The following is a copy of the material part of the case stated on appeal:
"The action was brought to foreclose a mortgage. The descriptive words of the deed are: `A tract of land lying in Greene County, N.C. adjoining the lands of Patrick Lynch and R. N. Bowden, situate on the east side of the road leading from Jerusalem Church to Patrick Lynch's, it being a portion of their part of the original Gray R. Pridger tract and containing fifty acres.'
"The jury having been empaneled, the plaintiffs offered to read said deed to the jury, and the judge having intimated that the description therein was insufficient and that the plaintiffs could not recover, they submitted to a nonsuit and appealed." Generally, if the description of the land intended to be embraced and the title thereto conveyed by the deed is so indefinite or uncertain as that it fails to designate the land meant, the deed is inoperative and void. It is however a general rule that the (81) deed must be upheld if possible, and the terms and phraseology of description will be interpreted with that view and to that end if this can reasonably be done. The Court will effectuate the lawful purpose of deeds and other instruments if this can be done consistently with the principles and rules of law applicable. Proctor v. Pool, 4 Dev., 370.
We think that the description in the deed in question of the land embraced by it sufficiently points to a particular tract of land — not an indefinite and undefined part of a tract — but a certain tract so described as that it may be ascertained. *Page 90
If the words "it being a portion of their part of the original Gray R. Pridger tract and containing fifty acres," be omitted from the description, it would be substantially like that held to be sufficient in Kitchen v.Herring, 7 Ired. Eq., 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 McLawhorn 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 Braxton, James Hines, T. N. Manning, Cobb Tripp and others, containing three hundred and sixty acres, more or less." So that if the words of description were only these, "A tract of land lying in Greene County, N.C. adjoining the lands of Patrick Lynch, and R. N. 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. Then do the additional words, "it (the land) being a portion of their part (that is the part of Patrick Lynch and R. N. Bowden) of the original Gray (82) R. Pridger tract and containing fifty acres," control the description and render it insufficient? We think not.
The last recited words were not the principal or leading words of description, but intended simply to give the description more particularity by designating the land as "a tract lying," etc., "it being a portion (a designated, described portion) of their part," etc., that is a tract of fifty acres identified and taken from "their part of the original," etc. Hence the land is described as "a tract," a body of land having distinctive identity, "adjoining the lands of," etc. How could it adjoin the lands of the persons named if it were not designated by some boundary? If it were a confused, undescribed portion of "their part of the original Gray R. Pridger tract," it is not at all probable that it would have been described as "a tract of land lying," etc., adjoining "their" land.
The interpretation of the description of the land we have thus given it seems to us is reasonable, and it renders the deed operative, if the plaintiff can on the trial by proper evidence identify the land as described in the deed. He must give evidence of a tract of land as designated.
Error.
Cited: Blow v. Vaughan, 105 N.C. 205; Perry v. Scott, 109 N.C. 382;Martin v. Chambers, 116 N.C. 673; Potato Co. v. Jenette, 172 N.C. 5;Randolph v. Lewis, 196 N.C. 54. *Page 91