Spencer v. . Jones

Walker, J., after stating the case: The only question raised and argued before us is whether the presiding judge was right in holding that the warranty as to the covenantor,"W. H. Jones, was a general' one, and not special, as contended by the defendants, there being no breach if it was special. We concur with his Honor that it is a general warranty. If this is not the true meaning of it, but it was intended to extend the special or restrictive clause to both of the parties, William H. Jones and B. B. Saunderson, it was idle to use the last words of the covenant confining its operation to Saunderson, as without them the clause would have that meaning, and, besides, the use of the words contravene any such intention. Nor can it be successfully argued that the only warranty intended was a special one by B. B. Saunderson, and that W. H. Jones was not embraced by the warranty at all. The language forbids any such construction, because the words are in the plural number, viz., “they will warrant and defend the said title to the same against the claims of all persons whomsoever,” which is a general warranty, and then.comes the restrictive clause reducing it to a special warranty as to * Saunderson. It is somewhat awkwardly expressed, but with sufficient certainty to gather the meaning of the parties from a consideration of the entire deed, which we are enjoined to do. Gudger v. White, 141 N. C., 513; Triplett v. Williams, 149 N. C., 394; Beacom v. Amos, 161 N. C., 357. This doctrine applies to a covenant as to other contracts, and the intention of the parties, if discernible, will control in determining its meaning, which should be gathered from the entire instrument. 11 Cyc., 1051; A. K. and N. Railroad Co. v. McKinney, 124 Ga., 929; s. c., 6 L. R. A. (N. S.), 436; Empire Bridge Co. v. Larkin Soap Co., 109 N. Y. Suppl., 1062; Godfrey v. Hampton, 127 S. W., 626. What *293 was clearly meant in tbis case is that tbe words restrictive of the general warranty should apply only to the Saundersons, for otherwise the first and last parts of the covenant of warranty cannot be reconciled. No error.