Moore v. . Fowle , 139 N.C. 50 ( 1905 )

It is contended by the defendants that the evidence offered by the plaintiffs did not show a bona fide claim based upon evidence sufficient to constitute a prima facie title in accordance with the terms of the statute (Laws 1901, ch. 666), and therefore the injunction should have been dissolved. We have examined all the affidavits and deeds set out in the record and have concluded that his Honor properly continued the injunction.

The act of 1901 is not a limitation upon the power of the courts to continue injunctions until the controversy can be tried by court and jury. Section 1 specifies certain conditions when the injunction shall not be dissolved and when the court shall not permit the timber to be cut except by consent. Section 2 specifies a contingency when the court may permit one of the parties to cut the timber, and prescribes the conditions necessary to be complied with. This act was evidently intended to preserve the timber upon lands in litigation, pending the suit. Section 2 was intended to regulate the practice of giving bonds, which had obtained sinceLumber Co. v. Wallace, 93 N.C. 22, and similar cases.

The rapidly increasing value of timber trees doubtless prompted the Legislature of 1885 to enact chapter 401, but the efficacy of this act was diminished by the general practice of permitting the defendant to give bond and to cut the timber pendente lite, or otherwise to appoint a receiver and permit the rental value or stumpage to be paid to him. The Legislature of 1901 has thrown greater safeguards around the rights of such litigants, and now, when the plaintiff satisfies the judge that his claim is bona fide and that he can show an apparent title to the timber, the judge should not dissolve the injunction, but continue it until the title can be finally determined.

The plaintiffs offer in evidence a deed from Gustavus Dupey (53) to Samuel Moore, purporting to convey "a certain piece or parcel of land lying and being on the south side of Pamlico River and the south side of Blount's Creek, containing 75 acres, be the same more or less; it being the same land that James Peele conveyed to Hiram Edgerton by deed, which deed will more fully show courses and distances, reference being had to the said deed, and deeded by Hiram Edgerton to William E. Shaw." It is contended that this deed is void for uncertainty of description. The plaintiffs, in addition to the general principles of law, rely on the act of 1891, ch. 465, in support of this deed. It is unnecessary to consider the value of such act as an aid to the plaintiff's case. It is not probable that the General Assembly intended to repeal the section of the statute of frauds requiring conveyances of land to be in writing. A deed which fails to describe any land is as void now as it was before the passage of the act of 1891.

It is plain that the deed is not void, for it calls for the same land conveyed by James Peele to Hiram Edgerton, and by Edgerton to Wm. E. Shaw. These latter deeds can be offered in evidence on the trial and the land probably be located. Id certum est, etc. The fact that they were not offered at the hearing before the judge does not compel a dissolution of the injunction. On such hearings the title is not required to be proved with that strictness and certainty of proof as upon the trial. The plaintiffs offer affidavits tending to prove that the land is well known by name, to wit, as the Peele or Sam Moore land, and that the boundaries are known to witnesses and can be easily located. Description by name, where lands have a known name, is sufficient, and a tract of land may then be located by its name. Scull v. Pruden, 92 N.C. 168, citing many cases.

As we understand the case the defendants do not claim this James Peele or Sam Moore land, and they express a desire to keep off of it. It is therefore proper for the plaintiffs to point out to the (54) defendant immediately the boundaries of the James Peele land as claimed by them, so the defendants' agents may not unwittingly trespass, pending the trial of the title. The order of the judge below is

Affirmed.

Cited: Davis v. Fiber Co., 150 N.C. 88; Lodge v. Ijames, 156 N.C. 160;Riley v. Carter, 165 N.C. 337; Lumber Co. v. Pearce, 166 N.C. 59;Seip v. Wright, 173 N.C. 16; Goodman v. Robbins, 180 N.C. 240.