Walkeb, J.,
after stating the case: We will consider the grounds of demurrer in the order of their statement by the defendant.
First. It will be observed from the above synopsis of the complaint and demurrer that the latter raises issues of fact rather than questions of law, by simply denying the allegations, and, in this respect, it partakes somewhat of the nature of a speaking demurrer, and is not confined to its true and limited function. As to the first ground of demurrer, it appears sufficiently that the heirs or devisees of the trustees have been made parties by personal service of process or by substituted service.
Second. It is substantially alleged in the complaint that if the deed really conveys the land to the individuals who are named as trustees, so as to vest the title in them and for themselves, and not as trustees of plaintiff, it was not the intention of the parties so to do, but to convey to them as trustees for the plaintiff, and if this is not expressed in the deed it resulted from the mutual mistake of the parties. But we think that the deed does convey the land to the trustees for the plaintiff. It is familiar learning that a deed, as well as any other instrument, must be construed as a whole and a meaning by construction given to every part thereof, and another rule is that it must be interpreted according to the intention of the parties, to be gathered from its words, and without special regard for its formal arrangement.
Brown v. Brown,
168 N. C., 4, at p. 10, where we said: “Words shall always operate according to the intention of the parties, if by law they may, and if they cannot operate in one form they shall operate in that which by law shall effectuate the intention. This is-the more just and rational mode of expounding a deed, for if the intention cannot be ascertained, the rigor
ous rule is resorted to from tbe necessity of taking tbe deed most strongly against tbe grantor. Courts are always desirous of giving effect to instruments according to tbe intention of tbe parties, as far as tbe law will allow. It is so just and reasonable tbat it should be so tbat it bas long grown into a maxim that favorable constructions are to be put on deeds. Hence, words, when it can be seen tbat tbe parties have so used them, may be received in a sense different from tbat which is proper to them; and tbe different parts of tbe instrument may be transposed in order to carry out tbe intent.” Citing numerous cases, among them
Campbell v. McArthur,
9 N. C., 38;
Kea v. Robeson,
40 N. C., 373;
Gudger v. White,
141 N. C., 507;
Triplett v. Williams,
149 N. C., 394. And in
Gudger v. White, supra:
“It is not difficult by reading tbe deed to reach a satisfactory conclusion as to what tbe parties meant, and we are required by tbe settled canon of construction so to interpret it as to ascertain and effectuate tbe intention of tbe parties. Their meaning, it is true, must be expressed in tbe instrument; but it is proper to seek for a rational purpose in tbe language and provisions of tbe deed and to construe it consistently with reason and common sense. If there is any doubt entertained as to tbe real intention we should reject tbat interpretation which plainly leads to injustice, and adopt tbat one which conforms more to tbe presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to tbe inflexible rule tbat tbe intention must be gathered from tbe entire instrument, 'after looking,’ as tbe phrase is, 'at tbe four corners of it.’ An effort should bo made to give some meaning, and tbe correct one, to tbe deed, • if possible. If tbe effort is doomed to failure by reason of uncertainty or repugnancy, so tbat we cannot ascertain tbe meaning by any fair rule of construction, or by reason of its ambiguity of expression, so tbat we are unable to understand, from tbe language of tbe deed, who are tbe parties or what is tbe subject-matter, or, if they be known, what estate is conveyed, or any other matter essential to its validity,
the
instrument, of necessity, must fail.” Citing
Kea v. Robeson, supra; Real Estate Co. v. Bland,
152 N. C., 225;
Puckett v. Morgan,
158 N. C., 344. Applying this rule of construction to tbe deed in question, we entertain no doubt tbat tbe meaning of tbe parties was to convey tbe land to tbe persons named, in trust for the plaintiff.
Third. Tbe object of this suit is to have new trustees appointed in place of those whose names appear in tbe deed, and tbe court below bad jurisdiction of the case and the power to grant tbe relief. It was held in
Roseman v. Roseman,
127 N. C., 494, 497, where a somewhat similar question was raised: “The Superior Court undoubtedly bad authority, under its general equity jurisdiction, to appoint a new trustee to prevent a failure of tbe trust, if tbe proceeding bad begun by writ returnable to tbat court.” It was not necessary, therefore, tbat trustees should
have been appointed in a separate proceeding before tbis suit was brought.
Fourth. We doubt if any correction of the deed is necessary, as this action is for the recovery of the possession of land and damages for a trespass thereon, and, as against a wrongdoer, plaintiff can recover on its equitable title.
Shannon v. Lamb,
126 N. C., 47;
Hinton v. Moore,
139 N. C., 44. In
Murray v.
