Opinion
(June Term, 1861.)
1. Where an insufficient description was given in a bond to make title, parol evidence cannot be resorted to to show what the parties meant, or to identify the particular parcel of land which was the subject matter of the written contract.
2. Where an obligee in a bond to make title, files a bill for a specific performance of the contract, and claims to have the land conveyed according to certain boundaries which he alleges were meant by the contract, and the defendant in his answer denies that such boundaries were meant, and sets out others which he alleges were intended, the plaintiff, not having in the pleadings averred his unwillingness to accept a deed according to the lines as the defendant says he understood they were to be run, and not having offered to release him against any further claim, is not entitled to a decree according to the allegations of the defendant.
CAUSE removed from the Court of Equity of ROBESON.
The bill was filed by the plaintiff to enforce a specific performance of a contract in writing for the conveyance of a certain parcel of land according to particular lines which are set forth in the bill, and plaintiff avers were the lines intended by the agreement. The land in question was part of a contract of some four thousand acres which was owned by the plaintiff, and the contract is for the conveyance of a part thereof, supposed to be about fourteen hundred acres, "the location of which will more fully appear by reference to a certain plat now in the hands of Berry Godwin, made by Elias Wishart," which plat is made a (230) part of the plaintiff's bill. The plat in question exhibits three lines drawn across the body of the land, two of which the plaintiff alleges were drawn by Eli Wishart, and the one which is east of the other he contends was meant by the parties, and he prays that the defendant may be compelled to convey according to that boundary.
The defendant in his answer says that when the plaintiff and himself entered into the contract set out (which he does not deny) they drew a third line on the plat, formerly made by Wishart, which is still more easterly, and that that was the line, according to which the land was to be conveyed, and according to which he says he had always been ready and willing to convey, but had not done so because of the unreasonable and unjust claim set up by the plaintiff, to have the land conveyed according to the middle line.
There were proofs taken on both sides as to the acts and declarations of the parties, in respect to the line intended, but being pronounced by the Court inadmissible to control the meaning of the bond, they are not deemed proper to be reported.
The plaintiff contended on the argument that he was at least entitled to have a conveyance according to the allegations of the defendant, and proposed ore tenus to take a decree on these terms, if the Court were of opinion that he had not established his enquiry according to his own allegations and proofs.
Leitch for the plaintiff.
Person for the defendant.
A specific performance of the contract can not be decreed, because it is not practicable, by reason of the vague and indefinite description of the parcel of land concerning which the contract was made. It is settled that where an insufficient description is given, parol evidence is not admissible to show what the parties meant, or to identify the particular parcel of land which was the subject-matter (231) of the written contract. This must be done by the terms of the contract, and an insufficient description cannot be added to or helped out by parol proof of what was said before, at the time of after the written contract was executed. Murdock v. Anderson, 57 N.C. 77; Allen v. Chambers, 39 N.C. 125.
Whether the plaintiff is entitled to a specific performance, according to the contract, as the defendant in his answer says the line ought to run, is a question not presented by the pleadings. In order to raise it, the plaintiff must aver that he is willing and has offered to accept a deed for the land according to the line, as the defendant says he understood it was to be run, and that he, the plaintiff, has offered to perform his part of the contract as it was understood to be by the defendant, and to release and acquit him of all further claim. The bill is dismissed with costs, but without prejudice.
PER CURIAM. Bill dismissed.
Cited: Breaid v. Munger, 88 N.C. 299.