
    ROSEMAN v. HOKE.
    (Filed April 23, 1901.)
    NEW TRIAL — Appeal—Record—Defeat—Practice—Supreme Oourt.
    
    Where, upon appeal from a ruling upon a sufficiency of description of land conveyed in a deed, it appears from the case on appeal that the entire description as contained in the deed, and upon the sufficiency of which the ruling was made, is not set out, a new trial will he granted.
    ActioN by R. M. Rosemian, administrator of Thomas Hoke, against Nora Hoke and others, heard by Judge E. W. Timberlahe and a jury, at December Term, 1900, of LiN-colN County Superior Court. Erom a judgment for the defendants, the plaintiff appealed.
    
      A. L. Quiekely, and S. Q Finley, for the plaintiff.
    
      L. B. Wetmore, for the defendants.
   Montgomery, J.

Thisi action atos commenced as a special proceeding in the Supeador Court of Lincoln for the purpose of subjecting the real estate of the plaintiff’s intestate to the payment of his debts. In the ciomplaint the land is described fully, and consists of three distinct tracts. The defendant, Nora Hoke, the widow of the intestate, claimed tire land described in the complaint, and am. issue being joined upon the pleadings, tihe same Aras -transferred to 'the next term of the Superior Court, by the Clerk, for trial. The only question raised on the trial wa$ whether or not 'the description of the land embraced in the deed from the intestate to his Avife, the defendant Nora, AVas sufficient to convey all three tracts. The only description of the land mentioned in the deed from the intestate to the defendant, as appears in the statement of the case on appeal, is as follows: “Lying and being* in Lincoln County, State of North Carolina, in Lin-eolnton Township, adjoining the town of Lincolnton.” The appellant’s counsel here argued orally, and also in his brief, that “the description in the deed (that of the intestate to the defendant) in question might locate the land as well on one side of the town of Lincolnton as on the other; it does not give the number of acres he meant to convey; it does not give the number of tracts (it is admitted by the defendants that he owned more than one) ; it does not give a single boundary, nor refer to any place where the boundary can he ascertained.”

The counsel of the appellee in his brief admits that the description set out in the case on appeal is not sufficient to pass the land, and that it can not he aided by parol proof, hut be insists that, as a fact on the trial, the deed from the intestate to' the defendant was read, and that there were conveyed thea’ein three distinct tráete of land definitely and particularly described, and that they were shown to' be the same tracts of land as tlnose described in the complaint. lie further says that in the appellant’s statement of -the case on appeal, the real description of the land conveyed to the defendant by the intestate was not set out, hut that, a space was left for that purpose, with the words written in the blank space “fill in description here,” and that at ‘the time the case was served on the appellee, the space for the description of the land was still in blank. And he further says that in making* out his counter case bu appeal, he left space for the description, as did the appellant’s counsel, and that he did not “feel called upon to insert, the full description, as the burden was on the other side to show err’or, the law presuming* that the Judge below acted rightly and within the laiw, unless the- contrary be made to appear by those claiming* error to exist.” The Judge adopted the appellee’s statement of the case on appeal.

It seems to r.s upon reading the case on appeal that the deed from the intestate to tire defendant contained a fuller description of the land mentioned therein than the words “lying and being in Lincoln 'County, State of North Carolina, in Linleolnton Township, adjoining the town of Lincoln-ton.” Eor instance, in the dase it is stated that “Here, it is admitted by counsel on both sides that the land claimed by Nora Hoke, the defendant, as the land set out in the complaint, consists of three tracts adjoining each other.” Again, the witness Carson testified that “all three of the tracts described in the complaint were those mentioned in the deed above set out .from Thomlas Hoke to Nora Hoke;” and again, thlat witness said, “I know who now owns the land set out in the deed from Caleb Motz above as the Coble land-(that is, the land that is said in that deed to- adjoin the 6-acre tract). Mr. "Killian now owns tbe Canble land, and as the deed from Thomas Hoke to Nora Iioke calls for Mr. Killian’s land as adjoining it, I know it conveys tbe six acres, or Motz tract, for it would not join the Killian (formerly Gamble) l'and at all, if it did not.” And still, again, it is stated in the case on appeal that “the deed of D. Schemck to Nora Hoke* above mentioned, dated February 10, 1876, was admitted by the plaintiff to cover the two and three-fourths acre tract* mentioned in the deed of Hoke to his wife, Nora, and it was agreed that it was out of the controversy.” The contention, too, of the parties as set out in the case on appeal shows that there was a fuller description in the deed from, Hoke to his wife than appears in the ease on appeal. Those contentions appeal” as follows': “Defendants contend that the deed from Thomlas Hoke to his wife Nora conveyed all three tracts, because it especially mentions three tracts and because the witness Carson identifies all three as being embraced in the deed from Thomas Hoke to Nora Hoke, and as being the same as set out in the complaint.”

“Plaintiffs say that it is impossible to say what land he did convey in said deed, and that the description is too vague and uncertain I o convey any land that belonged to Thomas Hoke; that none of the three tracts were bought from J. C. Jenkins, and none of them could be bounded by Thomas Hoke on the north if all were conveyed.”

It seems necessarily to be the case that his Honor, when lie adopted the appellee’s statement of the case on' appeal, either overlooked the failure to insert, the description or thought that the parties could de it before the transcript should be sent up; and, as we can not, tell what the description was* we are, of course, unable to say' whether or not his Honor’s ruling was correct when he held that the description was sufficient in law 'and in the light of the parol evidence of the defendant in aid thereof, to pass all three of the tracts set out in tihie complaint, and instructed, tbe jury to answer in tih© negative tibe issue, “Did Tiranas IToke die seized and possessed of the three tracts of land mentioned and described in. the complaint ?”

New trial.  