Steadman v. . Taylor

RobmaN, J. A purchaser at a sale by an Assignee in “Bankruptcy stands on the same footing with a purchaser at execution sale. Carr v. Fcarington, 63 N. C. 560. He takes the estate of the bankrupt subject to all equities against it, and it is settled in this State, that it is immaterial whether he knows of them or not. In this case however the plaintiff had notice of the equity of the defendant. He knew that he was living 'on the land and that he claimed to have bought it of Ford before his bankruptcy. Before a plaintiff can recover in what for brevity and .convenience we may still call an action of ejectment., he ¿must show a good title in himself; at least a good legal title. This it is conceded that the plaintiff* has shown in this case. The defendant sets up in his defence an equitable title ■«under a contract by Eord to convey to him the land in con-troversy, and a payment in full to him some years bef®re his ■¡bankruptcy. The writings b}r which the contract is. proved are imperfect and obscure in the description of the land agreed to be monveyed. In the receipt of November 28th, 1863, it is de■,scribed as “one hundred acres of land commencing at the «corner I sold Eayette Briscoe, and round near William Splawn’s including the head of the branch that runs near Splawn’s house.” The plaintiff contends that this description is so uncertain -that the agreement to convey — for the receipt is by necessary intendment an agreement to convey — is void-and can-rjiot be made certain by parol evidence. ’ The Judge below *136 held that the agreement was not void and that the description might be made certain by evidence outside of the writing. In this we concur with the Judge. Evidence to vary or add to the words of the writing was-clearly inadmissible and this was not proposed. Clearly parol evidence is admissible to show that a particular object fits the description in a writing. It may be shown where-Briscoe’s corner is, and where his lines, and Splawn’s house,- and the head of the branch that runs by his house, all are. One who like myself has no knowledge of the relative situation of these objects, is unable to form any idea of the shape-of a piece of land which might be described by and upon them. If, however, I had a map on which these points were-. laid down as they exist on the face of the earth, it may be-that I could discern with certainty the boundaries of the-land which Eord agreed to convey to the defendant. Never except where the ambiguity is patent, will the law declare a deed void for uncertainty of description until every means-have been used to find some object which the description fits. The parties certainly had some certain ¡Diece of land in their minds which one intended to buy andthe other to sell;: and it can rarely happen that they have not given some indication by which the individuality of the piece may be ascertained. The evidence-which the Judge allowed, and th& jury thought sufficient for that purpose consisted of the testimony of Eord and the circumstances of the case. Eord testified that the land he sold to Taylor embraced the 73-acres in controversy, and that “by commencing at Briscoe’® corner and running round near William Splawn’s so as to include the head of the branch that runs by William Splawn’® house, 100 acres could be laid off including the 73 acre-grant, and that this was what Taylor purchased.” The circumstances tending to show that this 73 acre grant was a part of the land, were that it -was described by definite-boundaries in the grant to Eord, and that shortly after his- *137 purchase of land from Eord, the defendant went upon this piece and built on and otherwise improved it, and remained there without afty complaint from Eord, for five or six years before his bankruptcy. Eord would not have been competent to state what he intended to convey, and he does not appear to have been allowed to state that. It seems to us that the evidence which he gave was competent. It would have been more satisfactory if, he had shown on a map how lines, run from the points and in the manner described in the receipt, would have included the land as he says they would have done. But we cannot say that his evidence was not such as would fairly justify a jury in finding that the receipt covered the land. And if there was in a legal sense any• evidence to support the verdict, this Court cannot grant a new trial merely upon the ground that it did not put the question beyond a reasonable doubt. We have so far considered the case as if it were in a Court of law, except that we have given to a contract to convey, the effect which a Court of law would have given to an executed conveyance of the land by the same description. But this is not all that the defendant would have been entitled to, if by proper-pleading he had set up his executory title against the plaintiff as the assignee of Eord with notice, and. demanded a-specific performance. It cannot be doubted that he would have been entitled to-such a decree against Ford, for Ford testifies that the land, in dispute was the land which he agreed to convey. It is-true that Ford’s statement would not have been competent against the plaintiff merely as an admission by Ford, because-it was made after Ford had parted with his estate. But as testimony, it is competent and when it appears by any competent testimony that Ford received pay for this land and thought he sufficiently described it in his agreement to convey, and saw the defendant go into possession of it in the-.-belief that he had a title, and improve it for five -years,. *138 •during all which time he was silent and acquiescent, it can ■not be doubted that Ford would be estopped in equity from ■.setting up any claim to the piece of land, although by acei-•dent it was not described in the contract so as to be identi-fted^by the description. And if Ford would be so estopped, •the plaintiff who stands in Ford’s shoes is equally estopped. No error. Per Curiam. Judgment affirmed.