Action for $2,900 damages, alleged to have been sustained by the plaintiff, by reason of the negligent and wanton conduct of the defendant in entering upon certain land, belonging to the plaintiff, and cutting the timber thereon, and appropriating it to his own use.
The defendant admitted the cutting of the timber upon the plaintiff's land and attempted to justify his conduct by a claim of right to the timber, under a deed therefor from one O.G. Minshew (date not given in the record), who prior thereto, on October 19, 1917, received from the plaintiff a deed therefor.
There is no question but that the deed from Mrs. McIntyre (the plaintiff), to Minshew, upon its face, conveyed to him all of the timber of stated description on the entire tract of land which belonged to the plaintiff, containing 500 acres more or less bounded as stated with particularity, in the deed. It is equally beyond question that the deed from Minshew to Cameron (the defendant), upon *Page 240 its face, conveyed to him the same timber in as ample terms.
The contention of the plaintiff is in effect that, although the deed from Mrs. McIntyre to Minshew is in as ample terms as stated, the contract between them was that a certain particularly well-wooded portion of the 500-acre tract, containing 77.7 acres, should be reserved; that the right to cut the timber upon that reservation was not conveyed to Minshew and could not be conveyed by him to Cameron.
The plaintiff endeavored to sustain this contention by offering in evidence a certain plat, referred to in the deed to Minshew which represented a survey of the 500 acres, and particularly delineated the reservation of the 77.7 acres of woodland; also evidence tending to show that, before the teed to Minshew was delivered, the contract between him and Mrs. McIntyre expressly excluded this area, and that, before the deed to Cameron was delivered, Minshew carried him out upon the land and pointed out specifically a blazed line, separating the excluded area from the remainder of the tract.
The presiding Judge, upon objection, excluded all this evidence as tending to vary the terms of the deed from Mrs. McIntyre to Minshew, holding:
"Any separate agreement that was entered into or spoken of between the parties before the execution of this contract is deemed to have been merged into the contract, and I will disallow any testimony tending to vary the terms of that contract, any essential features of the contract, such as the acreage embraced in the deed upon which the timber was growing. * * * Here the testimony is on a most vital subject, which is the number of acres upon which the conveyed timber grew. That, as I conceive it, is such an essential part of the contract — in fact, it is the contract itself — that I will have to exclude any testimony tending to vary that." *Page 241
At the close of the testimony of the plaintiff the defendant made a motion for a directed verdict. This the presiding Judge refused, but of his own motion ordered a nonsuit. From the refusal of the motion for a directed verdict the defendant has appealed, and from the order of nonsuit the plaintiff has appealed.
The property conveyed in the deed from Mrs. McIntyre to Minshew was described as follows:
"All of the pine, poplar and cypress timber, both standing and fallen, 10 inches in diameter and upwards at the stump, 12 inches from the ground at the time of cutting, on that certain tract of land in the county and state aforesaid, containing 500 acres, more or less, bounded north by the estate of James S. Gibson,, lands of Alex Calcutt, Liberty Chapel lot, and lands of A.H. Brown, east by lands of A.H. Brown, F.M. McCorkle, and Jesse Hampton, south by lands of Jesse Hampton and A.N.W. Gregg, and west by run of Mill branch dividing said tract from lands of P. Bartley, O.S. Gregg, and Joseph Holland. For a more particular description see plat made by J.M. Johnson, C.C., October, 1917, which said plat is duly recorded in the clerk of Court's office for Florence County."
The property conveyed in the deed from Minshew to Cameron was described in the precise terms of the former deed, except that the last clause referring to the Johnson plat was omitted.
Although it is stated in the deed from Mrs. McIntyre to Minshew that the Johnson plat was recorded in the clerk's office, as a matter of fact it was not.
The plaintiff contends that, as the Johnson plat, showing the reservation of the 77.7 acres, was referred to in the Minshew deed, and though a separate paper, it was a part of the deed which referred to it; which reference put the defendant either on actual notice, or sufficient notice to impose the obligation of inquiry, and is sufficient to bind him, irrespective of whether the plat was recorded or not. *Page 242
Two questions are involved in this appeal:
(1) Whether or not the unrecorded plat, showing upon its face that the 77.7 acres were reserved from the operation of the deed from Mrs. McIntyre to Minshew, was admissible in evidence. (2) Whether or not parol evidence of the reservation of the 77.7 acres in the contract between Mrs. McIntyre and Minshew which preceded the execution of the deed, and of notice by Minshew to Cameron that they were not included in his deed to Cameron was admissible.
