#### D. A. MADRY v. H. H. MOORE.

(Filed 26 February, 1913.)

Í. Motions — Nonsuit—Evidence, How Considered.

Upon a motion to nonsuit, tbe evidence must be viewed in the light most favorable for the plaintiff, approving Brittain v. Westhall, 135 N. C., 492.

2. Same — Ejectment—Defendant’s Title.

Where plaintiff and defendant both claim title to lands, by deeds from a common source, and it appears from- the defendant’s deeds in evidence that questions were raised for the jury as to this title to the loans in quo, it is error for the court to grant a motion of nonsuit upon the evidence.

3. Same — Questions for Jury.

Both parties to this action to recover lands claiming under a common source of title, it is Held that the variance in the deeds in defendant’s chain of title as to description, number of acres, etc., raised a question fpr the determination of the jury as to his title.

4. Deeds and Conveyances — Ejectment — Descriptions — Definite Tract — “Formerly Owned” — Words and Phrases.

Where in an action for the possession of lands, both parties claiming from a common source of title, the first deeds in defendant’s chain recite the lands as the land “formerly owned by” A., but in the deed made directly to him it is described as “the land known as the A. tract,” it is Held, there is a differ*296ence in the designation of the lands, for the lands, as to a whole or part, may have been owned by A., while describing the land as the “A” tract at least raises a question for the determination of the jury as to whether a separate and distinct tract by that name was conveyed, it being same evidence of location.

Appeal from Webb, J., at the August Term, 1912, of Halifax.

The facts are sufficiently stated in the opinion of the Court by Mr. Justice Walker.

G. M. T. Fountain & Son for plaintiff.

E. L. Travis and A. P. Kitchin for defendant.

Walker, J.

This action was brought to recover the possession of 10 acres of land lying on the south side of a certain black gum and ditch mentioned in some of the deeds. Both parties claimed title under James Rogers and wife, Emerliza Rogers. James Rogers purchased the entire tract of 60 acres by deed from M. D.' Allsbrook, dated 13 December, 1892, in which the land is described as follows: “That tract of land formerly owned by Bennett Allsbrook, adjoining the lands of Kelley Edwards, Dick Joyner, Dr. W. T. Savage, James Rogers, and the Gray land, containing about 60 acres.” James Rogers, on 18 February, 1901, conveyed by deed to Jesse-Manning a tract of land by the following description: “That tract of land formerly owned by M. D. Allsbrook, adjoining the lands of Kel. Edwards, Dick Joyner, Miniza White, and others, commencing at a black gum and ditch, containing 50 acres, more or less.” Plaintiff contends that this deed conveys only a part of the original Bennett Allsbrook tract of land, while defendant insists that it ‘conveys all of it, 50 acres of it and not the 10 acres north of the ditch. Jesse Manning, on 26 January, 1905, conveyed to A. P. Kitchin a tract of land with the following description: “That tract of land formerly owned by M. D. Allsbrook, conveyed to said Manning by James Rogers and wife by deed, in Book 149, page 593, in the register’s office of said county, containing 50 acres, more or less, bounded on the north by Mrs. Emerliza Rogers, on the west by the land of the estate of Ben Lewis, on the south by the land of Olive White, and on *297tbe east by M. D. Joyner and A. P. Kitchin.” Tbe same contention is made in regard to this tract as in tbe case of tbe one just mentioned. A. P. Kitchin conveyed to H. H. Moore, tbe defendant, a tract of land by tbe following description: “That tract of land known as tbe M. D. Allsbroolt tract, containing 60 acres, more or less, which was conveyed to said A. P. Kitchin by Jesse Manning and wife, adjoining tbe first mentioned tract on tbe east, tbe lands of Allie "White on tbe south, along a branch; tbe Gray land on the west, and tbe home place of tbe late James Rogers on tbe north.” Said deed also contains tbe following warranty: “And tbe said parties of tbe first part covenant to and with tbe said Moore and bis heirs and assigns that they are seized of said premises in fee, and that they have tbe right to convey tbe same, and that they will warrant and defend tbe title'to same against all lawful claims, except 10 acres on tbe north side second tract mentioned above, which is in dispute, but which is tbe property of tbe said A. P. Kitchin, but is claimed by one D. A. Madry.” This deraigns tbe defendant’s paper title. Tbe plaintiff claims title under deeds from Emerliza Rogers and Dolly Cobb, containing tbe same description, and conveying tbe 10 acres which are in dispute. Tbe title is out of the State and both parties claim from tbe same source. Tbe question of difference between them is whether tbe defendant’s deeds cover tbe 10-acre tract, and if they do, tbe plaintiff alleges, and attempted to show, that it was not intended to be embraced by tbe descriptive words of tbe deeds, but was included therein by mutual mistake of tbe parties and tbe inadvertence of tbe draftsman. It will not be necessary to consider tbe equity thus set up, as we are of tbe opinion that there was evidence that tbe defendant’s deeds did not cover tbe locus in quo, and tbe judge therefore erred in dismissing tbe action, as upon a nonsuit, for tbe total lack of proof to sustain tbe plaintiff’s first contention. Tbe jury may find at tbe next trial that defendant’s deeds do not" embrace tbe 10 acres, and for this reason tbe deed may not require correction in tbe particular alleged. But if it should become necessary to pass upon tbe plaintiff’s alleged equity, we think that evi-*298deuce was rejected which, with that admitted, was sufficient for the consideration of the jury upon! the question of mistake, though we do not intimate any opinion upon the other question raised by the defendant as to plaintiff’s right to assert that equity, it being alleged that he is a mere volunteer and that the consideration of the deed to him by Emerliza Rogers was cham-pertous.

