Potter v. . Bonner

AlleN, J. The firfet position of the defendants cannot be sustained because of the well-established rule that when there is a particular and á general description' in a deed, the particular description controls. Carter v. White, 101 N. C., 30; Cox v. McGowan, 116 N. C., 135; Midgett v. Twiford, 120 N. C., 4; L. Co. v. McGowan, 168 N. C., 87. *22 The principle was applied in the Garter case to a deed containing a description by metes and bounds, and also “known as Walker’s Island”; in the Cox case to a deed containing the description “being the part of the Burton McGowan land conveyed by him to James H. McGowan,” following a particular description, and Dana v. Middlesex Bank, 10 Dana, 250, is cited and approved, in which the book and page where the deed referred to was registered was given; and in the Midgett case, which is approved in L. Co. v. McGowan, to a deed giving a particular description, followed by the words “or the one-fourth part of all the land that my father, Edward Mann, died seized and possessed of.” It was held in these cases (and many others could be cited to the same effect) that the particular description controlled, and that it could not be enlarged to include other lands by the general description. The second contention of the defendants is also untenable. The rule prevails with us, as contended by the defendants, that the description of land in a deed may be enlarged or limited by evidence of a eotemporaneous survey, but the rule has always been applied with caution, because, in legal effect, it permits the transfer of title to land by parol, in violation of the statute of frauds, and it may frequently result in wrong and injustice. It not infrequently happens that parties having in contemplation the execution of a deed go upon the land and make an actual survey and locate and. mark the boundaries to be included in the deed, and afterwards conclude to shorten or lengthen a line, or to make some other change in the description, and the deed is executed accordingly, and if parol evidence of an actual survey is permitted to control the description in the deed, it, in such cases, would thwart the intent of the parties instead of carrying it into effect. The Courts have therefore been careful to define with particularity the circumstances under which such evidence may be received, and have only permitted it to control the description in the deed “when parties, with the view of making the deed, go upon the land and make a physical survey of the same, giving it a boundary which is actually run and marked, and the deed is thereupon- made, intending to convey the land which they have surveyed.” Clarke v. Aldridge, 162 N. C., 330, and cases cited. These requirements are not only for the purpose of having the line definitely marked, but also to give publicity to the acts of the parties, and is analogous to the livery of seizin of the common law, where the lord, without writing, in order to invest the tenant with title, went upon the land and in the presence of witnesses delivered a tuft of grass or a twig from the land and declared the tenant to be in'possession of the land granted to-him. *23 Ill this case none of these evidences were present. The parties did not go upon the land; they did not survey it; they did not mark the boundaries, and the defendants must rely upon a simple declaration • of one of the grantors made at the time of the execution of the deed without any allegation of a fraudulent intent. We are therefore of opinion his Honor could have instructed the jury on the facts not in controversy to answer the issue in favor of the plaintiffs, and this view renders it unnecessary to consider the exceptions taken by the defendants in the course of the trial. No error. BeowN, J., did not' sit.