Sugg v. Town of Greenville

after stating the case: We have often said that what is the boundary of a tract of land is a question of law, but where it is, we have as often held to be a question of fact. The call in the deed of Minnie 0. Sugg to B. B. Sugg, “thence with Elizabeth extended through its intersection with Fifth Street” does not necessarily mean that the extension must be the full width of the northern or original part of the street, as there is evidence in this case, and strong evidence, too, that Elizabeth Street had been extended below Fifth Street by the town, but not the same width as above, and it is not infrequently the case that the extension of a street beyond its intersection with another street is not *613of.tbe same width as that portion of the street that is extended or lengthened, and sometimes the extension does not have lines which are coincident with or opposite to those of the other part of the same street, as offsets are sometimes to be found. But, however this may be, the deed, and the evidence taken in connection with the physical facts, show that the parties may have intended that the western line of the land conveyed to plaintiff, B. B. Sugg, should not be at CD, as shown on the map and as contended by the defendant, but at AB, as shown on the map and as contended by the plaintiff. Did the parties mean the lines of Elizabeth Street as theoretically or mathematically extended or as actually extended at the time?

The town was not bound to accept the land as a part of its street, even though the parties may have intended by the deed to have that much space open, as a dedication for the street, to await the acceptance of the town, because the town has the right to decide where its streets shall be and how long and how wide they shall be. Kennedy v. Williams, 87 N. C., 6. We do not think the call was so definite, precise and unambiguous as to leave no room for fair opinion as to what was meant and to exclude all construction of the deed. If it was meant by the parties to establish the line at CD, then that, in law, is the line regardless of the action of the town; but it was competent for the jury, upon all the evidence, to consider and say whether that was meant, or whether, on the contrary, the parties intended to refer only to the eastern line of Elizabeth Street below Fifth Street as actually established by the town. A reading of the deed would, at first sight, and without any knowledge of or attention to the facts, seem to favor the defendant's view; but when they consider the pertinent evidence, a very different conclusion might be reached by the jury.

There is this to be further said, that the parties may have meant Elizabeth Street as extended, and not merely extended with the identical lines of the original street. There is another view, of which the deed and other evidence are susceptible, and one which the jury may take, if the case is submitted to them. The line is not bound to make the street of the same width on the south as on its north side. What shall be its conformation and location is a matter committed by the law entirely to the judgment and sound discretion of the public authorities having the matter in charge, and if they have already acted, at the time a deed is made, and delineated the street, so that it has become a fixed and established highway of the town, there is no reason why the parties may not be considered to have written their deed with reference to this well known physical fact, and that, when they called for Elizabeth Street extended, they meant as already extended by the town, rather than that the street should be considered as theoretically extended on the same side lines as *614those of the original street. Whether they intended a theoretical or the practical extension of the line was eminently a question for the jury to determine. In this connection it may be well to state several rules laid down in the books and sanctioned by the authorities:

■ 1. Although the court should decide who holds title where it rests upon the legal effect of the deed, yet the court may instruct the jury that the legal title vests in a certain person or not, and leave it to them to decide as a fact who is entitled, where the identity of such person is in issue. This would apply equally to land, where the question of identity is involved.

2. The intention of the parties as apparent in a deed should generally control in determining the property conveyed thereby. But if the intent is not apparent from the deed resort may be had to the general rules of construction.

3. Where the words used in the description in a deed are .uncertain or ambiguous and the parties have by their acts given a practical construction thereto, the construction so put upon the deed by them may be resorted to, to aid in ascertaining their intention.

4. 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 will aid the description. Every part of a deed ought, if possible, to take effect and every word to operate.

5. If recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail over the latter, but the whole language of the deed is to be construed together in order that the true construction may be ascertained. In such a case the court will look into the surrounding facts and will adopt that construction which is the most definite and certain and which will carry out the evident intention of the parties. And if the land conveyed is sufficiently identified by certain parts of the description, an impossible or senseless course should be disregarded, and the deed sustained.

6. Where the description of the property intended to be conveyed is ambiguous, the identity of such property must be gathered from the intention of the parties as shown by the instrument itself and the accompanying circumstances, such as those surrounding and connected with the parties and the land at the time. , Words may, if necessary, be qualified by intendment and particular clauses and provisions qualified, transferred, or rejected in order to ascertain the intention.