As to the first question: It will be observed that the object of this evidence is not to explain, clarify, or modify the description of the land, the timber upon which was intended to be conveyed. That description is as definite and clear as it could be made. There is no controversy between the parties as to it. But the object is to show by the plat, that the timber upon a part of the land actually included in the description, was not intended to be conveyed by it; a matter entirely distinct from any controversy as to the description and tending directly to impeach the very terms of the deed.
There seems to be no doubt as to the proposition that, when a parcel of land is described with reference to a map or plat, such map or plat becomes, for the purposes of description, a part of the deed, and has the same effect as though incorporated therein. Board v. Taylor,133 Iowa, 453; 108 N.W., 927. Bank v. Stewart, 93 Va., 447;25 S.E., 543. Cox v. Hart, 145 U.S. 376; 12 Sup. Ct., 962;36 L.Ed., 741. Jefferis v. Land Co., 134 U.S. 178;10 Sup. Ct., 518; 33 L.Ed., 872. Neumeister v. Goddard,125 Wis. 82; 103 N.W., 241. Wooten v. Solomon,139 Ga. 433; 77 S.E., 375. Thompson v. Hill, 137 Ga. 308;73 S.E., 640. Hale v. Swift (Ky.), 63 S.W. 288.Lodge v. Lee, 6 Cranch, 237; 3 L.Ed., 210. Edmunds v.Barrow, 112 Va., 71 S.E., 544. Tilley v. Malcolm,149 Ga. 514; 101 S.E., 127. 3 Dev. Real Est., § 1020. Quadev. Pillard, 135 Iowa, 359; 112 N.W., 646; 13 Cyc., 634. *Page 243 Elizabeth City v. Commander, 176 N.C. 26; 96 S.E., 736.Lagorio v. Lewenberg, 226 Mass. 464; 115 N.E., 979.Boston Co. v. Boston, 127 Mass. 374. Downey v. Hood,203 Mass. 4; 89 N.E., 24. Lantz v. Howell, (N.C.),107 S.E., 437.
"We do not doubt, that, by a proper reference of one deed to another, the description of the latter may be considered as incorporated into the former, and both be read as one instrument for the purpose of indentifying the thing intended to be conveyed." Everitt v. Thomas, 23 N.C. 252.
"When a recorded plat is referred to in a deed as related to the matter of description, unless controlled by other facts or circumstances, such plat is to be considered as furnishing a true description of the property." Quade v. Pillard,135 Iowa, 359; 112 N.W., 646.
But it is an entirely different matter to permit a plat to be introduced not to explain some ambiguity or uncertainty in the description, but to limit the express written terms of the description.
"A reference to a plat, however, is for the purpose of description and cannot be resorted to to enlarge or diminish the effect of the words of conveyance in the deed." 18 C.J., 283. Kenyon v. Nichols, 1 R.I. 411.
As to the second question: In Martin v. LaBoon, 116 S.C. 108;107 S.E., 323, this Court, as lately as May, 1921, held:
"Nor can parol evidence be allowed where it `relates to the very important particular, the description of the thing to be conveyed'" — citing Hyde v. Cooper, 13 Rich. Eq., 250. Church v. Farrow, 7 Rich. Eq., 378. Mims v.Chandler, 21 S.C. 480. Kennedy v. Gramling, 33 S.C. 367;11 S.E., 1081; 26 Am. St. Rep., 676.
"It is well settled that, where the description of property in a deed is unambiguous, parol evidence is not admissible and as described; but, if the description is ambiguous — may *Page 244 to show a different subject-matter of conveyance to that be referred to different properties — among other proper evidences of ambiguity, parol evidence is admissible to identify the property intended to be conveyed." Foster v.Carlisle, 159 Ala., 621; 48 South., 665.
The right of the plaintiff to a reformation of the deed which he executed to Minshew and the deed which he executed to Cameron is not involved in this appeal and will not be discussed.
I think that the presiding Judge properly ordered a nonsuit instead of directing a verdict for the defendant, as the latter course would have precluded the possible right of the plaintiff to a reformation of the deeds.
MR. JUSTICE MARION concurs.