AVERY, J., dissenting.

The defendant claimed under deed made by a sheriff on sale under execution, in which the land was described as "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 plaintiff insisted that the description in this deed was so vague and uncertain that parol evidence could not be received in aid of it, but his Honor being of a contrary opinion, admitted the evidence, and plaintiff excepted.

There was judgment for defendant, and plaintiff appealed.

SHEPHERD, J.

The single question presented for our consideration is whether the description in the deed offered by the defendant is (375) so vague and uncertain as to preclude any testimony whatever tending to fit it to the land in controversy. In other words, is it a patent ambiguity, which, according to Lord Bacon, "is never holpen by averment," and in the language of Pearson, J., entirely "a question of construction" for the Court? Institute v. Norwood, 45 N.C. 65.

As the sufficiency of the testimony offered by the defendant is not made the subject of exception, and as such testimony is not set forth in the case upon appeal, it must follow that if we can conceive of any testimony which would with reasonable certainty fit the description to the land in question, the ruling of his Honor should be affirmed.

The deed of the sheriff reciting a judgment against Daniel Perry, an execution, levy and a sale under venditioni exponas, it must, upon every principle of construction, be inferred that it is the land of the said Perry that is sought to be conveyed, and this being so, we are of the opinion that testimony to the effect that at the time of the sale the said Perry owned but one distinct tract of land in the county of Jones "on the south side of Trent River adjoining the lands of Colgrove, McDaniel and others containing three hundred and sixty acres, more or less," would have warranted the jury in finding that the land had been sufficiently identified. This result, it seems, would have been conceded had the words "bounded" or "bounded by" been substituted for the word "adjoining," and it is earnestly insisted that, by reason of this distinction, the deed is void upon its face.

Without adverting to the presence of the word "bounded" in the first and more general part of the description, and pretermitting the question whether that word may not well be transposed so as to be construed in connection with the last and more particular language there used, we will proceed to consider the correctness of the contention of the plaintiff. In doing this, it is our purpose to avoid a discussion of the general doctrine of description in deeds, believing, as we do, that it is unprofitable, if not dangerous, to anticipate cases that may (376) hereafter arise upon this very difficult and vexatious subject.

The principle asserted finds support in what is said in Blow v. Vaughan, 105 N.C. 198, and the subsequent decision in the case of Wilson v. Johnson, ib., 211; but upon a very careful examination of the previous decisions of this Court, induced by the reflection that its adoption may materially affect many titles in this State, about which there has been and can really be no doubt as to the actual identity of the lands conveyed, we are satisfied that the distinction mentioned is not sustained either by reason or authority, and that the overwhelming weight of judicial decision is against it.

In view of the very serious consequences that may follow its further recognition, we think that what we conceive to be a mistake should be corrected, and, as Pearson, C. J., says, "the sooner the better, for if the error is allowed to spread, it may insinuate itself into so many parts and become so much ramified as to make it impossible to eradicate it without doing more harm than good. But if the seed has not spread too much, pull it up and throw it away." Gaskill v. King, 34 N.C. 223.

An examination of the case of Blow v. Vaughan, supra, will show that the decision was clearly correct, but that what was said by the learned Justice who delivered the opinion, as bearing upon the particular point now under consideration, was unnecessary to the disposition of the appeal. The description in the deed was "fifty acres of land lying in the county of Hertford and bounded as follows: By the lands of John H. Liverman, John P. Liverman and Isaac Snipes." The Court held that parol testimony was permissible to fit the description to the land, but as it appeared that the description embraced a tract of one hundred and twenty-five acres, and there was no sufficient testimony to locate any particular fifty acres, it was determined that the land sued (377) for had not been identified. The complaint substituted the word "adjoining" for "bounded," "but it was not insisted (says the opinion) that there was a fatal variance between the land declared for in the complaint and that embraced in the descriptive clause of the deed offered to show title." The discussion, however, extended to the sufficiency of the complaint, and while it was said that the description, as there stated, was too indefinite to be susceptible of explanation by parol testimony, it was also explicitly declared that as the complaint might "have been amended or incorrectly copied," the action would not be dismissed because of the use of the word "adjoining" in the place of the word "bounded," nor because of variance between the allegation and proof, "for," continued the opinion, "the point was not made as it might have been." From this it is plainly seen that the statement that the description contained in the complaint was too vague and indefinite, was unnecessary to the determination of the appeal, and was in that sense a dictum and not necessarily binding on the court. It is true, however, that the principle was approved in Wilson v. Johnson, supra (decided at the same term), but by a reference to the very brief opinion in that case, it will appear that the decision was founded solely upon what was said in Blow v. Vaughan, supra.