7. Another instrument may, in some cases, be construed with a deed as a part of the same transaction for the purpose of ■ determining the identity of the property conveyed. And a recorded plat of lots may be construed with a deed in order to determine the dimensions of the property, or a town plan may be referred to.

*6158. Tbe description of tbe property conveyed by a deed should be construed against tbe grantor and in tbe manner most beneficial to tbe grantee.

9. In order to ascertain tbe intention of tbe parties in respect to tbe property conveyed, reference may be bad to tbe state of facts as tbey existed wben tbe instrument was made and to which tbe parties may bo presumed to have bad reference.

10. A description of tbe property as occupied by tbe grantor may control other words in tbe description in determining tñe identity of tbe property conveyed. 13 Gyc., pp. 626, 627, 628, 630, and cases in tbe notes.

Tbe full description in tbe plaintiff’s deed is as follows: “Situate in tbe town of Greenville, Pitt County, North Carolina, on tbe southerly side of Fifth Street, and eastward side of Elizabeth Street and beginning at an iron stake on Fifth Street in said town of Greenville, located on tbe southern edge of Fifth Street, between tbe A. C. L. Railroad and Elizabeth Street and runs thence a southerly direction a straight line to a stake in tbe back line of tbe lot of Minnie 0. Sugg; then a westwardly direction with tbe back line of Minnie O. Sugg lot to Elizabeth Street extended; thence with Elizabeth extended through its intersection with Fifth Street; thence with Fifth Street an eastwardly direction to the beginning, an iron stake, and being tbe westwardly portion of tbe lot conveyed by T. J. Jarvis, commissioner, to Minnie O. ■ Exum by deed dated 19 September, 1894, and recorded in tbe register’s office in Pitt County in Book S-5, page 378; Minnie 0. Exum mentioned in said deed being tbe same person as Minnie 0. Sugg, tbe grantor in this deed. Minnie 0. Sugg, tbe grantor in this deed, hereby reserves to herself, her heirs and assigns tbe right of ingress and egress for tbe purpose of a driveway from Elizabeth Street extended over and across tbe lot herein conveyed along tbe back line of tbe same to tbe lot whereon tbe said Minnie 0. Sugg now resides, adjoining tbe lot herein conveyed.”

The words “through its intersection” were evidently intended for “to its intersection,” for otherwise tbey would be meaningless. We have nothing, then, except tbe words “Elizabeth Street extended,” but extended bow: according to and with tbe lines it has north of Fifth Street, or extended as was done by tbe town? Tbe word “extended” is not, of itself, sufficient to confine tbe description to tbe lines north of Fifth Street merely elongated, or in other words to tbe width at that part of tbe street, for standing by itself it may mean a theoretical extension, or one that is actual, which is sometimes called’a practical one, that is, one which was made on tbe ground at tbe time of this conveyance. ' If there bad been none such, it might well be argued that tbe call should be restricted to a theoretical location of tbe street’s eastern line that would exactly correspond with the lines north of Fifth Street.

*616If we are governed by tbe rules adopted for. our guidance and wbicb are set out above, we must look at tbe description as a whole, giving effect to every material part of it. Tbe very opening sentence is “situate on tbe southerly side of Fifth Street and the eastward side of Elizabeth Street ” and the latter words, wbicb we have italicized, would surely call for inquiry as to where tbe east side of tbe street is, for the word “extended” is not used, in this connection. We may, under those rules, as we have seen, take into consideration that Mrs. Sugg has in tbe deed expressed the intention clearly to pass to B. B. Sugg “tbe westwardly portion of the lot theretofore conveyed by T. J. Jarvis, commissioner, to her,” wbicb was all tbe land west of tbe line GH, and extending to tbe eastern line of Wiley Vines, as she owned that land and acquired title to it under tbe .Jarvis deed. We do not mean to say that this part of tbe description is controlling, but that it may be taken into consideration in order to determine what she intended to convey, as gathered from tbe entire deed.

It is said in 13 Cyc., 637: “Tbe question as to what property passes by a deed may be controlled by a general clause conveying all of tbe grantor’s property. Tbe construction of a description with such a clause therein is dependent upon tbe intention of tbe parties, and where it appears from tbe entire deed that it was tbe manifest intention to convey all of tbe property of tbe grantor a construction consistent therewith will be given. In construing a clause of this character tbe rule applies that tbe language is to be construed against tbe grantor.”

