Dill-Cramer-Truitt Corp. v. Jacksonville Lumber Co.

112 S.E. 740, 183 N.C. 660, 1922 N.C. LEXIS 332

• Court: Supreme Court of North Carolina
• Decided: June 2, 1922
• Status: Published

Opinion

Walker, J.

This case is not like many of its kind to be found in the books,.where the trials were by jury. The cause was referred, by consent of the parties, to a referee, who' definitely found the facts and stated his •conclusions of law therefrom, his decision being for the defendants, which was adopted and confirmed by the judge upon exceptions thereto, .and judgment given for the defendants.

If we are to be governed at all in our decision of this case by the referee’s findings of fact, which are binding upon us, there being evidence, as there is here, to support them (Bailey v. Hopkins, 152 N. C., 748), it is manifest that the sheriff’s deed was intended to convey to the purchaser at the execution sale all of the “Town Point Plantation,” it having distinct and clearly defined boundaries, and being a tract of land which was well known to the people who lived in the section where it was situated,, and it is further evident that the other calls in the deed for .adjoiners, if so it may be termed, was an erroneous one, and that the deed will not have any effect, unless the description of the land conveyed .as the “Town Point Plantation” is permitted to prevail over the other .and mistaken one. A similar question was presented and considered in Quelch v. Futch, 172 N. C., 316, where, at p. 317, the Court said: “We have in the deed in question a description by metes and bounds in which the land in controversy is not conveyed, and also a description which refers to another deed duly recorded by book and page, which .gives a definite description covering the land in controversy. It must be admitted that if the first or specific description entirely is eliminated from the deed, according to the evidence, the second or general description is sufficient, and covers the land described in the complaint. It matters not that the last description follows the warranty. The whole deed must be so construed as to give effect to the plain intent of the grantor, and tbe parts o£ tbe deed will be transposed if necessary. Triplett v. Williams, 149 N. C., 394; 13 Cyc., 627. Tbe entire description in a deed should be considered in determining tbe identity of tbe land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that would aid tbe description. Every part of a deed ought, if possible, to take effect, and every word to operate. A reference to another deed may control a particular description, for tbe deed referred to for purposes of description becomes a part of tbe deed that calls for it. 13 Cyc., 632; Brown v. Rickard, 107 N. C., 639; Everett v. Thomas, 23 N. C., 252. Tbe manifest intention of tbe grantor, Cronly, was to convey the whole of a tract of land, containing 700 acres, more or less, being tbe land conveyed to Cronly by Kirk-wood, and by Williams to Kirkwood. It is in evidence that these deeds referred to cover tbe land in controversy. Tbe fact that tbe metes and bounds of tbe preceding description do not cover it cannot be permitted to destroy tbe description that does cover it. From tbe language of tbe deed an intent to convey tbe entire tract is plainly manifest, and this intent will not be defeated because tbe grantor inserted metes and bounds that are erroneous and do not cover it. As tbe general description is added, not simply to set out tbe grantor’s, title, but to identify and further describe tbe tract of land conveyed, such general description .will be given effect. Tbe additional clause will be considered as added for tbe purpose of giving a more particular description,” citing Rutherford v. Lacy, 48 Mo., 325; Jackson v. Barringer, 15 Johns (N. Y.), 471; Lodge v. Lee, 6 Cranch (U. S.), 237; 13 Cyc., p. 634, note 14. It is then pertinently added by tbe Court: “In tbe deed we have under consideration tbe second or general description is introduced, not solely to set out a chain of title, but evidently to identify, make certain, and describe tbe land conveyed. It is, in fact, an ‘independent description of tbe land so conveyed,’ and amply sufficient to support tbe deed, eliminating any other description.”

