80 S.E. 980 | N.C. | 1914
This is an action to recover damages for trespass on the "White" tract of land, which the plaintiffs claim title to under the will of Sallie E. Ward, described as "lying on the White Oak road, and *118 adjoining the lands of Patterson Ruffin, A. S. Rascoe, and others, and containing 191 acres."
The defendant admits that Sallie E. Ward owned the "White" land, but contends that it did not at her death include the whole 191 acres, because she had conveyed to W. A. Ward 50 acres thereof, and in her devise of the "White land" to the plaintiffs she had reserved the 50 acres, because the devise is "that portion of the White tract of land which is not sold and isnot now owned by me." The defendant contends that the plaintiffs should have shown what portion of the land Mrs. Ward had not sold off, and that they have introduced no evidence on that point.
The defendant in its answer denies the alleged trespass or that it has cut any timber it did not own or has destroyed any undergrowth or damaged the freehold.
The second and third exceptions are that the court refused to allow the deed from Sallie E. Ward to W. A. Ward to be read to the jury, and excluded all evidence offered to identify the land described in it and tending to show that the 50 acres were included in the 191 acres of the "White" tract claimed by plaintiffs. This deed from Sallie E. Ward had been put in evidence without objection; but when the defendant offered to read it to the jury the court excluded it, holding that, as a matter of law, it was "void for lack of description," and that "the deed did not describe any land." The description is "50 acres adjoined by P. R., bound on the White Oak road and joining A. S. Rascoe and P. Ruffin." The deed has apt words of conveyance and is sufficiently formal. It does not convey an indefinite 50 acres "out of" the White land, (107) but a tract of 50 acres, which was a part of the White land, "on the White Oak road" adjoining the lands of A. S. Rascoe and P. Ruffin.
We think his Honor erred in excluding parol testimony to identify this tract of land. It was a latent and not a patent ambiguity. It may be that the defendant could have shown that the boundaries had been actually run and marked. At any rate, it was not impossible to lay off 50 acres of the "White" tract, taking the White Aak [Oak] road as one boundary. The other boundary in such case (unless it had been actually run and marked) would have been parallel to said White Oak road and far enough from it to make up the acreage of 50 acres. In Farmer v. Batts,
Among the later cases in point in Hudson v. Morton,
In Stewart v. Salmonds,
In Warren v. Makely,
In Cox v. Cox,
As these errors require a new trial, it is unnecessary to discuss the other exceptions.
Error.
Cited: Bachelor v. Norris,
(109)