Holloman v. Davis

78 S.E.2d 143 (1953)

238 N.C. 386

HOLLOMAN et ux. v. DAVIS et al.

No. 166.

Supreme Court of North Carolina.

October 14, 1953.

*145 W. D. Boone, Winton, for Elsie M. Holloman, appellant.

John R. Jenkins, Jr., Aulander, and Pritchett & Cooke, Windsor, T. A. Burgess, Rocky Mount, for co-defendants, appellees.

DEVIN, Chief Justice.

The ruling of Judge Williams that the mortgage and deed which Elsie Mae Holloman offered as evidence of her title to a one-half undivided interest in the lands described in the petition for partition were insufficient for this purpose, we think, should be upheld. The description in these instruments is insufficient to identify and make certain the land intended to be conveyed, nor is it sufficient to be aided by parol testimony to fit it to the two separate tracts of land described in the petition. The land is described in the deed to Sallie Holloman and in the petition as two separate and distinct tracts of land more than a quarter of a mile apart, separated by a public road, and between these two tracts lie tracts of land belonging to other landowners. The designation of the land in the mortgage under which appellant claims as "the Evans tract," under the evidence in this case, was uncertain and insufficient to identify the land.

"It is essential in order that a deed may be operative as a legal conveyance that the land intended to be conveyed be described with sufficient definiteness and certainty to locate and distinguish it from other lands of the same kind. If the land intended to be conveyed is not identifiable from the words of the deed, aided by extrinsic evidence explanatory of the terms used, or by reference to another instrument, the deed is inoperative." 16 Am.Jur. 584.

For the purpose of identifying land described in a deed the statute G.S. § 8-39 permits the introduction of parol testimony to identify the land and to "fit it to the description contained" in the deed, and by G.S. § 39-2 certain elements of vagueness in the description are declared insufficient to render the deed void.

But these statutes apply only when there is a description which can be aided by parol, and cannot be held to validate a deed where the description is too vague and indefinite to identify the land claimed and to fit it to the description. Katz v. Daughtrey, 198 N.C. 393, 151 S.E. 879. In the language of Justice Barnhill in Peel v. Calais, 224 N.C. 421, 31 S.E.2d 440, 443: "At all events, the description as it may be explained by oral testimony must identify and make certain the land intended to be conveyed. Failing in this, the deed is void."

The statutory rule permitting the use of parol testimony to fit the description in the deed to the land intended to be conveyed does not relieve the invalidity due to vagueness, indefiniteness and uncertainty unless there be elements of description which are either certain in themselves or are capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The liberal rule of construction does not permit the passing of title to land by parol. As stated by Justice Winborne in Powell v. Mills, 237 N.C. 582, 75 S.E.2d 759, 765, "Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought." See also North Carolina Self-Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, and Peel v. Calais, supra, where the authorities in support of this principle are collected.

Judgment affirmed.