Opinion
(December Term, 1840.)
1. By a proper reference of one deed to another, the description in the latter may be considered as incorporated into the former, and both be read as one instrument, for the purpose of identifying the thing intended to be conveyed.
2. But there must be no inconsistence between the calls of the latter deeds and the former deeds or grants; as, for instance, where the former deed or grant calls for a line of another patent and the latter deed omits that call, but goes for a particular course and distance, and only professes to convey a part of the tract embraced by the grant or former conveyance. In such a case the course and distance called for, being the specific description in the deed, must prevail.
EJECTMENT, tried at Fall Term, 1840, of RICHMOND, before Settle, J., in which there was a nonsuit, and the plaintiff appealed to the Supreme Court.
Strange for plaintiff.
No counsel for defendant.
The lessor of the plaintiff deduced title as follows, towit:
1. A grant in favor of George Webb, bearing date 18 April, 1771, describing the land as follows, towit: between the south prong of Cartledge's Creek and Baggett's Branch, northeast of Peedee River, beginning at a blackjack by Crawford's corner, a dead hickory, and runs thence north 60 east 19 chains 79 links near three blackjacks, then north 30 west 44 chains 73 links to a stake among 4 pines, then south 60 west 10 chains by a pine in Jackson's line, then with it south 35 west 27 chains to a stake among three pines, then south 60 west 18 chains and 23 links, then south 30 east 33 chains and 30 links, then north 60 east 33 chains 30 links to the beginning.
2. A deed from George Webb to Lawrence Everitt, dated 25 January, 1780, describing the land in totidem verbis, as in the patent; and also as 200 acres of land granted the said George Webb by patent, dated 17 April, 1771.
3. The will of Lawrence Everitt, dated 31 May, 1800, and admitted to probate September, 1803, giving the land to his four children, William, Lawrence, Elizabeth, and Hannah. Elizabeth had since (253) intermarried with Jesse Williams, and was still alive; Mrs. Williams, the widow of Lawrence, was dead.
4. A deed from William Everitt, Lawrence Everitt, and Jesse Williams to William Everitt, dated in 1810, the descriptive parts of which are: "A part of a tract of land, the said tract containing 200 acres, was granted unto George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, deceased, to William and Lawrence Everitt and Jesse Williams, his sons, three of the legatees. Beginning at a stake and runs north 60 east 29, 79 to three blackjacks, thence north 30 west 44, 73 to a stake, thence south 60 west 10 poles, thence south 37 west 27 chains to three pines, then south 60 west 18, 23, thence south 30 east 33 chains and 30 links, thence north 60 east 33 chains 30 links to the beginning, the same containing 200 acres, more or less; the said William and Lawrence Everitt and Jesse Williams, their heirs and assigns forever, do bargain, sell and convey unto William Everitt 150 acres out of the above 200 acres, three children's part at the death of Mary Williams, formerly the wife of Lawrence Everitt, the mother of William and Lawrence Everitt and Jesse Williams."
5. A deed from William Everitt to John Everitt, the lessor of the plaintiff, dated in 1824, which described the land as follows: "A piece or parcel of land containing 150 acres, being three-fourths of a tract of land of 200 acres, which Lawrence Everitt, Sr., owned at his death; and the part hereby conveyed being the parts formerly belonging to William Everitt, Sr., Lawrence Everitt, Jr., and Jesse Williams, in right of his wife, in the aforesaid tract; for the boundaries of the said 150 acres of land reference is to be had to the deed of conveyance from the aforesaid legatees, except that 50 acres of said land is encumbered with the life estate of Mrs. Mollie Williams, formerly the widow of the said Lawrence Everitt, Sr."
6. A deed from Hannah Everitt to the lessor of the plaintiff, dated in 1827, and describing the land conveyed as follows: "A part of a tract of land, the said land containing 200 acres, granted unto (254) George Webb, from Webb to William Thomas, from Thomas to Lawrence Everitt, deceased, and then the said tract beginning at a stake and runs north 60 east 19, 79 to the three blackjacks, then north 30 west 34, 73 to a stake, thence south 60 west 18, 23, thence south 30 east 33, 50, then north 60 east 33, 20 to the beginning, the same containing 200 acres, more or less, and my part being the fourth of the above described tract of land, willed to me by my father, Lawrence Everitt."