Passing to the other question, it must now be taken as settled that the testimony .upon a nonsuit must be viewed most favorably for the plaintiff. Brittian v. Westhall, 135 N. C., 492; Deppe v. R. R., 152 N. C., 79. We stated the rule thus in Brittain v. Westhall, supra: “It is well settled that, on a motion to nonsuit or to dismiss under the statute, which is like a demurrer to evidence, the court is not permitted to pass upon the weight of the evidence, but the evidence must be accepted as true and construed in the light most favorable to the plaintiff, and every fact which it tends to prove must be taken as established, as the jury, if the case had been submitted to them, might have found those facts upon the testimony. Purnell v. R. R., 122 N. C., 832; Hopkins v. R. R., 131 N. C., 463,” and as thus stated, the rule was expressly approved in Morton v. Lumber Co., 152 N. C., 54, and Deppe v. R. R., ibid., 79. With this rule kept in view, we proceed to consider the testimony with reference to the correctness of the judgment of nonsuit.

Without attempting to analyze the evidence minutely and to consider its strength and effect, which might prejudice one or the other of the parties at the next trial, we content ourselves with stating generally that there was evidence upon the face of the several deeds, the difference in the number of acres conveyed, the change in the phraseology, from that employed to describe the land in the deeds from James Rogers to Jesse Manning, and from the latter to A. P. Kitchin, to that of the deed from the latter to H. H. Moore. In the two -former deeds the land is described as “the tract formerly owned by Bennett Alls-brook” or “the tract formerly owned by M. D. Allsbrook,” while in the latter deed the description is “the land known as the M. D. Allsbrook tract.” A part of a tract of land might well be described as the land formerly owned by Bennett Alls-*299brook or M. D. Allsbrook, wben be owned tbe entire tract, for be is as much tbe owner of a part as tbe whole; but wben tbe tract is described as tbe one known as tbe M. D. Allsbrook tract, it means a separate and distinct tract by tbat name, and not a part of a larger tract wbicb bad tbat designation, or at least tbe jury would be. well warranted in considering tbe difference in description as some evidence of location. Again, tbe number of acres in tbe last of tbe deeds is increased by 10 over tbe acreage of tbe tract described in tbe earlier deeds. There was room here for tbe jury to inquire wby, if tbe former description included tbe 10 acres, it was not sufficient to follow it even literally in tbe last deed. Tbe deed from M. D. Allsbrook to James Rogers conveyed a tract “containing about 60 acres,” tbe deeds from James Rogers to Jesse Manning and from Manning to A. P. Kitchin convey by tbe same description a tract “containing 50 acres, more or less,” or 10 acres less tban tbe first deed, and tbe deed of Kitcbin to defendant a tract “containing 6Q acres, more or less,” or 10 acres more tban tbe other two deeds. There are other considerations that might be noted, wbicb arise uimn a careful reading of all tbe deeds under wbicb tbe defendants claim. We also think that there was oral testimony bearing upon tbe question of location. There was evidence that after the deeds were executed to Manning and Kitchin, they took possession only of the land on tbe south side of tbe ditch, and Jesse Rogers, as long as be lived, and Mrs. Rogers, bis widow, after bis death, continued to occupy tbe land on tbe north side of the ditch, tbat is, tbe 10 acres in dispute. It also appeared, without objection, tbat Mrs. Rogers bad called upon one of tbe parties to inquire wby be claimed her land, and while be asserted bis title to it, she was offered $50 for her claim, or a life estate in tbe land if she would pay for a part of tbe ditching. She also testified tbat tbe 10 acres are a part of the M. D. Allsbrook tract of land, and tbat she did not comply with tbe agreement to ditch tbe land, as she found wben she read tbe paper tbat it required her to do all of tbe ditching for tbe entire farm, instead only of tbat on her side of tbe ditch, and it was not what she agreed to do, and cost too much for her to pay. It must not be understood tbat we are *300intimating any opinion as to the force or weight of the evidence, but consider only the question whether there is any evidence, leaving the weight of it entirely to the jury. Upon a review of •all the testimony, our conclusion is that the case should have been submitted to the jury, with proper instructions from the court upon' the question of location, that is, to determine whether or not the ditch is the dividing line.

New’trial.