Crews v. Crews

210 N.C. 217

Opinion

Connor, J.

Plaintiff’s exceptions to certain findings of fact made by the judge at the hearing of this proceeding, and set out in the judgment, cannot be sustained. There was competent evidence at the hearing, sufficient in probative force to sustain each and all the findings of fact. It is well settled that where, by agreement of the parties to a civil action or to a special proceeding, a trial by .jury has been expressly waived, and the judge has beard the evidence and found the facts in controversy, and there was competent evidence sufficient in probative force to support bis findings, they are conclusive and not reviewable on an appeal to this Court from a judgment in accordance with such findings. In the instant case, all the findings of fact are supported by competent evidence, which was properly beard and considered by the judge.

Nor can plaintiff’s exceptions to the judgment, which is in accord with the findings of fact and conclusions of law made by the judge, be sustained. It is a well settled principle of law that when the specific description by metes and bounds contained in a deed does not include land which it was the intention of the parties to the deed to convey, but such land is included in and is covered by a general description, as in the instant case, the general and not the specific description will control. Quelch v. Futch, 172 N. C., 316, 90 S. E., 259. In the opinion in that case it is said: “The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that would aid the description.”

There is no error in the judgment decreeing a reformation of the deed of trust and of the deed under which the defendant A. A. Crews claims in the instant case. In Crawford v. Willoughby, 192 N. C., 269, 134 S. E., 494, it is said: “The principle that a court of equity, or a court exercising equitable jurisdiction, will decree the reformation of a deed or written instrument, from which a stipulation of the parties, with respect to some material matter, has been omitted by the mistake or inadvertence of the draftsman, is well settled and frequently applied. Strickland v. Shearon, 191 N. C., 560. The equity lor the reformation of a deed or written instrument extends to the inadvertence or mistake of the draftsman who writes the deed or instrument. If be fails to express the terms as agreed upon by the parties, the deed or instrument will be so corrected as to be brought into harmony with the true intention of the parties. Sills v. Ford, 171 N. C., 733.”

The plaintiff in this case joined with her husband, W. W. Crews, in the execution of the deed of trust under which the defendant A. A. Crews claims. She was a party to the deed of trust, and is not in a position to assert that she is an innocent purchaser under the deed subsequently executed to her by her husband. The principle stated in the opinion in Archer v. McClure, 166 N. C., 140, 81 S. E., 1081, has no application in the instant case. The judgment is

Affirmed.