Upon the trial in the Superior Court, two questions arose. The first question was whether the mesne conveyances passed all the interest of the bargainors under the Webb patent, or only so much thereof as was covered by the courses and distances set forth in said deed. This question his Honor reserved, and directed the parties to go on with the investigation of the other question, with the understanding that the verdict should be set aside and judgment rendered for the defendant, if such verdict should be in favor of the plaintiff, and the court should be of opinion that the mesne conveyances passed only so much of the interest of the bargainors as was contained within the courses and distances set forth.
The other question was, whether the third line of the Webb patent stopped at the end of its course and distance, or extended to Jackson's line. And in the latter case it was proved that the third line of the Webb patent would be twice as long as in the former case. Upon the charge of the judge on this question, the jury gave a verdict for the plaintiff.
On the reserved question the judge was of opinion that the special description by course and distance in the mesne conveyance controlled the more general description by reference to other conveyances, and that consequently they did not cover the land in dispute; and he set aside the verdict, and entered a judgment for the defendant, from which the plaintiff appealed.
A plat of the survey was annexed to the case, but it is deemed unnecessary to insert it, as the only question determined by the Supreme Court was whether the mesne conveyances to the lessor of the (255) plaintiff covered the same land that was covered by the grant to Webb.
If it be admitted that the grant to Webb covers the land in dispute, yet if the deeds to the lessor of the plaintiff do not also cover some part, he has no title, and the verdict ought to have been for the defendant. Upon this last point we entertain the same opinion his Honor gave, and as that is decisive against the action, it is unnecessary to consider the other point.
It is clear that according to the description by metes and bounds contained in the deeds to the lessor of the plaintiff, neither of them embraces any portion of the land in controversy. In the grant the third line runs south 60 west 10 chains by a pine in Jackson's line, thence with it south 35 degrees west, etc. It is by the force of these calls, if at all, that the patent covers the land in possession of the defendant. Now, the deed from the sons, if it be admitted to run with the patent to the second corner, runs "thence south 60 west 10 poles" instead of 10 chains, and does not call for Jackson's line, nor for any object to control course and distance. It must therefore stop at the end of the distance, and then run so as to leave out the whole land in dispute. The deed from Hannah Everitt is still more defective. In the grant the second line runs north 30 west 44 chains and 73 links to a stake among four pines. In this deed it runs the same course 34 chains and 73 links, and the pines are not called for, but a stake only. Stopping 10 chains short of what is called for in the patent (supposing this last to include the land in dispute), it is obvious that the disputed land cannot be included, even if the subsequent calls in the deed correspond with those in the patent. The deed omits the two next lines altogether, and describes the tract as having, instead of six, only four lines.
But it is urged that these defects are supplied by the reference to the grant to Webb and by other general terms, which, it is said, denote an intention to convey all the land the bargainors derived from Lawrence (256) Everitt, namely, the whole tract granted to Webb. We do not doubt that, by a proper reference of one deed to another, the description of the latter may be considered as incorporated into the former, and both be read as one instrument for the purpose of identifying the thing intended to be conveyed. That was done in Ritter v. Barrett, 20 N.C. 266, and in Campbell v. McArthur, 9 N.C. 33. But in those cases the calls in the several deeds were not inconsistent with each other, and there was a manifest intention to convey the whole or a certain part of the particular tract described in the grant or deed referred to. Therefore such a reference was allowed to help an imperfect description, so as to make it conform to the principal intention. But in this case the calls of the patent and the deeds are absolutely inconsistent, and cannot be reconciled. Moreover, each deed sets out with the declaration that the bargainors meant to convey "a part of a tract of land," and not the whole tract that was granted to Webb; and then it proceeds to give a specific description by courses and distances, which do in fact include a part and but a part of the land granted to Webb. It may be possible and probable that the part was such part of the whole tract as the bargainors were respectively entitled to. But that is not said, and can only be conjectured; and, without a plainer guide than mere conjecture, we are not at liberty to depart from the terms of special description contained in the deeds.
PER CURIAM. No error.
Cited: Euliss v. McAdams, 108 N.C. 511; Johnston v. Case, 132 N.C. 798; Gudger v. White, 141 N.C. 515; Vick v. Tripp, 153 N.C. 94; Lumber Co. v. Swain, 161 N.C. 568; Ipock v. Gaskins, ib., 680.
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