Patton v. . Sluder

HoKE, J. The decisions in this State are in very general recognition of the principle that a deed conveying real estate or a contract concerning it, within the meaning of the statute of frauds, must contain a description of the land, the subject-matter of the contract, “either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the contract refers.” Massey v. Belisle, 24 N. C., 170. In the application of this- principle there was, at times, some discrepancy in the' cases; considered, however, more apparent than real until the decisions of the Court in Blow v. Vaughn, 105 N. C., 198, and in Wilson v. Johnson, same volume, 211, in which it was held that deeds describing the land as “adjoining the lands of A, B, and others and containing 25 acres, more or less,” etc., and another giving description as “adjoining lands of J. P. and J. H. Liverman and Isaac J. Snipes et al. and containing 50 acres,” were too vague and indefinite to be aided by parol proof.' *503 These decisions, published in 1890, being the cause of much concern in the State as to the validity of titles, the Legislature, in 1891, chapter 465, passed a statute designed to change the principle of construction. Eevisal 1905, sec. 948 and sec. 1005. And the Court itself, and apart from the operation of the statutes, in the subsequent case of Perry v. Scott, expressly disapproved the two decisions referred to, and it was then held that a deed for land containing the description, “lying and being in Jones County, bounded as follows: on the south side of Trent Eiver, adjoining lands of Colgrave McDaniel et al., containing 360 acres, more or less,” was not too vague to permit the reception of parol evidence in aid of the deed, and if the evidence offered in such deed was sufficient to satisfactorily identify the tract of land intended, the deed should be held a valid conveyance so far as the matter of description was concerned. The case of Perry v. Scott, based upon former decisions of the Court, such as McLawhorn v. Worthington, 98 N. C., 199; Farmer v. Batts, 83 N. C., 387, etc., has been since repeatedly cited with approval (see Bachelor v. Norris, 166 N. C., 506; Johnston v. Mfg. Co., 165 N. C., 105; Hudson v. Morton, 162 N. C., 6), and being entirely consistent with the legislation referred to, may be considered as controlling where the question is similarly presented. Applying the principle to the facts in evidence, we concur in the decision of the Superior Court that plaintiffs hold and can convey a good title pursuant to their contract. From these facts, as we apprehend them, it appears that the title of an entire tract being in Elizabeth Gilliam, same was devised amongst her heirs at law and the part allotted to W. C. Gilliam was conveyed by him to W. Y. Porter by deed dated on 1 May, 1875, describing the land by metes and bounds, as shown in the deed presently tendered by plaintiffs under their contract, and same said to contain 41 acres, more or less. While the facts further show that this tract, when conveyed to ~W. Y. Porter, adjoined a larger body of land also owned by him, it did not become a part thereof in the sense that it lost its identity, and ~W. Y. Porter, Sr., having sold all the other land owned by him, gave a bond for title to this tract to M. M. Jones, described as follows: “On the headwaters of Swannanoa Eiver; adjoining the Hemphill heirs, Gilliam heirs, et al., and containing 41 acres, more or less,” and the same description enters into one or. more deeds since executed, in the line of plaintiff’s title. True, the boundaries of the original deed from Gilliam to Porter,- and which accord with the deed now tendered by plaintiff, are said to contain only 29.8 acres; but this does not affect the principle. *504 Tbe proof shows that it adjoins tbe land of tbe Hemphill heirs, tbe Gilliam heirs, and others; it was the only land in that locality owned by W. Y. Porter, Sr., and comes directly within the principle of Perry v. Scott and the language of the statute now controlling the question. Revisal, sec. 948: “No deed or other writing purporting to convey land or an interest in land shall be declared void for vagueness in the description of the thing intended to be granted by reason of the use of the word ‘adjoining’ instead of the words ‘bounded by,’ or for the reason that the boundaries given do not go entirely around the land described: Provided, it can be made to appear to the satisfaction of the jury that the grantor owned at the time of the execution of such deed or paper-writing no other land which at all corresponded to the description contained in such deed or paper-writing.” The case of Smith v. Proctor, 139 N. C., 314, to which we were cited by defendant’s counsel, is not in contravention of the principle. “That was a conveyance of a portion of land to contain 40 acres to be taken out of a larger tract of 150 acres,” with nothing to indicate the shape and “affording no data whatever by which the divisional line could be established.” But in this ease the land was a separate tract which, in the original deeds, was fully described by metes and bounds and which the evidence could satisfactorily ascertain and identify from data appearing in deed. There is no error, and the judgment below must be Affirmed.