Mizell v. . Ruffin

Clark, J.: The deed from Burden to Ruffin conveyed “a portion of his cypress timber on Ahoskie and Loosing swamps.” This is void for uncertainty, for it does not appear what portion is conveyed. Harrison v. Hahn, 95 N. C., 28; Blakely v. Patrick (the “ buggy case”), 67 N. C., 40; Atkinson v. Graves, 91 N. C., 99; McDaniel v. Allen, 99 N. C , 135. Nor is this helped out or rendered more certain by the condition which immediately follows, that the grantor and his heirs “ may retain from this timber enough for his fai;m and building purposes.” The relative pronoun “this” refers to its antecedent, which is the “portion” which is attempted to be conveyed. But if the reservation was out of the whole body *24 of the timber, the “portion” conveyed would still remain indefinite. It maj or may not be that the grantor intended to convey all his timber, except that reserved, but it is clear that such is not the plain meaning of the words used, and the rules of legal construction will not admit of a surmise of the probable intent of the grantor contrary to the purport of his words. The subsequent deed given by Burden to Wynns is admitted to be sufficient in form. There has been a breach of the warranty given by Ruffin to the plaintiffs, for which they can maintain their action. Whether the defendant is protected by the statute of limitations, or has other adequate matter of defence, is not now before us. Error.