Ferguson v. Champion Fibre Co.

110 S.E. 220, 182 N.C. 731, 1921 N.C. LEXIS 314

Opinion

WalKeb, J.,

after stating the facts: It cannot now be questioned, after so much has been said by this and many other courts upon the subject, that a deed must be construed most strongly against the grantor (R. R. v. Carpenter, 165 N. C., 465), but that does not mean that its description must be made to include land not conveyed by it. There are two descriptions of the land in this case to be found in the deed in question, one is by metes and bounds, and the other by more general words. It is admitted that the land in dispute is not embraced by the metes and bounds set forth in the deed, but it is contended by the plaintiff that it is included in the other description. The plaintiff argues that if the particular description by metes and bounds does not cover the lands in dispute, it is competent to read it in connection with the second description, although more general in form, in order to show, that while the grantor did not use apt terms to convey any of it by the first description, he did enlarge the boundaries by the second, so that they take in the locus in quo as well as the lands first described, and he relies on the case of Quelch v. Futch, 172 N. C., 316. It was there substantially held that if the first or specific description is entirely eliminated, from the deed, the second, or general description, is sufficient to cover the land described in the complaint, and 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 the parts of the' deed will be transposed if necessary. The entire description in a deed should be considered in •determining the identity of the land conveyed, citing Triplett v. Williams, 149 N. C., 394; 13 Cyc., 627. And further, that clauses inserted in a deed should be regarded as put there for a purpose, and should be given a meaning that will aid the description. Every part of the deed ought, if possible, to take effect, and every word to operate, and if, from the language of the deed, an intent to convey the entire tract is plainly manifest, this intent will not be defeated because the grantor inserted metes and bounds that are erroneous and do not cover it. As the general description is added, not simply to set out the grantor’s title, but to identify and further describe the tract of land conveyed, such general description will be given effect, and the additional clause will be con sidered as added for the purpose of giving a more particular or certain description. Jones v. McCormick, 174 N. C., 82; Quelch v. Futch, 175 N. C., 694. This principle may be conceded when confined within its proper limits, and correctly applied to the special facts under consideration, but we do not deem it applicable to our case. If the first description by metes and bounds does not embrace the locus in quo, the second one should not be allowed to control it, and thereby enlarge its boundaries, unless it was the clear, if not manifest, intention of the grantor to do so and to convey lands not covered by the first description. Instead of showing such a purpose, on the part of the grantor, to extend the boundaries beyond those set forth by metes and bounds, we are of the opinion that the second or further description gives strength and confirmation to the view that it was not the intention of the grantor to do so, but merely to repeat the former description, but in different, and, as he evidently supposed, plainer and more unmistakable language.

It will be observed that the general boundaries of the last description are substantially those of the more particular one, or that by metes and bounds, except in respect to the “Love speculation lands” or “Allison grant, No. 251,” as claimed by the Love estate, the last boundary mentioned being “the line of the Welch or Davis tract of land.” There would be a perfect correspondence between the two descriptions, if it were not for the description of the boundary next to the last, or closing line, as the “Love speculation land or Allison grant, No. 251,” but the latter is so limited or restricted in its extent by the fact that it does not go beyond, and was not intended to go beyond the “top of the Jones Knob,” that this makes but little or no difference.

