Lewis v. . Furr

"WinboRne, J. Appellant presents for decision on this appeal four-questions ; in three of which, in the view we take of the case, he is interested : First: Did the court err in holding that the pleadings raised no issue of fact to he submitted to the jury ? The question raised is one of law,— the interpretation of the description in the deed from Ida Lewis and husband, R. M. Lewis, to D. Y. Furr. As presented here, that is a question of law for the court, and not an issue of fact for the jury. Second: Does the description in the deed above, set out in the foregoing statement of facts, convey the interest of Ida Lewis in the dower tract? In other words, is the particular description therein enlarged by the language which appears immediately thereafter? The court below answered in the negative, and with that ruling we are in accord. The specific description in a deed, when definite and clear, is not to be enlarged by a reference to the source of title, such as “being the same property conveyed in deed,” etc., because “when connected with the specific description, it can only be considered as an identification of the land described in the boundary,” Midgett v. Twiford, 120 N. C., 4, 26 S. E., 626, or “as a further means of locating the property,” Loan Assn. v. Bethel, 120 N. C., 344, 27 S. E., 29. *93 It is only when the specific description is ambiguous, or insufficient, or the reference is to a fuller and more accurate description, that the general clause is allowed to control or is given significance in determining the boundaries. IS C. J., 284. Campbell v. McArthur, 9 N. C., 33; Ritter v. Barrett, 20 N. C., 266; Quelch v. Futch, 172 N. C., 316, 90 S. E., 259; Crews v. Crews, 210 N. C., 217, 186 S. E., 156. The rule is that where there is a particular and a general description in a deed, the particular description prevails over the general. Carter v. White, 101 N. C., 30, 7 S. E., 473; Cox v. McGowan, 116 N. C., 131, 21 S. E., 108; Midgett v. Twiford, supra; Loan Assn. v. Bethel, supra; Johnston v. Case, 131 N. C., 491, 42 S. E., 957; Lumber Co. v. McGowan, 168 N. C., 86, 83 S. E., 8; Potter v. Bonner, 174 N. C., 20, 93 S. E., 370; Bailey v. Hayman, 218 N. C., 175, 10 S. E. (2d), 667. The case of Midgett v. Twiford, supra, is not unlike the case in hand. The holding there, pertinent here, is set out in this headnote: “In a deed by one of four devisees to a stranger, the specific description of the land by metes and bounds was immediately followed by the words, Tor the one-fourth part of all the land that my father M. died seized and possessed of’: Held, that the addendum to the description did not control the latter so as to create a tenancy in common in other land devised by the deceased.” To like effect is the holding in Loan Assn. v. Bethel, supra. There, to the description of a lot, by metes and bounds, in a deed, were added these words: “This lot is known as lot No. 13 . . . and upon this lot the Hotel Bethel stands,” and is appeared that the hotel building extended over the line and covered a part of lot No. 12. And the court held that no part of lot No. 12 passed by the deed, “the hotel being mentioned only as a means of locating lot No. 13.” These rules of interpretation are applicable to the deed in question in the present action. The words “the same being . . .” patently refer only to the tract of land particularly described, as a further means of locating it. Also, it is significant that the consideration expressed in the deed, $2,721.46, is the exact amount of the valuation placed upon the 65% acre tract plus the owelty when allotted to Ida Lewis in the partition proceeding, — $2,721.46. And we find no error in the ruling of the court below in holding that the description in the deed covers only the 65% acre tract, which is described by metes and bounds. Hence, under the deed from Ida Lewis and her husband to D. V. Furr, Furr has no claim to the moneys in controversy. Third: This question relates to the refusal of the court to grant defendant’s motion for judgment of nonsuit. However, in his brief appellant concedes that this is controlled largely by the answer to the question relating to the description. *94 Fourth: The questions as to whether the purported copy of the will of Ida Lewis and of the proceedings had in the county court of Hays County, Texas, in connection with the probate thereof, have been duly certified and authenticated, and as to whether the execution of the purported will and the purported probate thereof in the State of Texas are in conformity with the statutes of North Carolina, are matters in which appellant is no longer concerned. It is appropriate to say, however, (1) that the laws of Texas, of which we take judicial notice, G. S., 8-4, provide that “the county court shall have general jurisdiction of a probate court,” and “shall probate wills, grant letters testamentary . . .,” etc., and provides the procedure for probating wills.” Revised Civil Statutes of 1925 of Texas, Title 54. (2) That the copy of the purported will of Ida Lewis appears to have been executed with two witnesses and proven by affidavit of one in conformity with the provisions of our statute, G. S., 31-27, and (3) that the will was probated in the county court of the County of Hays in the State of Texas, in accordance with the laws of Texas. Therefore, when duly certified and authenticated by the clerk of the county court of Hays County a copy of the will and of the proceedings had in connection with probate thereof, “may be allowed, filed and recorded in the same manner as if the original and not a copy had been produced, proven and allowed” before the clerk of the Superior Court of Cabarrus County, North Carolina. However, the record on this appeal fails to show proper authentication of the copy of the will and of the proceedings in connection with the probate thereof in accordance with Federal Rules. U.S.C.A. Title 28, Sec. 688. See also G. S., Appendix III. This may be done nunc pro tunc. Coble v. Coble, 227 N. C., 547, 42 S. E. (2d), 898. The judgment below will be modified in accordance with this opinion, and as so modified is here affirmed. Modified and affirmed.