Norton v. . Smith

May 12, 1920

Versions:179 N.C. 553

103 S.E. 14

1920 N.C. LEXIS 289

Walker, J.,

after stating the case as above: There was evidence tending to sbow tbat the defendant owned but one tract of land, and bad listed for taxation only one tract, wbicb was the land occupied by bim as a borne; tbat it contained exactly one hundred and forty-six acres; tbat be bad lived there 10 or 11 years; the land is about one mile from Stony Point, where the contract was made; it has bis dwelling on it, and defendant raised tobacco there. It appears to be a well known place, and the only one the defendant owned. It is admitted in the answer tbat the defendant refused to convey any land to the plaintiff. Defendant alleged in bis answer tbat the contract is void, because the description is not a sufficient compliance witb the statute of frauds (Rev., 976), wbicb is specially pleaded in bar of the right to recover. Upon this plea, the judge charged correctly as to the law, and the jury has found against bim as to the facts. Tbe description is sufficient for the admission of parol evidence to identify the land, or to fit it to the land intended to be sold and conveyed. Tbe contract described it as the defendant’s “entire tract or boundary of land,” and further as “consisting of 146 acres.” It was not a part of another tract, but was a separate and distinct tract. It was the same as if J. A. Smith bad described it as “bis 146-acre tract of land.” It also appears by the evidence to be the tract be was cultivating in tobacco tbat year, and to have bad more than one dwelling. But the fact tbat be owned only one tract, and tbat it contained 146 acres, was sufficient to identify it as the land the defendant contracted to convey. Carson v. Ray, 52 N. C., 609, is exactly in point. There the description was “my bouse and lot in the town of Jefferson,” and it was held tbat it would “undoubtedly” be sufficient, if in a will, to pass the testator’s bouse and lot, in the absence of any proof to show tbat be bad more than one. If, then, such a description would be sufficiently certain in a will, we cannot *555 perceive any reason wby it should not be so in a deed, as, in both instruments, the only requisite, as to the certainty of the thing described, is that there shall be no patent ambiguity in the description by which it is designated. A house and lot, or one house and lot in a particular town, would not do, because too indefinite <5n the face of the instrument itself. See Plummer v. Owens, 45 N. C., 254; Murdock v. Anderson, 57 N. C., 77. But “my house and lot” imports a particular house and lot, rendered certain by the description that it is one which belongs to me, and, upon the face of the instrument, is quite as definite as if it had been described as the house and lot in which I now live, which is undoubtedly good. Where the deed or will does not itself show that the grantor or devisor had more than one house and lot, it will not be presumed that he had more than one, so that there is no patent ambiguity, and if it be shown that he has more than one, it must be by extrinsic proof, and the case will then be one of a latent ambiguity, which may-be explained by similar proof. An agreement “to furnish water out of the mill dam sufficient to carry the fulling mill and carding machine” was held, in Fish v. Hubbard, 21 Wendell (N. Y.), 651, to be a sufficient memorandum to defeat a plea of the statute, and to let in parol evidence to identify the property, Judge Oowan remarking: “If it were in proof that the donor or grantor owned one mill dam, one carding machine, and one fulling mill, and no other property of that description at the date of his will or deed, ought we to hesitate in saying that he intended to pass such property; or should we say that possibly he intended some property of his neighbor or neighbors answering a similar description? The presumption is strong that a description which actually corresponds with an estate owned by the contracting party is intended to apply to that particular estate, although couched in such general terms as to agree equally well with another estate, which he does not own.” In the subsequent case of Mead v. Parker, 115 Mass., 413, where the writing was in these words: “This is to certify that I, Jonas Parker, have sold to Franklin Parker a house on Church Street for the sum of $5,500,” the Court held that evidence was competent to show what house the defendant owned on Church Street, if he had only one, and decreed specific performance of the contract, remarking as follows: “The most specific and precise description of the property intended requires some proof to complete its identification. A more general description requires more. When all the circumstances of possession, ownership, and situation of the parties, and of their relation to each other and the property, as they were when the negotiation took place and the writing was made, are disclosed, if the meaning and application of the writing, read in the light of those circumstances, are certain and plain, the parties will be bound by it as a sufficient written *556 contract or memorandum of their agreement.” So it has been held that a description of land, as that on which a certain person resides, is sufficient to identify it by parol evidence. Morrisey v. Love, 26 N. C., 38; Simmons v. Spruill, 56 N. C., 9; or by its name, as the “home place,” the “Lynn place,” or the “Leonard Greeson place.” Smith v. Low, 24 N. C., 457. These positions are fully sustained by Lewis v. Murray, 177 N. C., 17, at pp. 19-21, citing Bateman v. Hopkins, 157 N. C., 470; Thornburg v. Masten, 88 N. C., 293; Farmer v. Batts, 83 N. C., 387, and other cases. Every valid contract must contain a description of the subject-matter; but it is not necessary it should be so described as to admit of no doubt what it is, for the identity of the actual thing and the thing described may be shown by extrinsic evidence. Fry on Specific Performance, sec. 209; Pomeroy on Contracts, sec. 90 and note; Buckhorn L. & T. Co. v. Yarbrough, ante, 335. We have not the slightest doubt that this description is not a patent ambiguity, but, at most, is a latent one, susceptible of being made certain by extrinsic proof. It is far more accurate than some of the descriptions held by the authorities to be sufficiently definite, as against a plea of the statute of frauds, to admit parol evidence for the purpose of fitting the description to the land intended to be conveyed.

The other exceptions, as to evidence, etc., are, in the view taken of the case, immaterial, and if the rulings were erroneous, they were harmless. The uncontradicted facts clearly identify the land.- The defendant offered no evidence to show that he owned any other “entire tract or boundary of land” containing 146 acres, or that he did not intend to sell his home place.

No error.