Under these circumstances we feel at liberty to examine into the previous decisions of the Court with a view of determining whether the principle mentioned should remain unquestioned and become settled judicial authority in this State.

The great practical importance of the question must be our excuse for a somewhat extended and perhaps tedious examination of the cases upon the subject.

First, let us look into "the reason of the thing," without reference to the authorities.

When one has paid out his money and taken a deed for land, (378) it would offend every principle of natural justice to deprive him of his property unless it is required by some positive rule of law, the strict enforcement of which is imperatively demanded on the ground of public policy. Therefore it is that the courts will not lightly pronounce deeds to be void because of imperfect description if the land can with reasonable certainty be identified; and in the numerous decisions of this Court upon the infinite variety of descriptions presented for construction, there can be seen but one clear and unwavering purpose in the minds of the judges, and that is, without contravening the statute of frauds, to give effect to the true intention of the parties. Ut res magis valeat quam pereat. In doing this, they have found it impossible, as Ruffin, C. J., once said, to formulate any artificial rules by which, in many cases, this intention is to be ascertained, and they have necessarily been compelled to resort, in such instances, to those principles of reasoning which commend themselves to men of plain and ordinary understanding.

Now if I own a distinct tract of land and describe it in a conveyance as a tract of so many acres, more or less, "adjoining the lands of A, B, C and others," would it occur to any layman of common intelligence that the description was so vague and indefinite on its face that it would be useless to attempt to identify it? And if it were shown that I owned but one tract adjoining A, B, C and others, and that I had no other lands whatever, or none adjoining those parties, would he not be astonished when told that the deed furnished no means by which the land could be identified, and that on account of the use of the word "adjoining" instead of "bounded," or "bounded by," it conveyed nothing whatever? We think it would be a troublesome task to make him understand why, in such a case, these latter words are necessary, while he could very readily appreciate their significance if the land described was not a distinct tract, or was (as in Allen v. Chambers, (379) 39 N.C. 125) a part of a larger tract.

In such cases the words mentioned, or others of similar import, might become very material; but we repeat that it is not easy to understand how they are so important in the case put by way of illustration.

Neither would the argument in Harrell v. Butler, 92 N.C. 20, be appreciated, for it cannot be seen how such a description would apply (as is said in that case) "to one tract as well as another that adjoins" them, when there is only one tract belonging to the grantor that does so adjoin them; nor can it be understood what difference it makes whether this one distinct tract might "lie as well on the one side as the other of the lands belonging to those persons."

That the description we have mentioned is not so vague and indefinite as to exclude the introduction of parol testimony to fit it to the land, is, we think, well sustained by the very great preponderance of the decisions in this State. But before referring to these, we will examine the cases cited in support of the contrary view:

In Horton v. Cook, 54 N.C. 270, the description is dissimilar to ours and the grant was held good. The case, therefore, is not in point.

In Fuller v. Williams, 45 N.C. 162, the description is, "Henry Fuller enters one hundred acres of land on the waters of Uharee, adjoining the lands of his own and runs for complement." It was held that the entry was too vague to amount to notice to a junior enterer who had surveyed his land and taken out a grant. A perusal of this case will very clearly suggest that the one hundred acres was but a part of a larger tract.

In Allen v. Chambers, 39 N.C. 126, the description is, "a certain tract of land lying on Flat River, including Taylor Hicks's spring house and lot, adjoining the lands of Louis, Davies, Womack and (380) others." It was declared too indefinite, "because it mentions no quantity, nor how any land is to be laid off around the improvements of Hicks." It is manifest that the Court did not decide that the word "adjoining" would have been insufficient had the whole tract been conveyed; and that the Court considered that it was a part of a larger tract, is clearly evident from the words "to be laid off," etc., as well as from the facts appearing in the evidence.

