Bailey v. . Hayman

*176 Stacy, C. J. On tbe bearing, tbe case was made to turn on tbe proper construction of tbe following description in a deed from Tbos. J. Mark-barn, Commissioner, to Hattie M. Dougb: “Lying and being in Nags Head Township, Dare County,'and bounded as follows: Situated on tbe north end of Roanoke Island and known as tbe Abby Dougb tract and bounded on tbe north by tbe land of tbe heirs of Tbos. A. Dougb, deceased, on tbe east by a tract of land known as tbe Richardson tract; on tbe south by tbe lands of Hattie M. Dougb, and on tbe west by tbe lands of tbe heirs of Spencer Etheridge, deceased, containing seventy (70) acres, more or less, and being tbe same land conveyed to Abby Dougb and husband, "Warren A. Dougb, by William S. Etheridge, by deed duly recorded in Book No. 10, page 196, office of tbe register of deeds of Currituck County, and being tbe same place where Hattie M. Dougb now resides.” Tbe question in difference arises out of tbe attempted determination and location of tbe eastern boundary of tbe land covered by tbe above description. Tbe plaintiffs contend that tbe Richardson tract which they here seek to partition is timber land lying immediately east of tbe Abby Dougb tract, which latter tract consists of cultivated land, with dwelling bouse thereon, and is known as tbe home place. They admit that tbe foregoing deed covers tbe Abby Dougb tract, but they deny that it also conveys tbe Richardson tract. Tbe defendant, on tbe other band, insists that tbe entire tract, including tbe woodland, or tbe part here sought to be partitioned, is known as tbe Abby Dougb tract, and that tbe “Richardson tract,” mentioned as tbe eastern boundary, while ostensibly a locative call, is, in reality, a fugitive or indeterminable call in tbe description. 8 Am. Jur., 747; 16 Am. Jur., 589. Each side offered evidence tending to support its position. Tbe plaintiffs concede that both tracts, as they speak of them, are within tbe outer bounds of tbe William S. Etheridge deed to which reference is made in tbe Markham deed, and that tbe defendant is tbe sole owner of whatever is conveyed by tbe Markham deed. Upon this concession, tbe trial court held as a matter of legal construction, ipso jure, that tbe reference to tbe William S. Etheridge deed was equivalent to incorporating its calls as a second description in tbe Markham deed, and that, therefore, tbe Richardson tract as tbe plaintiffs speak of it, is covered by tbe description in tbe Markham deed. Accordingly, tbe jury was instructed to find for tbe defendant. Tbe correctness of this ruling is challenged by tbe appeal. Tbe evidence offered on behalf of tbe plaintiffs tends to bring tbe case within tbe principles announced in Von Serf v. Richardson, 192 N. C., *177 595, 135 S. E., 533; Ferguson v. Fibre Co., 182 N. C., 731, 110 S. E., 220; Williams v. Bailey, 178 N. C., 630, 101 S. E., 105; Potter v. Bonner, 174 N. C., 20, 93 S. E., 370; and Cox v. McGowan, 116 N. C., 131, 21 S. E., 108. That offered by tbe defendant tends to bring it within the doctrine of Quelch v. Futch, 172 N. C., 316, 90 S. E., 259. It is for the jury to say whether the plaintiffs have located the Bich-ardson tract according to their contention. Edwards v. Bowden, 99 N. C., 80, 5 S. E., 283, 6 A. S. R., 487. In partition, upon a plea of sole seizin, non tenent insimul, the burden is on the plaintiff to show title as alleged, i.e., the tenancy in common. Huneycutt v. Brooks, 116 N. C., 788, 21 S. E., 558. There was error in directing a verdict for the defendant. New trial.