Cox v. . Cox

Ashe, J. The defendants rested their defence upon two grounds; first, that the devise to Thomas Cox,. Jr., was void *261 for uncertainty.; and secondly, that ejectment was not the .proper remedy. His Honor expressed no opinion upon the first point, but intimated the opinion that the plaintiffs could not recover, for the reason there had been no division of the land of the testator under the -will,-and no proceedings ever had to establish the lines between the sons of the testator. In this there was-error. The lands of the testator were divided by the will itself. They were apportioned out among .all the testator’s children, and each one’s share designated and assigned to him. There could have been no further division among them, for there was no unity of possession between them in any -one. of the tracts devised. This was •evidently one way by which the dividing line between Thomas Cox and his brothers, Rufus and Joseph, could be ■established, to wit, by an action in nature of ejectment. But His Honor took that question from the jury by the intimation of -the opinion which drove the plaintiffs to a nonsuit. We might stop here and award to the plaintiffs a venire de novo, to which they .are entitled. But as the case will be .again tried, and the other ground of defence, taken by 'the •defendants on the last trial, will probably be again pressed, we deem it advisable to consider that point, as it has been the principal subject of contention in the argument before this court. There can be no doubt the testator, Thomas Cox,’ Sr., intended to divide out his lands among all his children, and that his son, Thomas Cox, jr.„, should have as his share, two hundred acre§, to be located on the north of the lands •devised to his two brothers, Rufus and Joseph, But they and the other -defendants undertake to thwart the will of their father by insisting that their brother Thomas, by reason of the uncertainty in the description of the land devised to him, took under the will of the testator only the eighty-two acre tract. This position cannot be maintained, *262 for we are of opinion the description of the land devised to him, though somewhat imperfect and left in doubt, is yet sufficiently certain to admit of parol proof to fix its location and boundary -r or, in other words,, to fit the description to■ the thing. The only difficulty in the case is in the line which begins at 'the line near A, K, Wicker's and runs straight across to the back line towards Torguill McNeill’s. Wherever that line is, the land devised- to Thomas Cox lies north of it, for the description is two- hundred acres adjoining bis (Thomas Cox’s) land taking in the eighty-two acres, and the beginning is in the lower line of that tract, between the figures 1 and 2,_ that being the line near Wicker’s and runs straight across to ward Torguill McNeill’s land. The call for the beginning at the line near Wicker’s is answered by beginning at figure 2 on the plat. The call in the devise is, for a beginning at the line near A. I£. Wicker’s. The line from 1 to 2 is a line near Wicker’s land. The will does not say Wicker’s house. Then’beginning at figure 2, which is the end of the.line, the call in the devise is answered, for every corner is at the termination of two lines when they meet, and' may be said to be at each of them. To begin at any intermediate point in the line from 1 to 2, and run straight across to the back line so as to include two hundred acres would necessarily cut off an angle of the eighty-two acre tract, but the whole of that tract is to be taken in first. Figure 2 then being established as the beginning, the line that runs thence straight across to the back line towards McNeill’s must cross the creek, for the southern portion of the eleven hundred and forty acres devised to Joseph Cox is described as bounded on the east by the creek and running up the creek to where Thomas Cox’s line crosses. *263 Where the description is constituted of certain localities and specifications, the location of the land must correspond with them. Here, we have the Cox tract; the eighty-two acres which is to be included; the line from 1 to 2 where the beginning is to be fixed ; the line from 2, running across the creek to McNeill’s land ; and lastly, the quantity — two hundred acres. Quantity ordinarily constitutes no part of a description, but in doubtful cases it becomes an important element: In Reddick v. Legget, 3 Mur. 529, Judge Henderson said, it is in no way material, except in lands where the. boundaries are doubtful, and then it may be thrown into the one scale or the other as a circumstance. In Proctor v. Pool, 4 Dev., 370, Chief Justice Rueein said, it is true that quantity is not generally descriptive, but it may be so ; as if one owns two town lots, one of half an acre and the other of an acre, and grant his- acre lot, the larger lot will pass, though a few feet more or less than an acre. In the case of Stewart v. Salmonds, 74 N. C, 518, where the plaintiff’s claim was twenty-nine acres of the north side of a tract of land containing one hundred and twenty-nine acres, Chief Justice Pearson, speaking for the court, said : “ Any competent surveyor can do it by running an experimental line on the plat, strike a line east and west, calculate the number of acres north of the line ; if over twenty-nine acres, move the line to the north, if less than twenty-nine acres, move the line to the south until jmu take in exactly twenty-nine acres, then go into the field and with compass and chain and by means of the experimental lines find the east and west line, that will cut off twenty-nine acres and make it.” He adds, “ this may be a rude way of doing the thing, but the twenty-nine acres may be identified with sufficient certainty for all practical purposes.” *264 This is what the surveyor has done in this case. Here, as there, the quantity oí.acres was an important element in the description. Here, as there, experimental lines were run by the surveyor with the view of ascertaining a line from the beginning in the line near Wicker’s to the Mc-Neill land that would give two hundred acres of land north of that line. But no such line could be established as the true dividing line unless the land lying north of it, and sought to be located, should answer all the specifications in the description of the devise; e. g„ it must give the Cox tract; include the eighty-two acre tract; contain two hundred acres; and the line must begin at the line near Wicker’s, and cross the creek to .McNeill’s land. The surveyor ran the lines “ A ” “B” “O ” and “ D ” as designated on the plat. The line “ A ” gave the plaintiff two hundred and fifty acres, and did not cross the creek. That could not be the true line, because it wanted two elements in the description. Line “ C” could not be the line, because it did not begin on the line near Wicker’s, and therefore lacked one element of the description. Line “D ” is out of the question. Line “B” gives just the two hundred acres with each of the other specifications in the description contained in the devise, and must therefore be the line. ■ “B” being established as the dividing line between the Thomas Cox portion and those devised to Rufus Cox. and Joseph Cox, it is a question for ,the jury whether the defendants or any of them are in possession of any of the two hundred acres devised to Thomas Cox, Jr., lying north of that line. There is error. Let this be certified.to the-superior court ■qf Moore county that a venire de novo may be awarded. Error. Venire de novo.