| N.C. | Feb 5, 1897
This is an action of ejectment. The defendant, for the purpose of securing money borrowed from the plaintiff, executed a deed of trust to one Grogan, by which he conveyed to said trustee Lot. No. 13 in the City of Winston. The description contained in the deed is as follows: "Beginning at the corner of Lot No. 12 and running southwardly the west side of Chestnut street 44 feet 3 inches to Seventh street, thence westward with said Seventh street 100 feet to an alley, thence northward with said alley 39 feet 11 inches to the line of Lot No. 12, thence eastward with the line of Lot No. 12, 100 feet to the beginning. This lot is known as Lot No. 13 on the Show ground plot, recorded in the Register's office, in Book 42, page 274, and upon this lot the Hotel Bethel is erected." Grogan, trustee, sold, and plaintiff (345) bought and brings this action.
In fact, the Hotel Bethel is erected on Lot. No. 13, but extends over the line between lots No. 12 and 13, eight feet on Lot No. 12, and this action is to recover this eight feet of Lot. No. 12.
Plaintiff contends that the language used in the closing sentence of the description — "and upon this lot the Hotel Bethel is erected" — controls the description; and thereby this eight feet was conveyed by the deed of trust to Grogan and by him to the plaintiff — it being admitted that the Grogan deed to plaintiff contains identically the same description as that in the deed of trust.
But we do not agree with the plaintiff. If the mortgage had been a conveyance of the "Hotel Bethel," situate on Lot 13, we would say it conveyed the ground upon which it stood, so far at least as the mortgagor was concerned, and he would be estopped to deny that it did. But that is not the case here. The grant is of Lot No. 13 specifically described by metes and bounds, calling for the line of Lot No. 12, and the hotel is only mentioned as a further means of locating the property.
We are unable to distinguish this case from that of Midgett v. Twiford,ante, 4, and it must be governed by what is said in that case.
Affirmed. *238
(346)