Lee v. McDonald

DeNNY, J. The defendants except and assign as error the refusal of the court to charge the jury in substance as follows: That a particular description in a deed by metes and bounds which is unambiguous, will control over a reference to lots when there is a discrepancy or ambiguity between the two descriptions. The intent of a grantor in a deed, like that of a testator in a will, must be gathered from its four corners, and it is the duty of the court to decide as a matter of law, what the boundaries are in a deed, and for the jury to determine where they are actually located. Gudger v. White, 141 N.C. 507, 54 S.E. 386; Von Herff v. Richardson, 192 N.C. 595, 135 S.E. 533; Greer v. Hayes, 216 N.C. 396, 5 S.E. 2d 169; 26 C.J.S. 357. Ordinarily if a description by metes and bounds does not embrace the locus in quo, but such description is followed by the statement “including” lot or lots thus and so, when such lot or lots in their entirety are not embraced in the description, such reference should not be allowed to control and thereby enlarge the boundaries unless it is clear the grantor intended to convey the additional land not embraced in the description by metes and bounds. Hudson v. Underwood, 229 N.C. 273, 49 S.E. 2d 508; Bailey v. Hayman, 218 N.C. 175, 10 S.E. 2d 667; Von Herff v. Richardson, supra; Ferguson v. Fibre Co., 182 N.C. 731, 110 S.E. 220; Williams v. Bailey, 178 N.C. 630, 101 S.E. 105; Potter v. Bonner, 174 N.C. 20, 93 S.E. 370; Lumber Co. v. McGowan, 168 N.C. 86, 83 S.E. 16; Midgett v. Twiford, 120 N.C. 4, 26 S.E. 626; Cox v. McGowan, 116 N.C. 131, 21 S.E. 108; Carter v. White, 101 N.C. 30, 7 S.E. 473. In Cox v. McGowan, supra, Avery, J., said: “The parties are presumed to have intended to be governed by the description which they made specific, when it is in conflict with another.” It is only when the specific description is ambiguous, or insufficient, or there is a reference to a fuller or more accurate description, that the general description is allowed to control. Lewis v. Furr, 228 N. C. 89, 44 S.E. 2d 604; Crews v. Crews, 210 N.C. 217, 186 S.E. 156; Quelch v. Futch, 172 N.C. 316, 90 S.E. 259; Ritter v. Barrett, 20 N.C. 266 (133); Campbell v. McArthur, 9 N.C. 33, 18 C.J. 284. We think an examination of the original deeds in plaintiff’s chain of title reveals that the grantors therein only intended to convey the Barrett Hotel property. The deed from ’William McCormick, assignee of the estate of Samuel Barrett, to L. Grimm expressly so states and contains no description by metes and bounds, neither does it refer to any lot number; and in the deed from Richardson to Grimm hereinabove set forth, it will be noted that the grantor describes the property as adjoining the *522 lands of I, M. Monger and tbe Courthouse Square, in the Town of Carthage, and known as the Barrett Hotel lot, and bounded as follows. Then follows a description by metes and bounds, which description according to the plaintiff’s evidence includes no part of the land in controversy. Then after the reference to Lots 37 and 38, this significant statement is added: “The foregoing description includes the Barrett Hotel, outhouses, garden, yards and all appurtenances and belongings thereto, the same being in the Town of Carthage.” Moreover, it appears from the plaintiff’s evidence that J. M. Monger lived in a residence located on that part of Lot No. 37, shown on Exhibit A, as “LeRoy Lee property (Page Building).” It further appeared in the quitclaim deed executed by A. H. McNeill, a predecessor in title to plaintiff, to D. A. McDonald, that J. M. Monger had allotted to him as a homestead all of Lots 43 and 44 and a portion of Lots 37 and 38. It is clear that A. II. McNeill’s record title must have been superior to all of Lots 37 and 38 to the record title of J. M.. Monger, from whom the defendants claim title, if the plaintiff’s record title is superior to that of the defendants. If A. H. McNeill claimed title to all of Lots 37 and 38 at that time, it is difficult to understand why he released all of Lots 43 and 44 and a portion of Lots 37 and 38 to D. A. McDonald, from liens he held against McDonald’s predecessor in title, J. M. Monger. Certainly if A. PI. McNeill owned all of Lots 37 and 38, as contended by the plaintiff, his liens against Monger would not have been a lien against his own property. Furthermore, if all of these lots belonged to McNeill, or his predecessor in title, why was a portion of them allotted to J. M. Monger as a part of his homestead? We think on this record, the defendants have shown a superior record title to the property in dispute. The defendants also except to the refusal of his Honor to charge the jury that since they hold the superior record title to the land in dispute, the plaintiff cannot recover unless he shows by the greater weight of the evidence that he has obtained title thereto by adverse possession or that his predecessors in title have done so. The exception is well taken, and must be upheld. Whether the plaintiff and those under whom he claims have obtained title to the land in dispute by the adverse possession thereof for twenty years, or by adverse possession under color of title for seven years, is a question about which we express no opinion. That is a question for the jury on appropriate issues and under proper instructions. But for the reasons herein pointed out, the defendants are entitled to a new trial, and it is so ordered. New trial.