Thornburg v. . Masten

Ashe, J. The question is, whether there was error in the ruling of His Honor that the receipt for the five hundred dollars *295 was too vague and uncertain to take the contract out of the operation of the statute of 29 Charles II. We are at a loss to know upon what ground His Honor intimated the opinion that the writing recited in the complaint was insufficient to maintain the action upon it: whether it was upon the ground that the full consideration, agreed to be paid by the plaintiff, was not mentioned in the writing, or because the description of the land was too uncertain. But in either view there was error in the opinion expressed by him. Although in England it is held that in any contract for the conveyance of land the consideration must be set forth in the agreement, it has been decided otherwise in this state. In Miller v. Irvine, 1 Dev. & Bat., 103, in which Chief-Justice Ruffin gave an elaborate opinion reviewing the English and American decisions on the subject, it was held that our act of 1819, copied from the statute of Charles II., to make void parol contracts for the sale of lands and slaves, did not require that the consideration of the contract should be set forth in the written memorandum of it. This decision was followed by Ashford v. Robinson, 8 Ired., 114; Green v. Thornton, 4 Jones, 230; Kent v. Edmonston, Ib., 529, and other cases that might be cited to the same effect. The other point, as to the vagueness and uncertainty in the description of the land, has been equally well settled by the adjudications of this court, notably in Farmer v. Batts, 83 N. C., 387, and Henly v. Wilson, 81 N. C., 405, and the numerous decisions cited in each of those cases. In the former, which was an action for the specific performance of a contract, the written memorandum relied upon as evidence of the contract was, as in this case, a receipt as follows: “Received of W. D. Farmer fourteen hundred dollars, in full payment of one tract of land containing one hundred and ninety-three acres, more or less, it being the interest in two shares adjoining the lands of James Barnes, Eli Robbins and others. This 25th of January, 1864.” This receipt is very similar in its terms to that in the case before us, with the differ *296 ence that, here, the land is more specifically described by giving the name of. the land as the “ Lenoir land.” The name of a place, says Chief-Justice Ruffin, in Smith v. Low, 2 Ired., 457, like that of a man, “may and does serve to identify it to the apprehension 'of more persons than a descrfytion by coterminous lands and water courses, and with equal certainty. For example, ‘ Mount "Vernon, the late residence of General Washington,’is better known by that name than by a description of it as situate on the Potomac river and adjoining the lands of A, B, and C.” In Reddick v. Legget, 3 Mur., 539, it was said by Henderson, J.: “If I grant White Acre, which I purchased of J. S., and which descended to me from my father, White Acre will pass, although I purchased it of J. N. and not J. S., and although it descended to me from my mother and not from my father; it is sufficiently identified by its name, and the other descriptions are not sufficient to render it uncertain.” Such particularity in the description of land conveyed or contracted to be conveyed, as will give the court cei’tain and unmistakable information of the land that is meant, is not required, and could rarely even be attained. All that is required is that the land should be described with such certainty that by proof aliunde the description may be fitted to the thing. In almost every case, extraneous proof is requisite and admissible to apply the description to the land meant to be conveyed. Smith v. Low, supra. There is error. A venire de novo is awarded. Error. Venire de novo.