And so we may say, with reference to tbe deed now in question, tbe second description was intended, and is, an independent one, which was-intended not merely to show tbe chain of title, but to identify and more certainly to describe tbe land conveyed. In this connection we may well refer to 5 Cyc., p. 881, where it is said: “When there are two descriptions in a deed, one of which describes tbe premises conveyed generally by number or name, and tbe other gives a particular description by metes and bounds, or courses and distances, which is erroneous, tbe latter will be rejected.” Tbe following cases are cited in tbe notes to support tbe text, and they appear clearly to do so: Haley v. Amestory, 44 Cal., 132; Case v. Dexter, 106 N. Y., 548, at 554; and we add Slater v. Rawson, 42 Mass. (1 Metcalf), 450, and Rutherford v. Lacy, 48 Mo., 325. In the first of these eases, it is said: “But, however this may be, we are of the opinion that the ranch is well described by name, and that the particular description was not intended to be used in the sense of restriction. The language is: ‘All the undivided two-thirds (%) of all the lands known by the name of Rancho de San Yicente, situate in the county of Los Angeles, and State of California, the lands of said ranch being known and described as follows.’ This language indicates that the dominant idea in the mind of the grantor, when the deed was made, was of the Rancho of San Yicente as a whole, and not of the particular lines or marks by which it might be described.” This being so, the deed must be held to convey two-thirds of the whole ranch, however erroneous may be the particular description, citing Peck v. Mallams, 10 N. Y., 532; Stanley v. Green, 12 Cal., 148. And in Case v. Dexter, supra, the Court, in- discussing the same question, remarked: “This is not the case of cutting down an interest or estate, once clearly given, by subsequent indefinite or ambiguous language. All the language in the deed, to which we have referred, is a part of a single description, and the sole question is, What land is embraced therein?” In Rutherford v. Lacy, supra, the Court, after considering the question, illustrates it in this way: “If A. sells to B. his farm, and then goes on to describe the farm by course and distance, and there is a mistake or erroneous description, the whole farm will, nevertheless, pass; because, in the case supposed, it was the manifest intention, gathered from the deed itself, to convey the whole farm. Had the grantor (the plaintiff in this case), in his deed, used any apt or appropriate words showing that it was not his intention to convey the whole lot, we should give them effect without regard to any mere verbal arrangement or position they might occupy in the deed. But as it is, without overthrowing well established principles of law, we are not at liberty to construe the deed otherwise than as passing title to the whole lot.” See, also, 5 Cyc., p. 880 (II) ; 13 ibid., p. 634, and noté 14; Masten v. Olcott, 101 N. Y., at p. 158. It was upon the principle of construction just stated, and some of the authorities cited, that the case of Quelch v. Futch, supra, was decided. That case was again before this Court, and is reported in 175 N. C., at p. 694. It approved and affirmed the former case. Chief Justice Ruffin said, in Proctor v. Pool, 15 N. C., at margin p. 375: “Attempts have been made to discover artificial rules for discovering the intention, and the offices of terms of general and particular description defined. The truth is, no positive rule can be laid down; for as each subject differs in some respects from another, and each writer will be more or less precise or perspicuous in expressing himself, the whole instrument is to be looked at, and the inquiry then made, Can it be found out, from this, what the party means? . . . But there seems to be no danger of mistaking the intention of tbe parties, when a thing is given by a particular name, by which it is well known, or by any other description which completely identifies it, although another particular be added which does not apply, it is true, to the thing as before described, but is equally inapplicable to anything else. In such case 'the effect of the true description ought not to be weakened by a further and unnecessary description which is false. . . . Or, as mentioned in Reddick v. Leggat, 7 N. C., 543, if one grant White-acre (by name), which descended from his father, White-acre shall pass; though it descended from the mother; because it was sufficiently identified before.” The general rule is, to be sure, that a particular description will control a general one, because the law prefers the best evidence as to the intention of the parties, and when properly considered, the particular description is more certain and reliable than the other one, and this rule may be preserved in its integrity without conflicting with the principle we apply here.

By the modern and prevailing doctrine, we are required to examine the entire instrument and ascertain the true intention of the parties, for that is what the law seeks to effectuate. Kea v. Robeson, 40 N. C., 373; Gudger v. White, 141 N. C., 507; Triplett v. Williams, 149 N. C., 394; Rowland v. Rowland, 93 N. C., 214; Beacom v. Amos, 161 N. C., 357.

There is, therefore, another view as to the proper construction of the sheriff’s deed, which is conclusively shown by his official acts after he received the execution against Edward M. Mumford. The referee finds with great precision that the sheriff levied the execution upon the “Town Point Plantation,” which was then owned by the defendant in the execution ; and further, that he advertised and sold the same. Mr. Freeman, in his valuable treatise on Executions, says that any descriptive words which would be sufficient in a voluntary conveyance are equally adequate in a conveyance made by the sheriff or other officer. Furthermore, descriptive words which are inadequate in voluntary conveyances are not necessarily so in a sheriff’s deed, because they may be made certain by its recitals and other writings which are thereby so referred to that they may be properly considered as a part of the deed for the purpose of making its descriptive language more perfect. Thus, such a conveyance is ordinarily preceded by a levy and advertisement of sale, and often by a certificate of purchase, some or all of which are referred to in the deed. Hence, in addition to the words used for the purpose of description, it usually appears from the recitals that the land intended to be conveyed is that levied upon under a writ designated, and is that land which, at a time named, was advertised for sale, and afterward sold, and, though the descriptive words in the deed'may be inadequate, or, in some respects, erroneous, such inadequacy may be made adequate or such error corrected by reference to the officer’s return of his levy, or his notice of sale, or to that part of bis return stating the property sold, and the person by whom it was purchased. In either event, we think the description must be regarded as sufficient to divest the title of the judgment debtor if all doubt is removed by incorporating in it the information derived from these various writings, all of which merely constitute successive steps in a proceeding of which the deed is but the last. 1 Freeman on Executions (3 ed.), pp. 1914 and 1915. And he further says: “It is by no means essential that, from a mere inspection of the description, the court should be enabled to know what lands are intended. The tract may be designated by some name not understood by, the court, but perfectly familiar to all persons acquainted with the neighborhood in which the land is situated. Evidence may always be received to show the signification of such a name, or to show that any other descriptive words, though apparently meaningless or uncertain, do in fact designate a particular tract in such a manner that its identity would be apparent to all persons to whom it is familiar.”

