Tadlock v. . Mizell

BbogdeN, J. Does the conveyance, by deed, of “a certain house or tenement” include the land upon .which said house is situate? The identical question was involved in the case of Broadhurst v. Mewborn, 171 N. C., 402. The Court said: “The devise of a ‘house,’ when referring, as in this case, to the dwelling-house of the owner, has been held the equivalent of the word messuage, and, in the absence of some term or clause restrictive of its meaning, it is said to convey the lot on which the dwelling is situate, together with the outbuildings customarily used by the owner as a part of his residence.” To the same effect is Wise v. Wheeler, 28 N. C., 196. The language of the Court is as follows: “We think his Honor was correct in his decision, as to the construction of the deed. The court was called on by the plaintiff’s counsel, to put a construction on it. By a conveyance of the store-house and the other houses, the lot upon which they stood was also conveyed, as there is nothing in the deed to control the description, and exclude the lot; and because the deed does convey all of the grantor’s property, of every kind.” In the Wise case, supra, the language was as follows: “The store-house wherein Wheeler had a store, now occupied by him as a post office, with the outhouse and office adjoining.'” The Supreme Court of Appeals of West Virginia referred to the question in State v. Board of Education, 76 S. E., 127, quoting with approval Devlin on Deeds, section 1200, as follows: “Courts have frequently decided that a conveyance of a building or barn, used as a term of description, will convey the land on which the building or structure is erected.” It has been further held that “a grant of a house includes land under it.” Hawkins v. Wilson, 1 W. Va., 117. Also in Gidley v. Lovenberg, 79 S. W., 835, the Court of Appeals of Texas said: “That the term ‘buildings’ or ‘houses’ include the real estate on which they are situate, unless the general meaning of the terms is modified by the language of the context, has been decided.” Cassiano v. Ursuline Academy, 64 Texas, 675. It has been held that the conveyance of “a certain tenement, being one-half of a corn-mill, with all privileges and appurtenances” includes the land upon which the building stands as well as water privileges. Gibson v. Brockway, 8 N. H., 465. See note 15 L. R. A., p. 652. The town of Windsor contends that the condition in the warranty clause of the deed to the effect that the grantor would “warrant and defend *476 the title to said house or tenement (but not the land upon which it is situated)/’ indicates an intention on the part of the grantor to exclude the land. We do not concur in this construction. The conveyance has all the indicia of a formal conveyance of real estate. It is familiar learning that such formality is neither required nor usual in sales of personal property. The words of the warranty clause “but not the land upon which it is situated” are placed in parentheses, and, as we construe them, constituted a declaration upon the part of the grantor that be did not warrant the title to the land because the land was situated in a public street of the town of Windsor. It is to be observed that at the time the deed was made and possession taken thereunder by. the grantee, that there was no statute of limitations barring the right to acquire title to a public lot, street, lane, alley, square or other public way of any kind by reason of any occupancy thereof. Such a statute of limitations was enacted on 3 March, 1891, as will appear by reference to Public Laws 1891, chapter 224, now C. S., 435. Therefore, the grantee and those claiming under him were in possession of the property for thirty-five years prior to the passage of the statute of limitations. There was sufficient evidence of adverse possession to be submitted to the jury and the verdict of the jury, upon the record, is determinative of the controversy. No error.