Wagoner v. Evans

Per Curiam. The additional facts -which plaintiff requested the court to find appear in .the record only in. the plaintiff’s unverified motion filed nine days after tire judgment had been entered. The judge was correct in overruling this motion. However, even 'if we assume that the B-ryant farm contains only 74.5 acres instead of the 100 acres the testator apparently thought it contained, this- discrepancy in acreage makes no 'difference. It is clear from the will that the devisor intended that plaintiff 'should have the Bryant farm and the designated ten acres from the J. A. Wagoner place, irrespective of the acreage contained in each. These two farms are distinct parcels. Mrs. Wagoner and her (husband who predeceased her had owned them a number of years, and ishe was familiar with each. In ¡her opinion, the Bryant farm plus ten' acres’ made the plaintiff equal with the defendant. [421] A testator's misconceptioiii as to the 'number of ac-res in a specifically named tr-aot 'oanoat control the boundaries which define it. “The excess or the deficiency in the number of aiares supposed to be in the 'tract, may, in doubtful oases, aid in determining the boundaries, but when at variance with them must be disregarded as a mistake of the party.” Lyon v. Lyon, 96 N.C. 439, 2 S.E. 41; Ellis v. Harris, 106 N.C. 395, 11 S.E. 248; Brown v. Hamilton, 135 N.C. 10, 47 S.E. 128. In Woods v. Woods, 55 N.C. 420, it was held that a devise of “the tract of land whereon I now live and reside, containing two hundred and twenty-five acres, more or less” conveyed the testator’s homaplace even though it contained between four hundred and five hundred acres. If a tract of land has a name by which it is known to the testator, 'his devise of the tract by that name will pass the title to it even though he erroneously stated its acreage. “Quantity is the least reliable of all descriptive particulars in a conveyance and is the last to- be resorted to.” 8 Am. Jur., Boundaries, § 63. The judgment of the court that plaintiff owns the W. F. Bryant farm plus the specified ten meras from the J. A. Wagoner tract and that defendant owns the J. A. Wagoner .tract less the ten acres to be laid off to the plaintiff is Affirmed.