CHERRY et al.
v.
ROANOKE TOBACCO WAREHOUSE CO.
No. 95.
Supreme Court of North Carolina.
March 18, 1953.*127 Clarence W. Griffin and Peel & Peel, Williamston, for plaintiffs appellees.
R. L. Coburn, Williamston, for defendant appellant.
WIN BORNE, Justice.
In an action for damages for breach of a covenant of seizin, where the defendant denies the breach, and there are no admissions to the contrary, the burden of proof to show the breach is upon the plaintiff under our code system of pleading,so this Court held in Eames v. Armstrong, 142 N.C. 506, 55 S.E. 405. Under this rule, plaintiffs in the case in hand have the burden of proof to show a breach of the covenant of seizin in the deed from defendant to them, that is, that there is a partial failure of title to the land described in this deed.
In this connection it seems that the controversy involves these questions: (1) Does the Atlantic Coast Line Railroad Company own a right of way on and along Railroad Street in the town of Williamston?; (2) If so, what is the width of it, and where is it located with reference to the lines of Railroad Street?
As to the first question, the parties stipulate that the deed from the town of Williamston to the Atlantic Coast Line Railroad Company covers the right of way referred to in the deed from defendant to plaintiffs, and represents the railroad's title to such right of way.
By what authority, therefore, did the town of Williamston act on October 7, 1912 in making the deed to the railroad company? Did the town own the land in fee simple? If so, how did it acquire title to it? This may be shown by various methods which are specifically set forth in Mobley v. Griffin, 104 N.C. 112, 10 S.E. 142. See also Locklear v. Oxendine, 233 N.C. 710, 65 S.E.2d 673.
If the town of Williamston did not own the land in fee simple, did the town have legislative authority to make the kind of deed it did make? If not, did the town have such authority to grant to the railroad company a right of way along Railroad Street on which to lay a track, and operate trains? In this connection, see State v. Atlantic & N. C. R. Co., 141 N.C. 736, 53 *128 S.E. 290; Butler v. F. R. Tobacco Co., 152 N.C. 416, 68 S.E. 12; Staton v. Atlantic Coast Line R. Co., 147 N.C. 428, 61 S.E. 455, 17 L.R.A.,N.S., 949.
If the town had such authority, is the railroad track so laid that a right of way of the width specified is in fact within the boundaries of Railroad Street? This question requires the location of the lines of the street, as they existed at the date of the deed, and the location of the railroad track as originally laid with reference to the lines of the street. In other words, plaintiffs, in the case in hand, must offer not only the deed upon which it relies, but they must by proof fit the description in the deed to the land it covers,in accordance with appropriate rules of law and evidence. The deed, without the proof, is not sufficient. Hence, there is error in the charge of the court to the jury "that the legal effect of that deed which was introduced in evidence is to give to the Atlantic Coast Line Railroad a right of way which extends 15 feet on each side of the center line of the railway track". Defendant excepts to this instruction, and the exception is well taken.
Moreover, it is not amiss to call attention to the description as set out in the deed from defendant to plaintiffs. The course and distance called for in the second call, nothing else appearing, seems to lead across the railroad track, and to relate to land in, and north of it, rather than south of it, as the map, identified by the parties, indicates.
Decisions of this Court generally recognize the principle that a deed conveying land within the meaning of the statute of frauds must contain a description of the land, the subject matter of the deed, either certain in itself or capable of being reduced to certainty by reference to something extrinsic to which the deed refers. The office of description is to furnish, and it suffices when it does furnish means of identifying the land intended to be conveyed. Where the language used is patently ambiguous, parol evidence is not admissible to aid the description. But when the terms used in the deed leave it uncertain what property is intended to be embraced in it, parol evidence is admissible to fit the description to the land. Such evidence cannot, however, be used to enlarge the scope of the descriptive words. The deed itself must point to the source from which evidence aliunde to make the description complete is to be sought. See North Carolina Self-Help Corp. v. Brinkley, 215 N.C. 615, 2 S.E.2d 889, where the authorities are cited. See also Searcy v. Logan, 226 N.C. 562, 39 S.E.2d 593. Plemmons v. Cutshall, 234 N.C. 506, 67 S.E.2d 501; Linder v. Horne, 237 N.C. 129, 74 S.E.2d 227.
Moreover, in Byrd v. Carolina Spruce Co., 170 N.C. 429, 87 S.E. 241, it is held, as epitomized in headnote 1, "Where there is a call in the description to a given boundary in a conveyance of land, which is at variance with the course specified therein, the natural object will control the course, it being the evident intent of the parties that the line should be thus established, and not that a mere word, in which a mistake is more likely to occur, should control."
In the light of these principles, the course and distance of the second call may be controlled by proof of the location of "the driveway of the Roanoke-Dixie Warehouse", Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603; Id., on rehearing, 233 N.C. 617, 65 S.E.2d 144, for which purpose parol evidence is competent. The stipulation of parties may have been intended to meet this situation.
In view of the ruling of the court in respect to the deed from the Town of Williamston to Atlantic Coast Line Railroad Company, as above set forth, motion for judgment as of nonsuit will not be sustained. For if the court had ruled adversely to plaintiffs they might have offered evidence sufficient to withstand the motion.
For error pointed out, there must be a
New trial.