¶1 (after stating the case). 1. The essence of the indictment is in the imputed intent to deceive and defraud, and thereby to obtain the goods of the defrauded owner. Unless this intent exists, and is found, the offence is not committed, and can only be inferred from acts and declarations, and especially from such as occurred at the time of the committing of the alleged fraud. Whatever *736 tends to show that the person charged acted under a misapprehension tends to repel the imputation, and becomes competent upon this inquiry. Much latitude must therefore be allowed in the reception of evidence bearing upon the issue of an intent to deceive and defraud, and we are not disposed to deny the competency of the rejected evidence, so far as it bears upon this point, and is not intended to vary or modify the terms of the written instrument.
¶2 2. The defendant has had the benefit of what occurred subsequent to the indictment, and he, at least, cannot complain of the ruling.
¶3 3. The Judge correctly held that, by itself and unaided by extrinsic proofs, the crops mentioned in the first mortgage did not pass, and this is in accordance with the rulings in this Court. Atkinson v. Graves, 91 N. C., 99; Rountree v. Vinson, 94 N. C., 104; Woodlief v. Harris, 95 N. C., 211.
¶4 These cases establish the proposition that, to make effectual a mortgage of an unplanted crop, it must not only be raised by the mortgagor, hut upon land sufficiently described in the deed, or by reference therein for identification, and, in Wooten v. Hill, ante, confining it to crops grown on land next thereafter to be cultivated, and not extending to future successive years. The admission of proof of the understanding of the parties as to the land to be cultivated seems to have been allowed in consequence of a remark of Mr. Justice Ashe in Rountree v. Vinson, ante, in which he says, “the defect might possibly have been cured by parol evidence, offered to apply the description to the subject matter intended to be conveyed.” This intimation follows the declaration that “the description of the cotton, corn and fodder mentioned in the deed of mortgage was too vague and uncertain to pass any title to the property to the mortgagee.” Page 108, Wooten v. Hill.
¶5 Now, while it is true that a deed conveying one of several articles of personal property belonging to the owner, perhaps *737 not capable of being distinguished by words of description from others of the same kind, and the defect not patent until an attempt to fit the description to the thing intended, may be aided by extrinsic evidence.
¶6 Thus in Blakely v. Patrick, 67 N. C., 40, where the mortgage was of ten new buggies, the mortgagor having more than that number on hand, and there was no delivery, PbarsoN, C. J., said: “To vest the title or ownership in any particular buggy, it was necessary to set them apart, so as to make a constructive delivery and effect an executed contract;” and this, of course, could only be shown by parol evidence given to the jury.
¶7 So in Goff v. Pope, 83 N. C., 123, it is said: “A horse, a buggy or a cow is sold: how can the article be separated from many others of the same class except by the aid of parol testimony? The generality of the description, in many cases unavoidable, is latent ambiguity, discoverable when the object is sought, and removable by outside evidence of intent.” And again, so late as February Term of the present year, the same principle is reiterated in Spivey v. Grant, 96 N. C., 214, and the mode of identifying pointed out.
¶8 But these decisions do not apply to the disposal of an un-planted crop — a thing not in esse — and when the description upon the face of the instrument is vague and incurable. Such property can only pass when of future growth, if the land, of which it is to be the fruit, is designated and this is the only means of identification.
¶9 The case of Rountree v. Vinson was not one of conflicting claims of different mortgagees, but it was a controversy between the administrator of the mortgagor and the mortgagees, and has some of the features of an unperformed contract, to be enforced. ' But we are clearly of opinion that the deed of March 2, 1886, to R. M. White & Co. cannot prevail against that of April 21 to Scliiff & Co., and that no parol proof was admissible to make it valid and effectual. As then the *738 property passed under the last deed, and SchifC & Co. stand in the sanie relation to it as if the prior deed had not been made, there was, in legal consequences, no antecedent mortgage, no false representation as to the title and present capacity in the defendant to make the conveyance, the charge is not sustained.
¶10 For the error assigned the verdict must be set aside and a venire de novo awarded.
¶11 Error.