15 S.E. 1033 | N.C. | 1892
Both parties claimed title through Noah W. Guilford, who was admitted to have been the owner of the land in controversy prior to 1 September, 1871, when he executed a deed to his son Charles F. Guilford, who, in turn, conveyed to the defendants by deed, dated 22 December, *2 1879, referring to the deed executed by Noah W. Guilford to himself for description.
The plaintiff, to show title in himself, offered:
1. A sheriff's deed, dated 6 January, 1872, to Samuel T. Carrow, reciting a levy and sale by sundry executions.
2. A deed of trust from S. T. Carrow and wife to John C. Blake, dated 24 December, 1873, conveying the land in controversy.
3. A deed of trust from J. C. Blake, trustee, to the Raleigh National Bank of North Carolina, dated 31 January, 1876.
4. A certified copy of an organization certificate of the Raleigh National Bank of North Carolina, dated 22 October, 1872.
5. A deed from said bank to the plaintiff, A. W. Shaffer, dated 31 October, 1883.
The boundary, D, U, O, P, Q, B, C, indicated by dotted lines on the plot, shows the possession of the defendants, covering two hundred acres. The plaintiff Shaffer contends that defendants' boundaries include only 38.2 acres, beginning at D on plot and running thence (3) to U; thence with Gainor's line 100 poles to Fig. 1; then south 160 poles to Bridgeman's line (but the line run south actually reached Bridgeman's line at a distance of 130.5 poles at Fig. 2); thence to the beginning. The plot of the surveyor is made a part of the statement.
[EDITORS' NOTE: THE MAP IS ELECTRONICALLY NON-TRANSFERRABLE.], SEE
The deed, purporting to be a conveyance from the Raleigh National Bank, was signed by E. G. Reade, president; Charles H. Belvin, director, and W. G. Upchurch, director. The probate of said deed was as follows: *3
NORTH CAROLINA — Wake County:
On this 1 November, 1883, personally came before me, D. Reid Upchurch, an acting justice of the peace of said county, Fabius H. Briggs, who, being duly sworn, sayeth that he knows the common seal of the Raleigh National Bank, of Raleigh, North Carolina, and is also acquainted with E. G. Reade, president of said bank, and also with Charles H. Belvin and W. G. Upchurch, two of the directors of said bank, and that he, the said Fabius H. Briggs, saw the said (4) E. G. Reade, president, as aforesaid, affix said seal to the annexed deed, and also saw him and the said Charles H. Belvin and W. G. Upchurch sign the deed, and that he, the said Fabius H. Briggs, became a subscribing witness to the said deed in their presence.
Witness my hand and private seal, the day and year first above written.
D. REID UPCHURCH, J. P. [SEAL.]
The foregoing certificate of D. Reid Upchurch, a justice of the peace of Wake County, is adjudged to be correct, and I certify that D. Reid Upchurch is an acting justice of the peace of said county, and that his signature thereto is in his own handwriting.
Witness my hand and official seal, this 1 November, 1883.
CHAS. D. UPCHURCH, C. S.C.
BEAUFORT COUNTY, N.C.:
It appearing to my satisfaction, from the foregoing certificate of D. Reid Upchurch, a justice of the peace for Wake County, and from the certificate and official seal of Chas. D. Upchurch, Clerk of the Superior Court of said county of Wake, that the foregoing deed of conveyance has been duly executed. It is adjudged that the same, with the certificates, be registered. This 22 September, 1885.
C. D. WILKENS, C. S.C.
Received in office at 11 a. m., 22 September, 1885, and registered 24 September, 1885.
B. STILLEY, Register.
6. The defendants then showed by the testimony of several witnesses, that in 1872 the said S. T. Carrow, then owning and being in possession of the lands claimed by the plaintiff, including the (5) Whitford tract, together with said Charles F. Guilford, had the land claimed by the latter survey; that the said Carrow went with the surveyor around the lines claimed by the defendant, the dotted lines upon the map; that these lines were then distinctly marked by the said Carrow, or by persons under his direction, as the lines of the C. F. Guilford land; that C. F. Guilford was present upon the said survey; and the lines so run and marked were agreed upon between them as the *4 lines of the C. F. Guilford land; that the line from P to Q upon the map is a ditch, and from Q to B is an avenue, and these lines were then agreed upon between said Carrow and Guilford, instead of extending the line O P so far that a line east from said extended line would strike Bridgeman's line, and a north course with Bridgeman's line would run to B.
This agreement was in parol.
The defendants asked the court to charge the jury:
1. That if the lines S O and P O, and the lines P Q and Q B were marked by S. T. Carrow and Charles F. Guilford, or by anyone under their authority and direction, about the years 1873 or 1874, and were agreed upon or recognized by them as the lines which separated their lands, then it is evidence of the true location of such lines.
2. That if the defendants, and those under whom they claim, have been in the possession up to such lines for more than seven years prior to the institution of this suit, then the plaintiff cannot recover.
3. That the deed from N.W. Guilford to Charles F. Guilford conveys the land marked upon the map D, U, O, P, Q, B, C, D, if the jury should believe that the lines S O and O P, and the lines P Q and Q B, were marked and defined by S. T. Carrow and Charles F. Guilford, as stated in the first prayer for instructions.
(6) The court declined to give these instructions, and the defendants excepted.
The court was of the opinion that, by a proper construction of the descriptive clause in the deed from N.W. Guilford to Charles F. Guilford, the said deed conveyed the land comprised within the following lines, as shown on the map: Beginning at D and running thence to the pine at Gainor's corner, U; running thence with said Gainor's line N. 45 degrees W. 273.2 poles to the letter "S," that being fixed by the surveyor as the point from which a line south to O B, Bridgeman's line "T," thence to C, thence to D, the beginning, would make 150 acres, and that no parol agreement between S. T. Carrow and Charles F. Guilford could extend or change the said boundary, so instructed the jury — whereupon the issues were answered as appears in the record.
