Peel v. . Calais

BabNiiill, J. The particular description in the Samuel Peel deed, as it relates to the land in controversy, is patently defective. Peel v. Calais, 223 N. C., 368. There are two lines which may be fitted to the land in controversy but there is no attempt to close the calls so as to embrace the same. The defendants must resort to the general description “a certain tract of land in Beaufort County, N. 0., adjoining the land of John Peel, Griffin and others.” Hence the exceptions entered by plaintiffs and presented on this appeal challenge the sufficiency of the evidence aliunde to support the verdict on the first issue. G. S., 8-39; C. S., 1783, authorizes parol evidence to identify land sued for and to fit a vague description contained in the muniment of *425 title to tbe land alleged to be conveyed thereby. Even so, it was held in Blow v. Vaughn, 105 N. C., 198, 10 S. E., 891, and Wilson v. Johnson, ibid., 211, 10 S. E., 895, that descriptions of land such as “adjoining tbe lands of A, B, and others, containing 25 acres more or less” are too vague and indefinite to be aided by parol proof. Following these decisions the Legislature in 1891 enacted Chapter 465, Public Laws 1891 (now G-. S., 39-2), and this Court, independently of the statute, in Perry v. Scott, 109 N. C., 374, 14 S. E., 294, disapproved the decisions in these two cases and expressly held that a general description giving the boundaries of the tract of land is not too vague to permit the reception of parol evidence to explain, locate, or make certain the calls or descriptive terms used in the deed, but never to enlarge, supplement, or add to the same. Subsequent opinions of this Court, applying the principles enunciated in the Perry case, supra, and the proviso of the statute, G. S., 39-2, O. S., 992, have established well-recognized rules controlling decision as to the sufficiency of parol evidence offered in aid of an ambiguous general description and to fit such description to the land in controversy. When land is described as adjoining or being bounded by certain other, tracts, and (1) there are certain other identifying terms such as “known as the Sellars tract,” Euliss v. McAdams, 108 N. C., 507, 13 S. E., 162, “a part of the Mary A. Bissett estate,” owned by grantors, Bissette v. Strickland, 191 N. C., 260, 131 S. E., 655, “the Abby Dough tract,” Bailey v. Hayman, 218 N. C., 175, 10 S. E. (2d), 667; or (2) there are references to an identifiable muniment or source of title such as “the same land that James Peel conveyed to B[iram Edgerton by deed,” Moore v. Fowle, 139 N. C., 51, 51 S. E., 796, “being the land conveyed by E. W. Davis to Joseph Morton et al.,” school committee, etc., Hudson v. Morton, 162 N. C., 6, 77 S. E., 1005; or (3) the land is designated by such terms as the “Home Place” of grantors, Lewis v. Murray, 177 N. C., 17, 97 S. E., 750, “my farm,” Sessoms v. Bazemore, 180 N. C., 102, 104 S. E., 70; or (4) adjoining landowners are named and it is shown that the grantor does not have any other land in the same vicinity which at all corresponds to or may be embraced within such bounds, G. S., 39-2; Perry v. Scott, supra; Patton v. Sluder, 167 N. C., 500, 83 S. E., 818; Self Help Corporation v. Brinkley, 215 N. C., 615, 2 S. E. (2d), 889, the description is not void for vagueness and it may be aided by parol evidence. When, however, the general description would apply to one tract as well as to another, or the land in controversy is not a distinct tract, or is a part of a larger tract, the description is void and cannot be aided by evidence aliunde. Perry v. Scott, supra, and cases cited; Katz v. Daughtrey, 198 N. C., 393, 151 S. E., 879. *426 At all events, the description as it may be explained by oral testimony must identify and make certain the land intended to be conveyed. Failing in this, the deed is void. Other authorities are gathered and discussed in the following cases: Euliss v. McAdams, supra; Stewart v. Cary, 220 N. C., 214, 17 S. E. (2d), 29; Self Help Corporation v. Brinkley, supra; Bailey v. Hayman, supra. Consideration of the general description relied on by defendants in the light of these principles of construction leads us to the conclusion that it has not been aided or explained by the oral testimony so as to fit it to the locus in quo. The description contains no identifying term other than two adjoining tracts. It may be fitted to the whole tract or to the tract first conveyed to R. C. Peel as well as to the locus. Katz v. Daughtrey, supra. The property in controversy is not the only land which would at all correspond to the description contained in the deed. The deed does not purport to convey two separate tracts of land. Yet the disputed river tract is separated and cut off from the main body of land therein conveyed by the first call for a line from a point in the Griffin line to a point in the John Peel line. Under the circumstances of this case, the acreage call is not of material significance. The tract on Military Road conveyed in the deed contains 20.41 acres and that tract together with the disputed land is less than twenty-two acres. While acreage may at times be material, it is not sufficient here to overcome the vagueness and uncertainty in other respects. When R. 0. Peel conveyed a part of his land to his daughter and a part to his son Samuel Peel, he reserved the western section. Later he conveyed this part from Military Road to the'river and including more than one-third of the disputed tract to his wife Medora. This, it would seem, indicates a lack of intent to include the river tract in the Samuel Peel deed. The indicated defects are of such nature as to render the description entirely too vague and uncertain to permit the conclusion that it includes the thirty-foot strip on the river. It follows that the court erred in declining to give the peremptory instruction on the first issue requested in apt time by plaintiffs. The court answered the third of the issues prepared for its own use “Yes.” Exception thereto cannot be sustained. In 1932 Samuel Peel and wife and Medora Peel executed deed to Isabelle Carter Calais in which the description includes the thirty-foot strip on the river. This deed clearly embraces the land between the points 2-6-X-l on the map. This is a part of the land conveyed to Medora Peel by R. C. Peel in 1920. *427 But plaintiffs insist tbat the fee simple title thereto vested in Medora was not conveyed. This contention is based on language contained in the deed as follows: “Medora Peel for and in consideration of $5.00 hereby joins in the execution of this deed for the purpose of releasing the above tract of land from a certain indebtedness to her, which is duly registered in the office of Begister of Deeds of Beaufort County and also to release any right, title and interest she may have therein.” This language is not only sufficient to release her indebtedness against the land described, a part of which she did not own, but also to convey all right, title and interest she had in the premises. Certainly it is not in conflict with the general granting clause in the deed. As, on this record, she owned the land indicated in the issue, 2-6-X-l on the Lewis map, her deed conveyed quitclaim title thereto. Issue No. 4 on the list prepared by the court for its own use, being No. 3 on the list submitted to the jury, was not answered either by the court or the jury. Exception thereto presents no question for decision. Adverse possession, even under color of title, does not ripen title as against tenants in common under twenty years. Even so, we only review decisions of the trial courts. Hence the plea of ownership by adverse possession under the deed of 1932 from Samuel Peel and others to Isabelle Carter Calais remains open for future determination. Por the reasons stated, the judgment entered must be vacated and the cause remanded for further proceedings in accord with this opinion. New trial.