The closing words of the second description are such as to show almost, if not quite, conclusively that the intention was that the calls should be run with the line of the “Love speculation land,” down to its intersection with the 1-ine of the Welch or Davis tract (grant No. 586), on the Jones Knob, and from that j)óint, “so as to exclude the Welch or Davis tract (grant No. 586), but to run with the line of the same, crossing the mountain, and as the closing line of the land conveyed, to the beginning. This must, of necessity, mean, if it means anything, that the closing line is the upper or northern boundary line of the Welch or Davis tract of land, for the reason, at least, if for no other, that we must run from the Jones Knob to the beginning, so as to exclude the Welch or Davis tract, and we would not obey this instruction of the grantor should we run from the Jones Knob by 14, G-. H., and thence by the “Keener line” to the beginning at A. If we should pursue the latter course it would include, instead of exclude, the Welch or Davis tract. This, we think inevitably follows from the very words employed by the grantor when applied to the map in the record, and our knowledge of -the lands, and tbe several tracts composing it, in their relative positions with respect to each other. The turning words in the description, and the most significant as indicating the true intention, are those which require us to start on the Jones Knob at the intersection of the Allison and the Welch or Davis line, and run with the latter line, but so as to exclude the Welch or Davis land, grant No. 586 (designated as the Davis tract on the map), to the beginning. Those words were well chosen by the grantor to express the intention that no land should pass by his deed except those described in the first description by metes and bounds, and that the second description was inserted not for the purpose of extending the boundaries of the lands, but merely as another way of making his meaning, in the first description, less liable to misunderstanding. It is the same as if he said, after conveying the lands by metes and bounds, “or, in other words, and to describe the said land more certainly, I declare my intention to be,” and then using the language of the second or further description. Nothing in the way of land was to be added to that already conveyed, and this was to appear with greater certainty, if possible, by the use of the definite words of exclusion, that the closing line should be the Welch or Davis line so run from the Jones Knob as to exclude the Welch or Davis tract. If close attention is given to the map when reading these two descriptions together, or even separately, but one conclusion is even permissible, which is the one we have adopted and already stated. There are other considerations which lead us to the same result; one of which is that if we should follow the course, or calls, as suggested by the plaintiff from the Jones Knob to the beginning at A (on the map), we would necessarily have to adopt at least three different calls instead of the two mentioned in the deed, and, besides, there are physical marks, and one line of another tract, in that course which do not appear in the deed; and again, the length of the lines are so different, and still further we may say, that the lower line of the Welch or Davis tract, known as the Olmstead or Oathcart line, is crossed by at least three creeks, or streams, that is, Buff Creek, North Fork, and Woodfin Greek, and Fisher Greek near by, which are not referred to in the deed, while Black Rock Creek and Shulin Creek, which cross the other line near its terminus at A, are mentioned when closely approaching the beginning corner at A (on the map). We are clearly of the opinion that the line of the Cathcart grant, Indian boundary (which means that it is the Indian boundary, the two terms being placed in apposition), is not the Olmstead or Cathcart line, which is the lower or southern boundary of the Welch or Davis tract, and it is so indicated on the court map, but the line of the Oathcart grant, which is the same as the “Indian boundary.” The land in this Oathcart grant or Indian boundary lies north or northwest of Soco Creek, Black Rock Creek, Shulin Creek, and Hornbuckle Creek, and is not anywhere near the Olmstead or lower Oathcart tract. There is no Indian boundary at the latter place or in its neighborhood. There are still other reasons we could assign for the view that the line running from the Jones Knob with the Welch or Davis line is the only one that answers all calls and descriptions, and, too, the only one that will exclude the Welch or Davis tract in returning to A, the beginning corner. The map shows that both lines, the upper and the lower, cross the mountains.

It would appear from the deed dated 20 June, 1915, that in a certain settlement between the McAdens and the defendant, the former conveyed to the latter “the scraps or pieces of land of a few hundred acres lying inside of grant No. 970, to E. B. Olmstead aforesaid, outside of the McAden-Balsam timber tract and the Davis lands or Welch grant, No. 586 — and other older and superior titles inside of grant No. 970, and in order to carry out the indenture and agreement of 20 June, 1915, aforesaid.” This would indicate that the McAdens did own land within the Olmstead grant, No. 970, described in the deed as “a few hundred acres,” other than the lands they had previously conveyed to J. W. Ferguson, 'arid the particular description of these “scraps or pieces of land,” if examined in connection with the map, appear to be the locus in quo, or in - its vicinity, and to include it.

As we have before said, we attach little "or no significance to the claim that the McAdens listed no lands for taxation in Jackson County after the date of the deed to J. W. Ferguson, as the evidence concerning it, if not contradictory, is, at least, vague and unreliable, and the plaintiff's testimony relating to it is not at all definite. The county register of deeds testified that certain lands were listed by them on what he called the “Discovery List,” that is, as lands omitted from the regular lists, and afterwards discovered as being unlisted.

■ We have not .discussed all the many and variety of questions raised 'in this case, as it would be vain and useless to do so, but have confined ourselves strictly to those which are the most material a,nd relevant, and which are determinative of the controversy.

As the case was practically decided in the court below upon facts admitted by the parties, we direct that the judgment be reversed, and that the case be remanded to the end that judgment be entered for the defendant..

Reversed.

Hose, J., did not sit.