The defendants moved for a new trial upon the grounds that the Court erred: (1) In admitting the deed from Bryan Whitford and wife to Noah W. Guilford; (2) the deed from F. J. Satchwell to S. T. Carrow; (3) the deed from John C. Blake to the Raleigh National Bank of North Carolina; (4) the deed to A. W. Shaffer, and in holding that the latter deed was the deed of the Raleigh National Bank of North Carolina and conveyed the land of the said bank; (5) in refusing to admit the conveyance of the locus in quo by N.W. Guilford to Felix Guilford, unless defendants could connect themselves with said *5 conveyance; (6) the refusal of the court to charge as requested; (7) that portion of the charge as to what was conveyed by the said C. F. Guilford deed, and the marking of the lines by C. F. Guilford and S. T. Carrow.
Motion for a new trial refused.
The burden being upon the plaintiff to offer prima facie (7) testimony tending to connect himself with N.W. Guilford, the common source of title, it is proper first to consider and pass upon exceptions to the refusal to exclude mesne conveyances, constituting an essential part of such connecting line, for want of proper probate, or upon exceptions impeaching such deeds for inherent defects or raising the question whether the evidence, if undisputed, was sufficient to fit the description to the land. Objection was made to the probate of the deed executed by John C. Blake to the bank in 1876, because the certificate set forth that the deed was acknowledged by the grantor when the name of W. H. Battle appeared upon its face as a subscribing witness. The Statute then in force [ch. 35, sec. 2 (1), Bat. Rev.) provided that the proof of the execution by a grantor residing in the State might be made either by his acknowledgment or on the oath of the subscribing witness. Construing the subsection mentioned, in connection with the first section of the same chapter, it seems too plain to admit of serious argument that the probate is sufficient. Black v.Justice,
It is now conceded, or not disputed, that the copy of the organization certificate was properly certified, and that the original certificate was drawn, acknowledged and deposited in accordance with sections 5133 and 5134, Rev. Stat. U.S., and such being the fact, it would follow that the copy offered was an exemplification of the original, upon the filing of which the statute made the persons composing the association, formed for the purpose of entering into banking business, a body politic with all the powers of a National Bank. Rev. Stat. U.S., sec. 5136.
The objection that the name of the corporation does not appear as grantor in the body of the deed to Blake, is untenable. An inspection of the instrument shows that the full corporate name is set forth in its proper place. The words, "The president, directors, (8) etc., of," prefixed before the words, "The Raleigh National Bank, a corporation organized and transacting business under the laws of the United States, at Raleigh, N.C." may be treated as surplusage, leaving the full and proper corporate name as the description of the person. Where the name of a corporation is signed to the deed as grantor, *6
if it is to be found also in the premises, the fact that it is preceded by the words quoted, which merely indicate that the corporation is acting through the officers empowered by law to convey land for it, does not destroy its efficacy as a conveyance of the interest of the corporation.Bason v. Mining Co.,
The deed from N.W. Guilford to C. F. Guilford, being of older date than the deed of the sheriff to Carrow, the defendants would hold as against the plaintiff all the land included within the boundaries of his deed, while it is conceded that the sheriff's deed passed all of the adjacent land of N.W. Guilford to Carrow, and through the mesne
conveyance, if admitted in evidence, to the plaintiff. If the boundaries of the defendants can be so located as to cover the territory on which the trespass is alleged to have been committed, and which was, when the action was brought, in the possession of the defendants, then (10) the plaintiff's prima facie case would be rebutted, and he would not be entitled to recover. The descriptive clause of the deed to C. F. Guilford is as follows: "Beginning at the mouth of Josephus Moore's Branch on Jack's Creek and runs up the branch to the main road; then with the road, Bryant Gainor's line, and with his line one hundred poles; then south one hundred and sixty poles, or far enough on the northwest or south lines to make one hundred and fifty acres; then east to Bridgeman's line; then with his line north to his corner; then east with Bridgeman's line to Jack's Creek; then with the run of said creek to the beginning." The beginning corner, marked "D" on the plot, is a known point, at the mouth of Moore's Branch on Jack's Creek, and the three succeeding calls it is admitted run with the natural boundaries, the branch, the main road, the Gainor's line by U to figure 1. It is also conceded that the last call in the description runs from the intersection of Bridgeman's line with Jack's Creek down that stream in a southeasterly direction to the beginning at D. If after running the three first lines to figure 1, the next call, "160 poles south," should follow the course, it would intersect with Jack's Creek at a distance of 130 1/2 poles, and northwest of the beginning, and would intersect there also with Bridgeman's line where said creek is his boundary. If the course is to be blindly followed, without regard to any limitation implied from the context, for the full distance, 160 poles, it would run entirely across Bridgeman's land and beyond any of Bridgeman's lines. But the descriptive words, "then south 160 poles," are followed by an alternative description which is inconsistent with a purpose on the part of the grantor to locate the next course south from figure 1. It is manifest that the intent was to run northwest along the line between N.W. Guilford and Gainor so far as it extended, to the point where, by running south to Bridgeman's line, and with it east to Jack's Creek, and down Jack's Creek to the beginning, there should (11) *8
be included in the whole boundary 150 acres. In Proctor v. Pool,
It is settled law that where the calls of a mesne conveyance are clear enough to be comprehended and located by extrinsic testimony, that location cannot be changed by a parol agreement between coterminous owners, unless it related to the running and marking contemporaneous with the making of the deed. Caraway v. Chancy,
NO ERROR.
Cited: Buckner v. Anderson, post, 575, 577; Cox v. McGowan,
