This being tru'e the conclusion that the defendant took nothing under the deed to him and his wife for the share allotted to her is clearly in accord with the decisions of this Court. The subject was fully discussed, with the citation of numerous authorities, at the last term of this Court. Wood v. Wilder, 222 N. C., 622. Repetition at this time would be supererogatory. In ejectment, evidence that a party is or has been “in possession” or “went into possession” of the premises is admissible. Bryan v. Spivey, 109 N. C., 57, 13 S. E., 766; Berry v. McPherson, 153 N. C., 4, 68 S. E., 892; Gross v. R. R., 172 N. C., 119, 90 S. E., 14. Defendant’s exceptions to this type of evidence offered by plaintiffs cannot be sustained. *360 We bave examined tbe other exceptive assignments of error. They fail to point out any substantial error in tbe trial. Tbe judgment below is Affirmed.