Carpenter v. . Medford

*499 Smith, C. J., (after stating the case). The controversy is thus narrowed to a single proposition, involving the competency of the evidence to identify the trees, as the subject-matter of the contract, and give it efficiency as an instrument conveying -title to the plaintiffs. It was in form and effect a deed, with all the requirements necessary in passing title, and if the imperfect designation of the trees, upon which it is to operate, can be aided by parol proof, they are ascertained. Although so partaking of the realty as to come under the statute of frauds, as held in Mizell v. Burnett, 4 Jones, 249, and other cases, the contract is in contemplation of a severance of the trees from the land; whereby they would become personalty, and the same rule in respect to certainty of description be applicable. It is very clear that the selection and marking of the trees, accompanying the sale, separates and distinguishes the subject-matter of the contract from all other trees of the same kind upon the premises, so as to transfer the property therein. In Dunkart v. Rineheart, 89 N. C., 354, it was decided, that “ any of my black walnut trees, not exceeding 15 in number, that will girth 8 feet 6 inches in circumference, and .under 10 feet,” there being less than that number on the land, was a sufficient description, with the aid of parol evidence, while it would have been otherwise, if there had been more such trees of the required size. The cases cited in the brief of appellants’ counsel, and other references, sustain the general proposition, that a sale of part of a larger number of articles of personal property, not distinguishable upon the face of the contract, will be operative to pass title, if, at the time, they are separated, and understood by the parties. Goff v. Pope, 83 N. C., 123; Harris v. Woodard, 96 N. C., 232; 1 Greenl. Ev., Secs. 287 and 288. The author last mentioned lays down the general doctrine in these words: “ If the language of the instrument is *500 applicable to several persons, to several parcels of land, to several species of goods,” &c., parol evidence is admissible of any extrinsic circumstances tending to show what person or persons, or what things were intended by the party, or to ascertain his meaning in any other respect,” &c. The language is, of .course, not intended to apply to an indefinite description that fits no property, but where its uncertainty arises from the fact that it fits more than one article of property — and there it is admitted to show which was meant. Richards v. Schlegelmich, 65 N. C., 150. But the ruling in Blakeley v. Patrick, 67 N. C., 40, followed in Spivey v. Grant, 96 N. C., 214, is directly and decisively in point The deed in trust in this case purported to convey ten new buggies out of a larger number on hand, and upon the question of title, PbarsoN, C. J., near the close of the opinion, sums up thus: “ To vest the title or ownership in any particular buggies, it was necessary to set them apart, so as to make a constructive delivery, and effect an executed contract; in the absence of such identification, the agreement, as we have seen, was executory only.” Now, the trees were designated, after examination, by marks of identification, the only way in which it could be done. There is error in the ruling, and the judgment is reversed, in order to a new trial. Error.