It is true that a particular description, wbicb is clear and explicit and completely identifies tbe property intended to be conveyed, will not be varied or enlarged by a more general and less definite one, as, in such a case, tbe former will be considered as expressing more certainly and reliably tbe intent of tbe parties rather than tbe latter, but, notwithstanding.this rule of construction, a general clause or recital in a deed, wbicb broadens tbe terms of tbe grant, will not be altogether excluded as something that sheds no light on tbe meaning, though it does not override tbe other more definite call. 13 Cyc., 631 (e).

This doctrine wbicb requires us to look at tbe whole deed and to give some effect, at least, to all of its several parts, was clearly stated, with apt citation of authority by Justice Hoke in Railroad Co. v. Railroad Co., 147 N. C., at p. 382: “It is well recognized that tbe object of all rules of interpretation is to arrive at tbe intention of tbe parties as expressed in tbe contract, and that in written contracts wbicb permit of construction this intent is to be gathered from a perusal of tbe entire instrument. In Paige on Contracts, sec. 1112, we find it stated: ‘Since tbe object of construction is to ascertain tbe intent of tbe parties, tbe contract must be considered as an entirety. Tbe problem is not what *617the separate .parts mean, but what the contract means when considered as a whole.’ And while in arriving at this intent words are’ prima facie to be given their ordinary meaning, this rule does not obtain when the ‘context or admissible evidence shows that another meaning was intended.’ Paige, sec. 1105. And, further, in section 1106, it is said that the context and subject-matter may affect the meaning of the words of a contract, especially if in connection with the subject-matter the ordinary meaning of the term would give an absurd result. Again, as said by Woods, J., in Merriam v. United States, 107 U. S., 441: “In such contracts it is a fundamental rule of construction that the courts may look to not only the language employed, but to the subject-matter and surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.’ And in Beach on Modern Law Contracts, see. 702, the author says: ‘To ascertain the intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects they had in view. The words employed, if capable of more than one meaning, are to be given that meaning which it is apparent the parties intended them to have.’ ” It is then added that parol testimony was properly received to show the attendant facts and circumstances for the purpose of a proper construction of the lease, citing Ivey v. Cotton Mills, 143 N. C., 189, and Ward v. Gay, 137 N. C., 397. Our conclusion is that the description in the deed is sufficiently indefinite to raise an issue for the jury to decide, under the guidance of the court lipón the law, as to what the parties intended.

It was stated on the argument that the court ordered a nonsuit as to the feme plaintiff, because she had not filed her claim with .the proper municipal authorities as required by Eevisal, sec. 1384. This section, which corresponds with section 757 of the Code of 1883, has been construed by this Court in several cases and held not to apply to actions ex contractu where the damages are unliquidated, nor to torts. Shields v. Durham, 118 N. C., 450; Frisbee v. Marshall, 119 N. C., 570; Sheldon v. Asheville, ibid., 606; Nicholson v. Commissioners, 121 N. C., 27, and finally in Neal v. Marion, 126 N. C., 412.

We do not see why she is a necessary party. If she did not, by her deed, convey this land to the plaintiff, but has retained the title in herself, her right and her action to recover the land, or damages for its taking, would be separate and distinct from his claim, and her present coplaintiff would have no interest therein, and if she did convey it, her presence is not required to vindicate his rights under the deed, as she had parted with the title to him. But had the plaintiff, B. B. Sugg, alleged that, if the land did not pass by the deed, it was intended that it should, and the description, if it was omitted by a mutual mistake of the *618two plaintiffs in tbis action, and, upon this allegation, had asked for a correction, as he may yet do, with the permission of the court, then she would be a proper, if not. a necessary party. On proper application to the court below, the plaintiff will, no doubt, be allowed to amend the complaint, so as to make the proper allegation in regard to the mistake, if there was one, and in the event that permission to amend is granted, Mrs. Sugg would be made a party, plaintiff or defendant, as the parties may be advised. If this is done and the jury decide, under the instructions of the court, that the deed did not convey the land, they could then pass upon the issue as to the mistake, and say whether or not the effect of the deed, as they thus find it to be, was produced contrary to the intentions of the parties, and that, while it was their purpose to convey the land, they had failed to insert it in the deed by their mistake or the inadvertence of the draftsman acting under their instructions.

It follows from what we have said that there was error as to the plaintiff B. B. Sugg, for which there must be a new trial. We do not think that Mrs. Sugg has appealed, and she tendered no separate case on appeal.

New trial.