Branch, Ex Parte .

Counsel

Kornegay , for appellants, argued: I. The point is as to whether the alleged exception in the deed of trust is sufficient in law to amount to an exception. Coke says: "An exception is ever a part of the thing granted." Applying this rule to the case in point, we ask, what part is excepted? The deed does not tell us, neither does it refer to anything in existence by which the part alleged to be excepted may be identified. The description of the part excepted must be as plain and certain as the description of the thing granted. To give a deed any sensible operation, it must describe the subject matter of the conveyance, so as to denote upon the instrument what it is in particular. The want of such a description in the deed is fatal to the deed; the want of such a description in the exception is fatal to the exception. Kea v. Robinson , 5 Ired. Eq., 373; Massey v. Bellile , 2 Ired., 176; Waugh v. Richardson , 8 Ired., 470; Mann v. Taylor , 4 Jones, 271; Archibald v. Davis , 5 Jones, 322; Richardson v. Godwin , 6 Jones' Eq., 229; Grier v. Rhine , 69 N.C. 346 . II. The onus of proof of the part alleged to be excepted lies upon the party who would take advantage of the exception. No description of the part alleged to be excepted is given in the deed, neither is there any reference to any other paper writing made in the deed by which the part alleged to be excepted can be identified. No homestead had ever been set apart to any one, and no part of the land had received the. III. A sheriff was compelled to make a deed to the purchaser at execution sale, although defendant in the execution claimed the land as a homestead, because it had not been set apart as such previously to the sale, Scott v. Walton , 67 N.C. 109 . A clause in a deed "as long as the system of common schools shall be kept up at the place" is not expressed in apt terms so as to amount to an exception or limitation, but passes the fee simple title, School Committee v. Kesler , 67 N.C. 443 . V. Nothing is reserved by the alleged exception because nothing is described, Edmundson v. Hooks , 11 Ire. 373; Murdock v. Anderson , 4 Jones Eq. 77; Mallory v. Mallory , Bus. Eq. 80; Capps v. Holt , 5 Jones Eq. 154. VI. A description in a deed as of 752 acres of land including the land I now live on, and adjoining the same, is too vague to convey more than the tract lived upon. Robinson v. Lewis , 64 N.C. 634 . VII. But the plaintiff insists from the case of Jordan v. Hollowell , Term Reports page 605, in which this clause appears in the deed which was the subject of consideration: one half an acre of land where my grave yard is, which is at the end of my garden and the privilege thereto belonging is excepted;" that, that case is a sufficient authority to sustain the position of plaintiff in this case. But that case is not like this. In that case, the thing excepted was located and described `at the end of my garden,' one half an acre where my grave yard is . The grave yard is easily identified, and the quantity is shown by the exception. Not so in this case. No location and no description is given in the alleged exception, and no reference is made to any thing by which these things can be made to appear. The law in its solicitude to prevent uncertainty, the mother of contention and confusion, has been so precise as to prescribe in conveyances certain words for the creation of an estate of inheritance, and exceptions in these conveyances must be as definite and certain as the words of conveyance themselves. Co. Lit. 9, a. VIII. The construction of deeds must be strict, and the intention must be gathered from the four corners of the deed itself, and must govern the construction of every passage in it. Burton on real Property 164. 1 Russ, R. 260. Stallings , contra.