Alston v. . Savage

Clark, C. J. As to the first seven exceptions to the admission in evidence of the contract of Savage to Brown of 5 December, 1912, they cannot be sustained. ■ It is conceded that the plaintiffs are entitled to the life interest of John A. Savage, Sr., unless the defendant Brown acquired that interest through the agreement made between Savage, Sr., and Brown of 5 December, 1912, recorded 18 December, 1912. The agreement of John A. Savage, Sr., to Ellis Alston was registered two days later, 20 December, 1912. The plaintiffs contend, however, that the contract between Savage, Sr., and Brown to give a warranty deed to the latter to “a certain tract of land in Louisburg Township, now being advertised for sale, was too indefinite. It is in evidence that there Avas but one paper published at that time in Franklin County, and that that paper carried at the time an advertisement for the sale of the lands in controversy over the signature of John A. Savage, Sr., and that these were the only lands then being advertised for sale. This was sufficient to admit parol testimony to identify the land, Fulcher v. Fulcher, 122 N. C., 101. In Phillips v. Hooker, 62 N. C., 193, the memorandum “to make a deed- for a house and lot north of Kinston” was held sufficient to be aided by a parol proof, it being admitted that the defendant owned but one house in the county. In Spivey v. Grant, 96 N. C., 214, the description was “one horse,” and the mortgagor having only one horse, it was held that the title passed. In Lupton v. Lupton, 117 N. C., 30, the assignment to widow for year’s provision was of “one-half of boat,” and it being proved that the husband had only one boat, this was held insufficient to pass the title. *215 “Where lands can be definitely identified by the aid of parol evidence a deed is not void for uncertainty of description.” Batchelor v. Norris, 166 N. C., 506. To same purport, Patton v. Sluder, 167 N. C., 500; Speed v. Perry, Ib., 122. The contract between John A. Savage and Brown further identified the land by adding: “J. A. Savage, Jr., owns the land in fee simple and has a right to sell it and deed it.” It was in evidence that there was an oral agreement between John A. Savage, Sr., and the administrator of Ellis Alston to sell the land at public auction, and that in pursuance of that agreement said Savage caused the notice, above referred to, to be published in the Franklin Times. The plaintiffs had no conveyance or contract to convey from either of the remaindermen. The contract by the life tenant to convey to Ellis Alston was registered after the contract to convey executed by the life tenant to the defendant Brown, and specific performance could not be decreed. The only remaining question was as to damages against the life tenant for breach of his contract and as to the measure thereof, and under a correct charge by the court the jury have assessed these damages at 25 cents, possibly making allowance for rents and profits received by plaintiffs as against $190 partiál payment made by Ellis Alston. No error.