Opinion
(June Term, 1860.)
Where a testator, owning a parcel of land embracing two town lots, on which he had settled a woman, having built her a dwelling on one lot and an out-house on the other, and permitted her to enclose a garden, partly on each "lot, and to use the whole parcel enclosed within one fence, devised to her the lot of ground and house thereon erected in the said town where she now lives," it was Held, that the whole parcel, embracing both lots, passed by the devise.
EJECTMENT, tried before Saunders, J., at last Spring Term of (474) EDGECOMBE.
W. T. Dortch for plaintiff.
B. F. Moore for defendant.
Case agreed. The lessor of the plaintiff, a colored woman, claims title under the will of Henry S. Lloyd, made in 1860, which contains the following clause: "I give and devise to Mary Ann Jones, a free colored woman of the said town of Tarboro, and to her heirs and assigns forever, the lot of ground and the house thereon erected in the said town, on which she now lives."
The defendant, William Norfleet, being authorized, as executor, to sell the testator's real estate in the town of Tarboro, except such as was specifically devised, took possession of Lot 118, insisting that only Lot 107 passed to the lessor of the plaintiff. (See diagram.)
The two lots adjoin each other, and together constitute one (475) acre, and are enclosed under one fence, except 9 or 10 feet of Lot 118 at the upper end, which was difficult of enclosure on account of its steep descent. They are situated in the suburbs of the town.
In 1856, before the lots were enclosed, the devisor erected on Lot 118 an ice-house, at a cost of some $800, for the purpose of storing ice for the use of a tavern in the same town, of which he owned one-half, which tavern he directs in his will to be sold.
The said two lots were surrounded by a board fence in 1857, and in the same year the devisor built the dwelling-house on Lot 107 for the lessor, who immediately thereafter took possession, and has continued to reside in it ever since.
There is not, nor has there been, any designation of a dividing line between the two lots. In the spring of 1859 the lessor of the plaintiff enclosed a small portion of the ground for a garden. There was on Lot 107 a smokehouse, which was built when the dwelling was erected by the devisor, and afterwards he built on Lot 118, for the use of the lessor, a small privy. Beside the ice-house, on Lot 118, the devisor built, in
, SEE 52 N.C. 366.]
1858, a rude cabin for an aged slave, whom he had in charge, to which is attached quite a small garden, which was used by this slave. The lessor had the use, for the purpose of cultivation, of all the residue of both lots.
In the plan of the town the lots are 50 yards square, by actual measurement, and according to such measurement part of the lessor's garden and the privy are situated on Lot 118. The divisor acquired both these lots from the same person at the same time. He resided near them, and frequently saw them, but whether he knew where the line between them would run cannot be stated. There is no mark or trace of the boundary of the upper end of 118.
It was agreed by counsel that if his Honor should be of opinion that the plaintiff was entitled to recover on the foregoing statement of facts, judgment should be rendered accordingly; otherwise judgment for the defendant.
His Honor pro forma gave judgment for plaintiff, and (476) defendant appealed.
The case turns upon the proper construction of the bequest to the lessor contained in the will of Henry S. Lloyd.
The facts are distinctly and clearly stated, and after duly considering them, in connection with the language of the will, we are of opinion that the entire parcel of ground, embracing Lots 107 and 118, passed under the devise, except such portion as had been appropriated by the devisor to the ice-house and to the cabin and garden of the old slave.
The term lot, used in the description of the ground devised, is not found in such connection nor employed in such way as to lead to the conclusion that the testator had in his mind at the time a plan of the town, and intended to restrict the occupation then enjoyed by the woman to the lot in the plan, on which her dwelling-house stood, but we suppose the term "lot" was used as synonymous with piece or parcel, and in such case it would clearly embrace not only the spot on which the house or houses stood, but also all the ground which was used as appurtenant to the dwelling. In Stowe v. Davis, 32 N.C. 431, the phrase, "the plantation on which I now live," was held to embrace two tracts, bought at separate times and from different individuals, but which had been worked together by the testator as one plantation. And in Bradshaw v. Ellis, 22 N.C. 20, it was held that the expression "my plantation" carried two parcels, not adjoining, which had been worked together.
It seems that one of the outhouses belonging to the dwelling was situated on Lot 118. The garden used by her was partly on one lot and partly on the other. Both lots were in one general enclosure, and the possession and use by the woman extends over the whole, except that part actually occupied by the ice-house and by the cabin and (477) small garden of the old slave, as above stated. These facts, which it is proper for us to consider "in fitting a thing to the description," strengthen the conclusion that the gift to the woman is not confined to the 50 yards square, called a lot in the plan of the town, but extends, at least, to the lands enclosed and used in connection with the house. A different construction would create the necessity of making a change in the location of the outhouse, garden, fences, etc., which, if the testator had intended, he would hardly have failed to notice.
PER CURIAM. Affirmed.