Benton v. Montgomery Lumber Co.

Ajdams, J. The appellant’s exceptions to the exclusion of evidence must be overruled for the reason that the questions were framed so as to call for answers which would necessarily have embodied a mixed finding of law and fact. Whether the thirty-acre tract or any other was specifically described in the deed was not exclusively a question of fact which the surveyor could determine. What the boundaries are is a matter of law; where they are is a question of fact. Lumber Co. v. Bernhardt, 162 N. C., 460. *365 The exception chiefly relied on is that which was taken to the charge given the jury; but the significance of this instruction may readily be seen by reference to the evidence and the plat. The question on which the controversy turned was whether the thirty-acre tract is a part of the land “bounded on the south by the lands of Calvin Benton, on the west by Tar River, on the north by W. J. Ross and J. S. Ross, and on the east by the lands of B. H. Headen?” It is not denied that these boundaries include a part of the Coppedge land and the surveyor testified that they would not touch the lands of ~W. J. Ross unless they embraced the thirty acres in dispute. His Honor held as legal inference that the land of 'W. J. Ross was a part of the northern boundary; and if the jury accepted the undisputed evidence it necessarily followed that the thirty-acre tract was included in the description. True, this is not one of the tracts particularly set out in the latter part of the description, but this fact does not necessarily impair the force of the defendant’s contention. The proposition does not call for elaborate discussion. In the construction of deeds these principles seem to be settled: (1) The entire deed must be considered and such construction of particular clauses must be adopted as will effectuate the intention of the parties; (2) such construction will be adopted as, if possible, will give effect to every part; (3) if terms are contradictory the first in order will be given effect to the exclusion of the last; (4) when language is of doubtful meaning it will be given such construction as is most favorable to the grantee; (5) descriptive specifications cannot prevail over a known and controlling call; (6) a further description will not defeat a preceding perfect description which identifies the property conveyed. Mayo v. Blount, 23 N. C., 283; Outlaw v. Gray, 163 N. C., 325; R. R. v. Carpenter, 165 N. C., 465; Lumber Co. v. Lumber Co., 169 N. C., 80, 94; Miller v. Johnston, 173 N. C., 62. Considered in the light of these principles the trial in our opinion was free from error. No error.