Carney v. Edwards

122 S.E.2d 786 (1961)

256 N.C. 20

Geraldine M. CARNEY v. Francis Carlyle EDWARDS and Joyce Lloyd Edwards.

No. 462.

Supreme Court of North Carolina.

December 13, 1961.

*788 William Joslin, Raleigh, for plaintiff appellee.

Manning, Fulton & Skinner, Raleigh, for defendant appellants.

RODMAN, Justice.

Determinative of the appeal are the legal conclusions that "the exact location of the five acre Ednabel C. Holder tract is immaterial to a decision of this controversy" because "the general description `being all those portions of tracts Nos. 4 and 5 lying west of Reedy Creek Road as the same is now situated excepting only that 5 acre tract conveyed to Ednabel C. Holder' prevails over the conflicting metes and bounds description' in the deed from Collins and wife to Rogers." If these conclusions are correct, the judgment must be affirmed. To determine that question we must ascertain what property was conveyed by Collins to Rogers.

The court found it was the intent of the parties that Rogers would have those parts of lots 4 and 5 south of the Holder lands, and conforming to that intent, Rogers never claimed to own any part of lot 4 lying north of the Holder lands. The first and fundamental rule to apply in construing deeds is to ascertain the intent of the parties. We said in Franklin v. Faulkner, 248 N.C. 656, 104 S.E.2d 841, 843: "* * * when ascertained, that intent becomes the deed, will, or contract." Following the statement that intent, when ascertained, controls, we said: "It is equally well settled that a general description will not enlarge a specific description when the latter is in fact sufficient to identify the land which it purports to convey. Only when the attempted specific description is ambiguous *789 and uncertain will the general prevail." To support that statement we cited decisions going back nearly three quarters of a century. To those listed we now add Midgett v. Twiford, 120 N.C. 4, 26 S.E. 626; Loan Ass'n v. Bethel, 120 N.C. 344, 27 S.E. 29; Ferguson v. Champion Fibre Co., 182 N.C. 731, 110 S.E. 220, 223, where Walker, J., said: "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." The rule announced is not peculiar to North Carolina. It is of general application. 26 C.J.S. Deeds § 100, pp. 876-877; 16 Am.Jur. 600-601.

The Holder land extends from Reedy Creek Road westwardly to Haley Creek. Plaintiff does not challenge the validity of the deed from Collins to Holders. She insists: When the Holder land is properly located it will be adjacent to lot 3, and the specific description and general description will be in agreement, conveying one tract; but if she is wrong in her location of the Holder land, the deed to Rogers conveyed two tracts, the large area south of the Holder lands and a much smaller area to the north of the Holder lands. The area south of the Holder lands as located by defendants contains 44.77 acres. The area north of the Holder lands as located by defendants contains approximately ten acres.

Since the court based its conclusion that the general description in the deed from Collins to Rogers prevailed over the specific description because "(t)he specific metes and bounds description was highly ambiguous and inaccurate and was inadequate to locate the land" we must look at that description in the light of the testimony, findings of fact, and well-settled principles of law.

What are boundaries is a question of law to be declared by the court. Where they are located is a question of fact. Batson v. Bell, 249 N.C. 718, 107 S.E.2d 562; Jenkins v. Trantham, 244 N.C. 422, 94 S.E.2d 311.

Where a deed gives course and distance to a natural object, the call for the natural object is less apt to be incorrect and will for that reason prevail over course and distance. Batson v. Bell, supra; Wachovia Bank & Trust Co. v. Miller, 243 N.C. 1, 89 S.E.2d 765; Cherry v. Roanoke Tobacco Warehouse Co., 237 N.C. 362, 75 S.E.2d 124. This principle is applicable to descriptions calling for the line of another tract when that line is known and established.

A description contained in a junior conveyance cannot be used to locate the lines called for in a prior conveyance. The location of the lines called for in the prior conveyance is a question of fact to be ascertained from the description there given. Harris v. City of Raleigh, 251 N.C. 313, 111 S.E.2d 329; Coffey v. Greer, 241 N.C. 744, 86 S.E.2d 441; Bostic v. Blanton, 232 N.C. 441, 61 S.E.2d 443; Cornelison v. Hammond, 224 N.C. 757, 32 S.E.2d 326.