Blackledge, 71 N. C., 492, it was held that the equitable owner of land may maintain an action for its recovery although the legal estate is in his trustee; and to the same effect are these cases:
Farmer v. Daniel,
82 N. C., 152;
Ryan v. McGehee,
83 N. C., 500;
Condry v. Cheshire,
88 N. C., 375. Whether the plaintiff’s cause of action is barred by laches or the'statute of limitations is a question which is not now before us. The bar of the statute of limitations cannot be raised by demurrer, and, as to laches, there is nothing in the present stage of the case that will enable us to pass upon that question. It may be different when the facts are fully disclosed, but we do not know now what they will be.
As the deed created a passive, as distinguished from an active, trust, there being nothing for the trustees to do b.ut to hold the legal title for the corporation, the use was executed by the statute, or, in other words, possession was transferred to the use, and the corporation thereby acquired the entire estate.
Johnson v. Prairie,
91 N. C., 159;
Hallyburton v. Slagle,
130 N. C., 482;
Cameron v. Hicks,
141 N. C., 21.
As to the plaintiff being described by the wrong name in the deed, this is at most but a misnomer or latent ambiguity, which can be explained by parol evidence so as to fit the description to the person or corporation intended.
Institute v. Norwood,
45 N. C., 65;
Ryan v. Martin,
91 N. C., 465;
Asheville Division v. Aston,
92 N. C., 579, 584;
Simmons v. Allison,
118 N. C., 776;
Keith v. Scales,
124 N. C., 497;
Walker v. Miller,
139 N. C., 448. A misnomer does not vitiate, provided the identity of the corporation with that intended to he named by the parties is apparent. Angelí & Ames Corp., sees. 185, 234; Morawetz Corp., 181.
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Walkeb, J.,
after stating the case: We will consider the grounds of demurrer in the order of their statement by the defendant.
First. It will be observed from the above synopsis of the complaint and demurrer that the latter raises issues of fact rather than questions of law, by simply denying the allegations, and, in this respect, it partakes somewhat of the nature of a speaking demurrer, and is not confined to its true and limited function. As to the first ground of demurrer, it appears sufficiently that the heirs or devisees of the trustees have been made parties by personal service of process or by substituted service.
Second. It is substantially alleged in the complaint that if the deed really conveys the land to the individuals who are named as trustees, so as to vest the title in them and for themselves, and not as trustees of plaintiff, it was not the intention of the parties so to do, but to convey to them as trustees for the plaintiff, and if this is not expressed in the deed it resulted from the mutual mistake of the parties. But we think that the deed does convey the land to the trustees for the plaintiff. It is familiar learning that a deed, as well as any other instrument, must be construed as a whole and a meaning by construction given to every part thereof, and another rule is that it must be interpreted according to the intention of the parties, to be gathered from its words, and without special regard for its formal arrangement.
Brown v. Brown,
168 N. C., 4, at p. 10, where we said: “Words shall always operate according to the intention of the parties, if by law they may, and if they cannot operate in one form they shall operate in that which by law shall effectuate the intention. This is-the more just and rational mode of expounding a deed, for if the intention cannot be ascertained, the rigor
ous rule is resorted to from tbe necessity of taking tbe deed most strongly against tbe grantor. Courts are always desirous of giving effect to instruments according to tbe intention of tbe parties, as far as tbe law will allow. It is so just and reasonable tbat it should be so tbat it bas long grown into a maxim that favorable constructions are to be put on deeds. Hence, words, when it can be seen tbat tbe parties have so used them, may be received in a sense different from tbat which is proper to them; and tbe different parts of tbe instrument may be transposed in order to carry out tbe intent.” Citing numerous cases, among them
Campbell v. McArthur,
9 N. C., 38;
Kea v. Robeson,
40 N. C., 373;
Gudger v. White,
141 N. C., 507;
Triplett v. Williams,
149 N. C., 394. And in
Gudger v. White, supra:
“It is not difficult by reading tbe deed to reach a satisfactory conclusion as to what tbe parties meant, and we are required by tbe settled canon of construction so to interpret it as to ascertain and effectuate tbe intention of tbe parties. Their meaning, it is true, must be expressed in tbe instrument; but it is proper to seek for a rational purpose in tbe language and provisions of tbe deed and to construe it consistently with reason and common sense. If there is any doubt entertained as to tbe real intention we should reject tbat interpretation which plainly leads to injustice, and adopt tbat one which conforms more to tbe presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to tbe inflexible rule tbat tbe intention must be gathered from tbe entire instrument, 'after looking,’ as tbe phrase is, 'at tbe four corners of it.’ An effort should bo made to give some meaning, and tbe correct one, to tbe deed, • if possible. If tbe effort is doomed to failure by reason of uncertainty or repugnancy, so tbat we cannot ascertain tbe meaning by any fair rule of construction, or by reason of its ambiguity of expression, so tbat we are unable to understand, from tbe language of tbe deed, who are tbe parties or what is tbe subject-matter, or, if they be known, what estate is conveyed, or any other matter essential to its validity,
the
instrument, of necessity, must fail.” Citing
Kea v. Robeson, supra; Real Estate Co. v. Bland,
152 N. C., 225;
Puckett v. Morgan,
158 N. C., 344. Applying this rule of construction to tbe deed in question, we entertain no doubt tbat tbe meaning of tbe parties was to convey tbe land to tbe persons named, in trust for the plaintiff.
