Higdon v. . Howell

*456 Clark, C. J. Tbe plaintiff alleged that sbe is tbe owner of an undivided one-balf interest in tbe tract of land described in tbe complaint ; that tbe defendants wrongfully bold possession thereof, and bave cut and removed valuable timber from said land. Tbe defendants deny all tbe allegations of tbe complaint, alleging ownership' in themselves. Tbe plaintiff claims -under Grant No. 737, issued in 1861, and tbe defendants under a prior Grant No. 504, issued in 1857, upon an entry in 1853, this last containing 640 acres, and it is alleged that tbe 200-acre tract claimed by tbe plaintiff lies within tbe 640-acre grant, under which tbe defendants claim. Tbe plaintiff failed to show any possession by her or by those under whom sbe claims. Tbe plaintiff undertook to connect herself with Grant No. 504 by a deed from one W. L. Love, administrator of "William Tatbam, tó J. R. Buchanan (one of tbe mesne conveyances to her), bearing date 15 May, 1873, and insisted that this deed covered the land described in tbe complaint. Tbe defendants insisted that tbe description in this deed was too indefinite and did not describe tbe land set forth in tbe complaint. This deed contains no recital of tbe authority of W. L. Love, administrator, to convey; did not recite a bond for title from William Tatbam to J. R. Buchanan, and none was introduced; this deed was signed simply “'William Love, administrator of William Tatbam.” The-defendants objected both that no authority was shown in tbe administrator to convey and that it did not describe tbe lands sought to be recovered. We need not consider tbe evidence as to tbe authority nor tbe other exceptions in tbe case, for we are of opinion that tbe description of tbe land in this deed is too indefinite to amount to a conveyance. Tbe description in said deed is as follows: “undivided half interest in and to a certain piece, tract, or parcel of land lying and being in tbe county (of Jackson) aforesaid, on tbe waters of Savannah Greek, being that covered by State Grant No. 504, containing 200 acres, more or less.” There was no further description nor any description by metes and bounds. Grant No. 504 was a 640-acre tract, and it does not appear what 200 acres of tbe 640-acre tract were intended to be conveyed by this deed. This is not a conveyance of a whole tract of land, mistaking tbe quantity of land stated therein, but. it is an attempt to convey an undivided half interest in an uncertain 200-acre tract lying somewhere within tbe bounds of said Grant No. 504, which was for 640 acres. The attempted conveyance is therefore void for uncertainty, even if it were valid in other respects. Cathey v. Lumber Co., 151 N. C., 592, and eases there cited. This description does not measure up to tbe rule laid down in Farmer v. Batts, 83 N. C., 387, where tbe subject is fully discussed with citation *457 of authorities. See, also, citations to that case in the Anno. Ed. This case clearly falls into the class of cases where the words of description have been held too indefinite to admit parol testimony. Johnston v. Mfg. Co., 165 N. C., 105. The plaintiff relies upon Smathers v. Gilmer, 126 N. C., 759, but that case is not in point. In that case there was no question as to the identity of the tract, but it appeared that when the plaintiff purchased he believed there were 500 acres in the tract, as recited in the deed. When the survey was run it appeared that there were only 262 acres. It was held that as the purchaser did not protect himself by a proper warranty as to the number of acres, and there was no false representation as to the number-of acres, and both parties had equal means of information, the plaintiff could not recover damages for the shortage. That case has been cited since with approval in several cases quoted in Bethell v. McKinney, 164 N. C., 78. It has no bearing upon this case, where the conveyance is void for indefiniteness in conveying an interest in an undefined, un-loeated 200 acres within a 640-acre grant. The motion for nonsuit should have been allowed. Beversed.