Overton v. Boyce
Overton v. Boyce
Opinion of the Court
Plaintiffs’ claim of title is based on the deed from H. H. Page and wife to Hannibal Badham, dated 30 December 1899, in which the subject lands are described as follows:
“ ... A certain tract of Pocosin Land adjoining the lands of the late Henderson Luton & others, containing, by estimation, Three Hundred and Nineteen Acres.”
An extended examination of the many cases on the subject of the sufficiency of the description takes us back to Pearse v. Owens, 3 N.C. 234 (1803). Cases on the subject have been compiled in Lane v. Coe, supra; Peel v. Calais, 224 N.C. 421, 31 S.E. 2d 440 (1944) ; Hodges v. Stewart, 218 N.C. 290, 10 S.E. 2d 723 (1940) ; and Perry v. Scott, 109 N.C. 374, 14 S.E. 294 (1891). More recent cases are State v. Brooks, 279 N.C. 45, 181 S.E. 2d 553 (1971) ; Carlton v. Anderson, 276 N.C. 564, 173 S.E. 2d 783 (1970) ; and Barringer v. Weathington, 11 N.C. App. 618, 182 S.E. 2d 239 (1971).
All of the cases on the subject cannot be reconciled. In Carlton v. Anderson, supra, at 565, Justice Higgins stated: “Some descriptions are so precise and definite as to leave no doubt about their sufficiency. Others are so vague and indefinite as to leave no doubt as to their insufficiency. Somewhere between these extremes is a dividing line. Near the line on
Generalizations are difficult to make. However, the decisions, taken collectively, warrant the conclusion that a deed is void for uncertainty where it purports to convey part of a larger tract but there is an absence of any indication of intent to convey a specific part of the tract. See State v. Brooks, supra; Carlton v. Anderson, supra; Cathey v. Lumber Company, 151 N.C. 592, 66 S.E. 580 (1909) ; Smith v. Proctor, 139 N.C. 314, 51 S.E. 889 (1905) ; and Robeson v. Lewis, 64 N.C. 734 ,(1870).
But where a deed purports to convey an entire tract and the description, though ambiguous and uncertain, points to some source from which extrinsic evidence may be used to make the description complete, the courts have held the deed to be sufficiently definite. Under Lane v. Coe, supra, for the plaintiff to maintain his action, the deed description must refer to something extrinsic by which identification might possibly be made; then, having cleared this hurdle, the plaintiff has the burden of proving the identity of the land with certainty. In Stewart v. Cary, 220 N.C. 214, 17 S.E. 2d 29 (1941), the description in the deed “also the tract on Indian Camp Branch known as the Hamlin Tract” was held sufficiently definite, and Justice Winborne (later Chief Justice) in his opinion for the court listed numerous causes in which the court held the deed descriptions to be sufficient. In Perry v. Scott, supra, the deed description, somewhat similar to that in, the subject case, was “lying and being in the county of Jones, bounded as follows, to wit: On the south side of the Trent River, adjoining the lands of Colgrove, McDaniel and others, containing three hundred and sixty acres, more or less.” The court held that the description was not so vague and indefinite as to exclude the introduction of parol evidence to fit it to the land.
However, it further appears that the court in granting summary judgment relied heavily on the four deeds to Hender
We find that the summary judgment was improvidently entered and erroneously disposed of a genuine issue of fact, i.e., the identity of the land. At trial the plaintiff máy offer extrinsic evidence to identify the land, and the defendants may- offer such evidence with reference thereto tending to show impossibility of identification.
The summary judgment of the trial court is reversed and this cause remanded.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.