In this ease it is expressly found as facts that the sheriff levied the execution upon the “Town Point Plantation”; that he advertised it .for sale, and sold it, by that name, it being a well known tract of land in the particular section where it is situated. If not knowing its precise boundaries, he attempted to describe them and failed to do so, the description by its name will be sufficient, otherwise the deed would be ineffectual to convey the land “levied upon, advertised, and sold by the sheriff,” as found by the referee (falsa demonstrate non nocet). “Addition of false or mistaken descriptions in a deed will not frustrate the grant if there are others sufficiently clear to identify the thing intended to be granted.” Doe v. Jackson, 1 S. & M., 494. See, also, Sherwood v. Whiting, 54 Conn., 330, where the subject is fully discussed with a copious reference to the pertinent authorities. And in Slater v. Breese, 36 Mich., 71, at p. 80, it is said by the Court: “It is not essential to the validity of a grant that the property should be so described as to avoid the necessity of an appeal to extrinsic proofs to apply the grant to the property. The subject-matter must undoubtedly be so ear-marked in the grant as to be capable of being distinguished from other things of the same kind. But it is always competent to fix and identify by extrinsic proof the natural monuments and other badges of identity and connect the description in the deed with the material subject-matter dealt with by it. The property to be granted may have a particular name by reputation, and if so, it may be described by such name, without giving monuments, boundaries, or the like; and outside evidence may be resorted to, to apply the name to that which it signifies. Indeed, the instances are rare in which no help whatever is required. If the means are given in the grant, either by a name of notoriety or by specified monuments and other definite particulars, to identify the thing meant to be granted, with the aid of outside examination and proof to fix and determine the (identity of the) name with the thing, the description is prima facie sufficient. And omitting to name the state, county, and township will not prejudice where other adequate elements of identification exist.

“It is also well settled that if there are descriptive signs satisfactorily ascertained which designate the thing meant to be granted, the addition of circumstances or accompaniments which are untrue will not defeat the grant. They may be rejected. This principle is confirmed and its ■application illustrated in numerous cases. Now, it is quite plain that the descriptive part of complainant’s mortgage has some inaccuracies, but it is equally plain that the terms of the description, when taken together, are abundantly sufficient, with such aids as are admissible, to identify the land.” This case refers to many authorities in support of the principle.

It was said by Justice Ashe, in Credle v. Hays, 88 N. C., at p. 324: '“In our case the intent of the parties to the deed from the sheriff to ‘Tilson Oredle to convey the land owned by B. E. Oredle (the defendant in the execution under which it was sold) manifestly appears from the ■deed itself; and if the calls of courses in the deed should be held to be the true boundary of the land conveyed, the intent of the parties would be entirely disappointed,” because, as he adds, the deed, if read according to the calls, does not cover the land evidently intended to be conveyed, and therefore would be ineffectual, and that would be the result in this case, unless the other description, “Town Point Plantation,” is taken to be the true and controlling description (Quelch v. Futch, supra), it having been found by the referee to be not only an accurate one, but also that the tract of land thus described is in itself well known to those living in the community or locality, where it is situated, and has well defined lines and boundaries. See Lodge, Lessee, v. Lee, supra, where only part of the island was described by definite calls, when all of it was intended to pass to the grantee. Rutherford v. Lacy, 48 Mo., 425; Jaclcson v. Barringer, 15 Johnson, 471; 13 Cyc., p. 634, note 14.

Before closing, we should call attention to the fact that in Ferguson v. Fibre Co., 182 N. C., 731, we have recently considered the question as to specific and general descriptions in deeds, and other instruments, citing and commenting upon Quelch v. Futch, supra, though one of the descriptions in the Ferguson case, supra, was by metes and bounds and the other so to a certain extent. But the case has some bearing upon this one, and illustrates the principle that the law seeks for the intention of the parties, and will enforce it when it can be ascertained, and especially so when it is manifest.

The defendants contend that there are other difficulties for the plaintiffs to overcome before they can establish a title to the land or timber, but it is unnecessary to consider them, the decision-of the question as to the sheriff’s deed being sufficient to settle the controversy.

The reference having been by consent of the parties, the plaintiffs were not entitled to have issues submitted to the jury.

We have not discussed the question of adverse possession, as that was settled by the finding that there had been none, the title to the land having been continuously in dispute.

We find no error in the record, and therefore sustain the judgment.

Affirmed.