In Grier v. Rhyne, 69 N.C. 346, the description is, "a certain piece of land in the county aforesaid, adjoining the lands of A and B, being a part of the Alexander tract, supposed to contain thirty or thirty-five acres." It appearing that the tract out of which this quantity was to be taken contained seventy acres, and there being nothing to locate the same, it was held that the land was not identified.

We feel sure that these decisions are not applicable to the case put by us, in which the whole of a distinct tract is the subject of the conveyance.

In Dickens v. Barnes, 79 N.C. 490, the description is, "one tract of land lying and being in the county aforesaid, adjoining the lands of John A. Phelps and Norfleet Pender, containing twenty acres, more or less." The description omits the words "and others," which seem to have been regarded in some cases of doubt, as important (see Harrell v. Butler, supra), and the decision is therefore not precisely in point. In Harrell v. Butler it is very nearly intimated that Dickens v. Barnes is overruled by Farmer v. Batts, 83 N.C. 387. In Harrell's case (which seems to be more in point than any of the others cited), the description was "all my interest in a piece of land adjoining the lands of J. K. and others." The Court held it to be insufficient, and distinguished it from Farmer v. Batts, because no quantity was stated; whereas, in our case, both the quantity and the words "and others" are set forth. It will be seen that none of the foregoing cases are directly in point, and without pausing to discuss the very nice shades of distinction upon (381) which some of them appear to have been decided, we will now proceed to mention several of the many decisions which, it seems to us, undoubtedly sustain our view. In doing this, we will (as was done in Blow v. Vaughan, supra) include the cases in which the words "and others" are omitted; for if, as suggested in some of the decisions (see Harrell's case, supra), their presence is considered as making the description more definite, the cases sustaining descriptions without those words are all the more forcible as authority. Besides, they are important upon the question more immediately under consideration, to wit, the sufficiency of the word "adjoining," when used as a part of the descriptive clause of a deed in certain instances.

In Hinton v. Roach, 95 N.C. 106, the descriptive words, "a certain tract in N. Township, adjoining the lands of H.S. and others, said to contain 37 1/2 acres," were sustained, and thus we have, at the beginning a case later than any of the foregoing, which is admittedly in point. It will be noted that the Court did not overlook Harrell's case as Justice Ashe, who delivered the opinion in both cases, cited it among other authorities referred to by him.

In Wharton v. Eborn, 88 N.C. 344, we have another direct authority. The descriptive words were, "a certain parcel of land situate in B. County on R. Branch, adjoining the lands of W. L. Tyre, Henry Ormand and the lands formerly belonging to B. W. Hodges, and containing 140 acres, it being the same land conveyed by John W. Earle to said Rowland by deed dated 28 May, 1868." The deed from Earle to Rowland does not appear to have been put in evidence, nor was there any testimony as to its boundaries. This eliminates the latter part of the description and leaves it similar to that in Hinton v. Roach, supra. The surveyor testified that he had surveyed the lines of the adjoining lands and knew the description from the deed, and that no other tract in the county would fit the description. The Court sustained the description upon this testimony, remarking that, "according to the testimony of the surveyor, the terms used indicate to one (382) acquainted with the watercourses and the adjoining tracts called for, the very land in question, and could not have been applicable to any other."

In Edwards v. Bowden, 99 N.C. 80, the description was "a tract lying in G. County, N.C. adjoining the lands of P. L. and R. N., situate on the east side of the road leading from Jerusalem church to P. L.'s, it being a portion of their part of the original Pridgen tract, and containing fifty acres." The Court said ( Merrimon, J., delivering the opinion) that if the words "it being a portion of their part of the original Gray R. Bridgers' tract containing fifty acres," be omitted from the description, it would be substantially like that held to be sufficient in Kitchen v. Herring, 41 N.C. 190. The words in that case were "a certain tract of land lying on the southwest side of Black River, adjoining the lands of William Haffland and Martial," and in McGlawhorn v. Worthington, 98 N.C. 199, the description held to be sufficient was "all that tract or parcel of land situate in said county and bounded as follows: Adjoining the lands of Augustus Brackston, James Hines, T. N. Manning, Cobb, Tripp and others, containing three hundred and sixty acres, more or less." So that if the words of the description were only these: "A tract of land lying in Greene County, North Carolina, adjoining the lands of Patrick Lynch and R. M. Bowden, situate on the east side of the road leading from Jerusalem church to Patrick Lynch's," there could be no reasonable question as to the sufficiency of the description. In the course of the opinion it was further remarked: "Hence, the land is described as a tract, a body of land having descriptive identity, adjoining the lands of," etc. How could it adjoin the lands of the persons named if it were not designated by some boundary? Here (383) we have an explicit approval of the efficacy of the word "adjoining," which is fully supported by authorities cited.