Third. Tbe object of this suit is to have new trustees appointed in place of those whose names appear in tbe deed, and tbe court below bad jurisdiction of the case and the power to grant tbe relief. It was held in
Roseman v. Roseman,
127 N. C., 494, 497, where a somewhat similar question was raised: “The Superior Court undoubtedly bad authority, under its general equity jurisdiction, to appoint a new trustee to prevent a failure of tbe trust, if tbe proceeding bad begun by writ returnable to tbat court.” It was not necessary, therefore, tbat trustees should
have been appointed in a separate proceeding before tbis suit was brought.
Fourth. We doubt if any correction of the deed is necessary, as this action is for the recovery of the possession of land and damages for a trespass thereon, and, as against a wrongdoer, plaintiff can recover on its equitable title.
Shannon v. Lamb,
126 N. C., 47;
Hinton v. Moore,
139 N. C., 44. In
Murray v.
Blackledge, 71 N. C., 492, it was held that the equitable owner of land may maintain an action for its recovery although the legal estate is in his trustee; and to the same effect are these cases:
Farmer v. Daniel,
82 N. C., 152;
Ryan v. McGehee,
83 N. C., 500;
Condry v. Cheshire,
88 N. C., 375. Whether the plaintiff’s cause of action is barred by laches or the'statute of limitations is a question which is not now before us. The bar of the statute of limitations cannot be raised by demurrer, and, as to laches, there is nothing in the present stage of the case that will enable us to pass upon that question. It may be different when the facts are fully disclosed, but we do not know now what they will be.
As the deed created a passive, as distinguished from an active, trust, there being nothing for the trustees to do b.ut to hold the legal title for the corporation, the use was executed by the statute, or, in other words, possession was transferred to the use, and the corporation thereby acquired the entire estate.
Johnson v. Prairie,
91 N. C., 159;
Hallyburton v. Slagle,
130 N. C., 482;
Cameron v. Hicks,
141 N. C., 21.
As to the plaintiff being described by the wrong name in the deed, this is at most but a misnomer or latent ambiguity, which can be explained by parol evidence so as to fit the description to the person or corporation intended.
Institute v. Norwood,
45 N. C., 65;
Ryan v. Martin,
91 N. C., 465;
Asheville Division v. Aston,
92 N. C., 579, 584;
Simmons v. Allison,
118 N. C., 776;
Keith v. Scales,
124 N. C., 497;
Walker v. Miller,
139 N. C., 448. A misnomer does not vitiate, provided the identity of the corporation with that intended to he named by the parties is apparent. Angelí & Ames Corp., sees. 185, 234; Morawetz Corp., 181. “The name of a corporation frequently consists of several words, and an omission or alteration of several of them is not material.” Angelí & Ames Corp., sec. 99. “A grant of .land from an individual to a corporation will be good if it can be clearly discovered from the terms of it what corporate body was intended, though an omission or mistake in the corporate name may have been made.”
Asheville Division v. Aston, supra;
citing Grant Corp., 51.
Ryan v. Martin, supra,
is very much in point here, for here it was said: “The objection that the corporation in question was sometimes called the ‘Deep River Mining Co.’ and IDeep River Copper Mining Co.,’ and other like names, is not well founded. A corporate name is essential, but the inadvertent or mistaken use of the name is ordinarily not material if the parties really intended
tbe corporation by its proper name. If tbe name is expressed in tbe written instrument, so tbat tbe real name can be ascertained from it, tbis is sufficient; but if necessary, other evidence may be produced to establish what corporation was intended. And tbe same rule applies to devises and bequests to corporations. A misnomer of a corporation has tbe same legal effect as a misnomer of an individual.”
Fifth. Tbe fifth and sixth grounds of demurrer have been fully met by what we have already said in regard to tbe others.
Tbe decision of tbe court in overruling the demurrer was correct, and we affirm its order. We do not sustain tbe plaintiff’s contention tbat tbe demurrer is frivolous and, being so, they are entitled to judgment; and tbe other part, therefore, permitting defendants to answer over, will stand, defendants to pay tbe costs of tbis Court.
Affirmed.