#### J. D. PITTS v. JOHN CURTIS et als.

(Filed 25 May, 1910.)

1. Deeds and Conveyances — Timber—Description Indefinite — Voidable — Identification.

A conveyance of “all my pine, oak and poplar timber tbat J. D. P. may want for lumber,” of a certain measure across tbe stump, is an insufficient description to pass tbe title, and will not support an action brought by the grantee for damages for the cutting of such timber, in tbe absence of evidence tending to show tbat at the time of the conveyance tbe grantor and grantee in tbe deed bad marked or otherwise sufficiently identified the timber trees for the cutting of which the damages are sought.

2. Deeds and Conveyances — Timber—Description—Lands.

Growing timber is a part of the realty, and deeds and contracts concerning it are governed by the laws applicable to that kind of property.

Appeal from Oouncill, Jat January Term, 1910, of McDowell.

Civil action to recover damages for tbe cutting and removal of timber claimed by tbe plaintiff. These issues were submitted:

1. Is tbe plaintiff tbe owner of tbe timber trees sued for, as alleged ? Answer: Yes (by court).

2. Wbat damage bas plaintiff sustained by reason of tbe defendants’ cutting and removing said timber trees? Answer: $1,333.

From tbe judgment rendered, tbe defendants appeal.

Pless & Winborne for plaintiff.

J. F. Spainhour, Hudgins, Watson & Johnston and W. T. Morgan for defendants.

Brown, J.

Plaintiff claims title under a deed dated 15 January, 1901, executed by S. C. McNeely to plaintiff, purporting to convey tbe timber alleged to bave been wrongfully cut and removed by defendant Curtis. Tbe descriptive part of tbis conveyance is as follows:

> “I, S. C. McNeely, of tbe first part, do tbis day sell and convey to tbe party of tbe second part all my pine, oak and poplar timber tbat tbe said J. D. Pitts may want for lumber, tbat will measure 16 incbes across stump and upward, at 40 cents per tree; all under tbat size tbat said Pitts may want, at 30 cents per tree.”

Defendant Curtis claims under a deed executed by S.. O. Mc-Neely to bis wife Mary, dated 23 October, 189?, and recorded *61629'August, 1904, fully and particularly describing and conveying the lands (three tracts) upon which the timber in controversy was growing. On — October, 1909, Mary McNeely and her husband conveyed the timber upon these lands to defendant by deed fully describing the lands and timber and referring specifically to the above-named deed to the wife.

Assuming, for the sake of argument, that the deed to plaintiff is not absolutely void for indefiniteness and insufficiency of description, there is no evidence in the record 'which identifies the timber upon which the instrument could operate. It does not undertake to convey all of grantor’s timber, but only such portion of it as the grantee may want for lumber. Even if the instrument is not wholly void, it could only be made effective by evidence that at the time off its execution, and accompanying the act of selling, the partieys entered upon the grantor’s land, selected and plainly marked the trees which the grantee then and there selected.

The precedents sustain the general proposition that a sale of part of a larger number of articles of property, not distinguishable upon the face of the contract, will be operative to pass title if at the time they are separated and understood by the parties. Goff v. Pope, 83 N. C., 123; Harris v. Woodard, 96 N. C., 232; 1 Greenleaf Ev., secs. 287-288.

Professor Greenleaf lays down the general doctrine in these words: “If the language of the instrument is applicable to several persons, to several tracts of land, to several species of goods, parol evidence is admissible of any extrinsic circumstances tending to show what person or persons or what things were intended by the party or to ascertain his meaning in any other respect.” This language, of course, is not intended to apply 'to an indefinite and uncertain description that fits no property, but where its uncertainty arises from the fact that it fits more than one article of property, and there such evidence is admitted to show what is .meant.

In respect to personal property, Chief Justice Pearson states the rule in the “buggy case,” Blakely v. Patrick, 67 N. C., 40, wherein he says: “To vest the title and ownership in any particular buggies, it was necessary to set them apart, so as to make a constructive delivery and effect an executed contract; in the absence of such identification, the agreement, as we -have seen, was executory only.”

The case is cited, approved, and the same principle applied by Chief Justice Smith in Carpenter v. Medford, 99 N. C., 499, to the sale of timber trees, wherein he -says: “It is very clear that the selection and marking of the trees accompanying the *617sale separates and distinguishes tbe subject-matter of tbe contract from all other trees of the same kind upon the premises, so as to transfer the property therein. The trees were designated, after examination, by marks of identification, the only way in which it could be done.”

We have in recent years settled upon and adhered to the theory that growing timber is a part of the realty, and deeds and contracts concerning it are governed by the laws applicable to that kind of property. Hawkins v. Lumber Co., 138 N. C., 160. It may be, as contended by defendants, that upon that principle the deed to plaintiff is absolutely void for uncertainty of description as to the “thing granted”; but it is unnecessary to pass on that contention, as the only evidence that could possibly help out the conveyance is entirely lacking.

' Therefore, his Honor should have sustained the motion. to nonsuit.

Reversed and' dismissed.