Pausing here for a moment, we will remark that the necessity for the presence of the word "my" or "my lands" in such descriptions in conveyances by the owner, as indicated in several of the older cases, seems, from a perusal of the foregoing decisions, to be no longer recognized, and their immateriality is distinctly declared by the late distinguished Chief Justice in Farmer v. Batts, supra, where he says "that the assertion of title in the vendor is not less unequivocally involved in the very act of disposing of it as his property." It would indeed seem but charitable to assume that he who undertakes to convey property intends to dispose of what he claims to be his own.

But to resume: In addition to other cases that may be cited, we have a series of decisions as to the sufficiency of levies on executions issued by justices of the peace under a statute which required the officer to designate "the lands and tenements he has levied on where situate, on what watercourse and whose land it adjoins." Revised Code, ch. 62, section 16.

It is urged that these decisions ought to be confined to cases arising under the statute, and should not be considered in the construction of ordinary conveyances. But if we examine into the purpose of the statute, it will plainly appear that such a contention is without foundation. Under the former law, the land of the judgment debtor was bound by the feiri facias, and it was not essential to the acquisition of a lien that a levy should have been made. It was otherwise when an execution was issued by a justice of the peace, in which case the lien was created only by the levy, which must, says Pearson, J., have had "a certain degree of particularity so as to identify the land and enable the sheriff to sell under the venditioni exponas, and of which notice must have been given." Judge v. Houston, 34 N.C. 113. It was for the very purpose of insuring this particularity that the statute was enacted, and it is quite difficult to understand, why (in the solicitude of the Court to up (384) uphold deeds and effectuate the intention of the parties) this plain and unequivocal legislative construction should not be followed in all cases. That it has been so recognized and acted upon in the construction of ordinary contracts and deeds, is manifest from several of our decisions. Notably is this so in Kitchen v. Herring, supra, where it is said that "the description in this contract is similar to that constantly made by constables in levies upon land, from which sheriffs have no difficulty as to what land to sell and how to make deeds." See also Farmer v. Batts, supra, in which Ward v. Saunders, 28 N.C. 382 (a case relating to a justice's levy), was cited as authority, and where the application of such decisions to descriptions generally is expressly admitted and acted upon.

We will now refer to a few of these descriptions which have been held sufficient:

"Levied on the lands and tenements of Isham Doby, adjoining the lands of Allan Newsome, Claiborne Newsome and others." Ward v. Saunders, supra.

"Levied on the legal and equitable interest of Abraham Paul to 450 acres of land, more or less, in R. County, adjoining the lands of Giles McLain, Dugald McCullom, John McLain and others." McLean v. Paul, 27 N.C. 22.

"The lands of defendant in the county of Chatham, on waters of Tyson Creek, adjoining the lands of Bryant Burroughs and others, containing 200 acres, more or less." Hilliard v. Phillips, 81 N.C. 99.

"Levied this execution on the land of S. M. Hunter, on the east side of the North East River, adjoining the land of Stephen M. Grady, and others." Judge v. Houston, supra.

We could cite other cases in support of the sufficiency of the word "adjoining" when used as indicated in the example we have put, but it would seem unnecessary in the presence of this consensus of judicial opinion, and we are now somewhat surprised that there should ever have been any doubt upon the subject. (385)

In consideration of this great weight of authority, and in view of the serious results which may follow a further approval of the principle in question, we think that we should go back to where we stood before the dictum in the case of Blow v. Vaughan, supra; and although we may often be perplexed in deciding particular cases of this character by reason of the inherent difficulties of the subject, it is far better, in our opinion, to meet these as they arise, with an anxious effort to give effect to the intention of the parties, than by the adoption of a procrustean rule, to shut out, in many instances, all inquiry whatever. The other exceptions are without merit.