To determine, as required by the foregoing rules, the sufficiency of the specific description in the deed from Collins to Rogers, we find: (1) The beginning corner, the intersection of the center lines of Crabtree Creek and Reedy Creek Road, is known and established. (2) Since Reedy Creek Road is a known highway, there is no difficulty about the direction from the beginning corner to the second corner. (3) The termination of this line is "Ednabel C. Holder's southeast corner." Everyone agrees the point referred to is the southeast corner of the lands which Collins had conveyed to his daughter, Mrs. Holder. Where is that point? The Rogers deed says it is "1970 feet more or less" from Crabtree Creek and "about 230 feet" from the south line of tract 3 of the Duke farm. (Emphasis supplied.) Neither of these approximations can be used to fix the point called for. It is necessary to go to the proper source to determine the location of *790 the southeast corner of Mrs. Holder's land. That source is Collins' deed to her.

The deed to Holder says the beginning corner is on the west side of Reedy Creek Road and is indicated by an iron pipe "approximately one-half mile North of the Crabtree Creek Bridge." That approximate distance would, if used as a definite and specific distance, locate the land north of grantor's northern boundary. The deed would be mere color of title because the description would not include lands owned or claimed by grantor. The iron pipe called for has been removed. Do these facts destroy the title which Mrs. Holder acquired, or is she at liberty to show where in fact the pipes were located? The answer would seem to be plain. It is permissible to show where the lines were located when the deed was made. As said by Ashe, J., in Thornburg v. Masten, 88 N.C. 293: "Such particularity in the description of land conveyed or contracted to be conveyed, as will give the court certain and unmistakable information of the land that is meant, is not required, and could rarely even be attained. All that is required is that the land should be described with such certainty that by proof aliunde the description may be fitted to the thing. In almost every case, extraneous proof is requisite and admissible to apply the description to the land meant to be conveyed."

Max Collins, Jr., son of the original grantor, testified that in October or November 1947 he made a survey of the land to be conveyed to Mrs. Holder. This survey was made at the request of his father and brother-in-law. When he made the survey, he chopped and marked certain trees indicating the corners. The south line as he surveyed it "is the line between the large grove of trees and the old field * * * The line out there today is the same line, beginning at the same tree I chopped in 1947." Mrs. Collins, one of the Holder grantors, testified: "I was there when the property sold to Holder was surveyed * * * We had it surveyed before we wrote the deed. That was the first thing we did." True, the deed from Collins to the Holders does not refer to this survey, but that fact does not prevent the parties from showing what they did to locate the land conveyed. John Rogers, son of plaintiff's immediate grantor, likewise testified to the location of the Holder line as pointed out to him by both Collins and his father, saying the southern boundary of this tract was south of a large grove of trees. There was other evidence sufficient to show where the lines were in fact located when the deed was made to the Holders. The evidence offered to locate the Holder land was competent and, if accepted as true, sufficient to establish its location. Meekins v. Miller, 245 N.C. 567, 96 S.E.2d 715. In fact the court seems to have accepted this testimony as true. It found "that said 5 acres included some large shade trees, and the south line extended in an east-west direction along the north line of a field for some distance from the Reedy Creek Road * * *"

When the evidence and the findings of fact are examined, it is apparent, we think, that an erroneous conclusion was reached because the court undertook to locate the southeast corner of the Holder lands by the Rogers', a junior, deed. Had he applied the proper rule, he would have undertaken to locate the Holder lands by applying to its description the parol testimony. Then the approximate distances called for in the deeds would not create difficulty.

The pleadings contain no suggestion that any of the deeds need to be reformed. The only question raised by the pleadings is the ownership of a specific area to be determined by the deeds as presently written. Plaintiff, having the older deed from a common source, acquired title to such property as was conveyed by that deed, but she acquired title to no more than was conveyed by it. Her land, by the express language of her deed, is south of the Holder land. The deed does not purport to convey two tracts, one on the south and the other on the north of the Holder land. *791 Her deed, by express language, excepts the Holder land. The lines of the Holder land must be located before this controversy can be determined. The present owners of the Holder property, if not essential, are certainly proper parties and should be brought in to settle once for all the crucial question here presented. Similarly, plaintiff's cotenant should be made a party. She will not be bound by the ultimate decision unless a party.

New trial.