{
  "id": 11271912,
  "name": "ROPER LUMBER COMPANY v. L. F. SWAIN",
  "name_abbreviation": "Roper Lumber Co. v. Swain",
  "decision_date": "1913-03-19",
  "docket_number": "",
  "first_page": "566",
  "last_page": "569",
  "citations": [
    {
      "type": "official",
      "cite": "161 N.C. 566"
    }
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  "court": {
    "name_abbreviation": "N.C.",
    "id": 9292,
    "name": "Supreme Court of North Carolina"
  },
  "jurisdiction": {
    "id": 5,
    "name_long": "North Carolina",
    "name": "N.C."
  },
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    {
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    {
      "cite": "141 N. C., 507",
      "category": "reporters:state",
      "reporter": "N.C.",
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    {
      "cite": "108 N. C., 327",
      "category": "reporters:state",
      "reporter": "N.C.",
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      "case_paths": [
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    {
      "cite": "95 N. C., 131",
      "category": "reporters:state",
      "reporter": "N.C.",
      "case_ids": [
        11273263
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      "case_paths": [
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  "analysis": {
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  "last_updated": "2023-07-14T14:55:28.078438+00:00",
  "provenance": {
    "date_added": "2019-08-29",
    "source": "Harvard",
    "batch": "2018"
  },
  "casebody": {
    "judges": [],
    "parties": [
      "ROPER LUMBER COMPANY v. L. F. SWAIN."
    ],
    "opinions": [
      {
        "text": "Hoke, J.\nThere was evidence on part of plaintiff tending to establish title in one Christopher Stephens; that the same had passed by mesne conveyances to plaintiff company, and that defendant had committed trespass upon the land therein conveyed. One of the deeds in the line of plaintiff\u2019s title was that of George IT. Simmons, executor of Christopher Stephens, and it was insisted for defendant that the executor had no power to make a conveyance of testator\u2019s realty.\nThe general rule undoubtedly is that where land is devised to be sold for division among the heirs or devisees, without more, the executor is without power to convey (Council v. Averett, 95 N. C., 131), but the rule yields when a contrary intention appears from the terms of the will, and we are of opinion that the modification of the rule should prevail in the present case. The will disposes of a large real and personal estate, including the land in controversy, and directs very generally a sale of the same for division among the heirs, legatees, etc., chiefly among his four children, and concludes with the provision appointing the executors: \u201cTo all intents and purposes to execute this my last will and testament according to the true intent and meaning of the same and every part and clause thereof.\u201d A clause of this character was held to confer on an executor the power to sell realty in Saunders v. Saunders, 108 N. C., 327, and the authority is decisive of the question presented by this exception. Again, it was objected that two of the mesne conveyances in the line of plaintiff\u2019s title were defective in that they did not contain written words sufficiently definite to permit the introduction of parol testimony to fit the description to the land conveyed. These deeds, one from W. B. Blades and others to the Blades Lumber Company and from that company to plaintiff, purported to convey large tracts of land lying in the counties of Craven, Jones, Onslow, Pamlico, and Carteret, State of North Carolina, and referring to the various deeds for description in terms as follows: \u201cE. B. Hackbum, Craven County, Book 34, p. 390,\u201d giving each deed by name, book and page.\n\u201cJones County: Brinkley, Charles and wife, Book 40, p. 535,\u201d etc., giving each deed by name.\n\u201cOnslow County: Andrews and Hall, Book 67, p. 237. Simmons, G. H., et al., Book 67, p. 461. Simmons, G. H., Book 67, p. 271,\u201d etc., giving each deed by name of parties, book, page, etc., and like reference in other counties. These entries must refer to the registry books of the respective counties, the only place where deeds for land are or are required to be registered. Without the aid of parol evidence, they carry the mind unmistakably to these books, and, this being true, the deeds referred to for purposes of description become a part of the conveyances just as much as if incorporated in them. Gudger v. White, 141 N. C., 507; Everett v. Thomas, 23 N. C., 252. It was further urged that defendant was protected by reason of adverse occupation for the required time, under his own deeds and grant and color, and that, being upon the lappage, the force and effect of such occupation would be carried to the .outer boundaries of the deed, covering the locus in quo. The position is sound in proper instances, but, as applied to the facts of this case, it does not aid the defendant. The description in his own grant and deed recognizes and calls for the \u201cWilliams patent\u201d and the \u201cJohn Wilkins patent,\u201d two of the muniments of plaintiff\u2019s title, and exclude the effect of his deeds as color beyond these two lines. Defendant bad no color of title, therefore, beyond the line of these patents, and, without this, his occupation did not suffice to mature his title. On perusal of the record, we find no error, and the judgment in plaintiff\u2019s favor must be affirmed.\nNo error.",
        "type": "majority",
        "author": "Hoke, J."
