Carr v. . Jimmerson

Per Curiam. The Uniform Declaratory Judgment Act (N. C. Code, 1935 [Michie], sec. 628[2]), is as follows: “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations, whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.” Section 628 (b) is as follows: “Any person interested under a deed, will, written contract, or other writings constituting a contract, or whose rights, status, or other legal relations are affected by a statute, municipal ordinance, contract, or franchise, may have determined any question of *573 construction or validity arising under the instrument, statute, ordinance, contract, or franchise, and obtain a declaration of rights, status, or other legal relations thereunder. A contract may be construed either before or after there has been a breach thereof.” Allison v. Sharp, 209 N. C., 477. This action or proceeding is maintainable under the Uniform Declaratory Judgment Act, as above set forth. It is well settled that the language used in the entire instrument and setting must be considered to ascertain the intention of the makers. If possible, some effect must be given to every word of a deed and all of its provisions harmonized. The court below held that the language used: “Does not manifest a clear meaning and intention to exclude the said M. B. Jimmerson and her heirs at law from the heirs of said Edward Carr, Sr., in so far as the land being conveyed was concerned and that the title conveyed thereby to Edward Carr, Sr., was a fee simple title.” We think this construction of the deed correct. The meaning of the language in the deed in controversy, in the granting clause: “Except as to M. B. Jim-merson” and “except as to M. B. Jimmerson and assigns,” in the haben-dum clause, is vague, uncertain, and ambiguous, and we cannot give it the construction contended for by plaintiffs, petitioners. The judgment of the court below is Affirmed.