      }
    ],
    "attorneys": [
      "Frank Thompson and L. I. Moore for plaintiff.",
      "Robert Ruark and J. B. Schulken for defendant."
    ],
    "corrections": "",
    "head_matter": "ROPER LUMBER COMPANY v. L. F. SWAIN.\n(Filed 19 March, 1913.)\n1. Wills \u2014 Lands Sold for Distribution \u2014 Executors and Administrators \u2014 Power of Sale.\nTlae general rule that where land is devised to be sold for division among the heirs or devisees, without more, the executor is without power to convey, does not obtain when a contrary intention appears from the terms of the will.\n2. Same \u2014 Interpretation of Wills \u2014 Intent.\nWhere a will disposes of a large real and personal estate, and directs very generally a sale for division among the heirs and legatees, and concludes with the provision that the executors shall \u201cto all intents and purposes execute this my last will and testament according to the true intent and meaning of the same, and every part and clause thereof,\u201d the intention of the instrument is to confer on the executors the power to sell and conv.ey the lands for the division specified therein.\n3. Deeds and Conveyances \u2014 References for Description \u2014 Presumption \u2014 Register of Deeds \u2014 Parol Evidence of Location.\nWhere a deed purporting to convey large tracts of land refers to various former deeds in the chain of title for description, giving the county, number of book and the page, the entries necessarily refer to the books in the office of the registers of deeds of the respective counties, which become a part of the description of the conveyance in question, and when these descriptions are not too vague or uncertain, parol evidence is competent to identify the land thereunder.\n4. Deeds and Conveyances \u2014 Lappage on Lands \u2014 Possession\u2014Outer Boundaries \u2014 Color\u2014Exclusion in Boundaries.\nWhere there is a lappage upon lands according to the descrip- \u2022 t\u00ed on o,f plaintiff\u2019s and defendant\u2019s deeds, including the locus in quo, the defendant cannot establish his title thereto by seven years adverse possession under color, claiming to his outer boundaries, When muniments of title in the line claimed by the plaintiff are recognized in the deed under which defendant claims, and excludes the lands in controversy.\nAppeal from Carter, J., at July Term, 1912, of \u00dcNSlow.\nCivil action, trespass q. c. fr., involving also an issue as to title.\nThe jury rendered tbe following verdict:\nFirst. Did the defendant trespass upon tbe lands of the plaintiff, as alleged in the complaint ? Answer : Yes.\nSecond. What damage, if any, is the plaintiff entitled to recover of the defendant? Answer: $50.\nThird. Is defendant\u2019s lessor the owner of the lands described in the answer, or any part thereof? Answer: Yes.\nFourth. If so, what are the true boundaries of said lands? Answer: Beginning at A, running to B; thence 10 poles and 21 L to the nearest point in the edge of the pocosin, thence with the edge of the pocosin to the letter R; thence to S; thence to I; thence to J; thence to K; thence to L; thence to M, and thence back to the beginning, as indicated on the map by the letter A. The above description shown on map.\nJudgment for plaintiff, and defendant excepted and appealed.\nFrank Thompson and L. I. Moore for plaintiff.\nRobert Ruark and J. B. Schulken for defendant."
  },
  "file_name": "0566-01",
  "first_page_order": 610,
  "last_page_order": 613
}