Ipock v. Gaskins

Walker, J., after stating the ease: It appears plainly from the undisputed facts of the case that the call in the plaintiff’s deeds for the “west edge” of the swamp was a clerical mistake, and was clearly intended for the east edge, the word “west” having inadvertently been substituted for the word “oast” by the draftsman. When this is shown to be the case, it has been held frequently in this and other jurisdictions that the court will itself rectify the error, by applying the call to the true line intended by the parties, when the other calls indicate the intention and the matter is free from any doubt or uncertainty. Person v. Rountree, 2 N. C., 378 (s. c., 1 N. C. (Martin), 1). When passing upon a similar question in Mizzell v. Simmons, 79 N. C., 190, the Court held that where “the mistake is obvious and is fully corrected by the other calls of the deed and the plat annexed, it presents no difficulty, and the courts will construe ‘east’ to mean ‘west,’ to correct a mistake, when the intent of the parties appears, and the means of correcting it are presented,” citing Cooper v. White, 46 N. C., 389; Houser v. Belton, 32 N. C., 358; Campbell v. McArthur, 9 N. C., 33. In the last cited case the Court fully approved this instruction of the court to the jury, “that a mistake in a course or distance should not be permitted to disappoint the intent of the parties, if that intent appeared, and if the means of correcting the mistake are furnished either by a more certain description in the same deed or by reference to another deed containing a more certain description,” and added: “So that I cannot think any difficulty will present itself in ascertaining the land intended to be conveyed by the deed, when recourse is had to the patent. — 679 — Tbe grantor bas referred to this as the means of correcting ¿ny mistake in the description of the land, and of ascertaining what his intent was in making the deed. (5 Wheaton, 359, 362.) Words shall always operate according to the intent of the parties, jf by law they may; and if they cannot operate in one form, they shall operate in that which by law shall effectuate the intention. This is the more just and rational mode of expounding a deed, for, if the intention cannot be ascertained, the rigorous rule is resorted to, from necessity, of taking the deed most strongly against the grantor.” It was held in Houser v. Belton, supra, that where a deed described a corner as being on the- east side of a creek, it is admissible for the party to show, by competent testimony, that the corner was in fact on the west side of the creek; and that when there is a discrepancy between the course and other more certain descriptions in the deed, -such as natural objects, the former must give way, it being so easy to make a mistake in giving the course, and the other calls being more reliable and certain. And in Cooper v. White, supra, Judge Battle stated it to be well settled that a mistake in the course called for in a deed shall not be permitted to disappoint the intent of the parties, if that intent appear- and if the means of correcting the mistake are furnished, either by a more certain description in the same deed or by reference to another deed containing a more certain description, citing Ritter v. Barrett, 20 N. C., 133 (266). The same doctrine was applied in Davidson v. Shuler, 119 N. C., 583, to the correction of what was termed “a slip of the pen” in writing “south” instead of “north,” and in Wiseman v. Green, 127 N. C., 288, where it was held that the court undoubtedly has the right to construe a deed, and in proper cases to correct an inadvertence of the scrivener, “a slip of the pen,” when it plainly appears from the deed itself, so as to conform to the intention of the parties, and in that case “west,” as it was written, was taken to mean “east,” and the calls were accordingly so adjusted. It was said in Kea v. Robeson, 40 N. C., 373, that courts are always desirous of giving effect to instruments according to the intention of the parties, so far as the law will allowso just and reasonable is this rule that it has — 680 — long grown into a maxim, that favorable constructions are put on deeds. Commenting upon the use to be made of a reference by one deed to another, Judge Gaston said, in Bitter v. Barrett, supra: “The very purpose of the reference would seem to be to ascertain with more particularity what it was apprehended might not have been otherwise sufficiently described. They, therefore, declare their intent to convey unto John Sowell the same land which Jacob McLindon sold to Isaac Sowell. If, therefore, in the description of the land thus conveyed there be found any inaccuracy or deficiency, that inaccuracy is corrected and that deficiency supplied the moment we ascertain the true boundaries of Isaac Sowell’s purchase, and these appear upon the face of McLindon’s deed.” In Gudger v. White, 141 N. C., at p. 515, referring to Bitter v. Barrett, we said: “This case was followed by Everitt v. Thomas, 23 N. C., 252, in which Chief Justice Buffin says: ‘We do not doubt that, by a proper reference of one deed to another, the description of the latter may be considered as incorporated into the former, and both be read as one instrument for the purpose of identifying the thing intended to be conveyed.’ He further says that this is especially so when the calls of the two deeds, it turns out, are not inconsistent with each other, and there is a manifest intention by the later deed to convey the whole or a part of the land described in the earlier one. In such a case the reference will be allowed to help an imperfect description, so as to make it conform to the principal intention.” It has been thoroughly established that where one deed refers to another for a description, the latter must be taken as if embodied in the deed referring to it, and the two so construed together that the premises described in the first will pass under the second deed. Gudger v. White, supra; 4 Am. and Eng. Enc. of Law (2 Ed.), 803; Hemphill v. Annis, 119 N. C., 514. In Gudger v. While, supra, we resorted to these rules in the location of a dividing line or boundary between adjoining proprietors of land, and we may appropriately reproduce the language used by us in that case as strongly applicable to the facts of this appeal, as follows: “It is not difficult by reading the deed to reach a satisfactory conclusion as to what the parties meant, — 681 — and we are required by tbe settled canon of construction so to interpret it as to ascertain and effectuate tbe intention of tbe parties. Tbeir meaning, it is true, must be expressed in tbe instrument; but it is proper to seek for a rational purpose in tbe language and provisions of tbe deed and to construe it consistently witb reason and' common sense. If there is any doubt entertained as to tbe real intention, we should reject that interpretation which plainly leads to injustice, and adopt that one which conforms more to tbe presumed meaning, because it does not produce unusual and unjust results. All this is subject, however, to the inflexible rule that the intention must be gathered from the entire instrument, 'after looking,’ as the phrase is, 'at the four corners of it.’ ” The rule thus stated has been more recently approved and adopted by us in several cases decided by this Court. Bryan v. Eason, 147 N. C., 284; Triplett v. Williams, 149 N. C., 394; Acker v. Pridgen, 158 N. C., 338; Highsmith v. Page, ibid., 226, and Beacom v. Amos, ante, 357, and numerous cases cited therein. It must not be supposed that this wholesome rule interferes with the principle that parol evidence is not allowed to contradict or vary a written instrument (Moffitt v. Maness, 102 N. C., 457), for there is no variation from the terms of the deed, but merely a correct ascertainment of them by construing the entire instrument to get at the intent and effectuate it. We do not insert a term not in the deed for one that is there, for there is no process of substitution or alteration. That which renders the deed ambiguous and its meaning obscure, if allowed to stand by itself and considered alone, is merely viewed in the clear light of more certain and trustworthy provisions, and, if found to have been manifestly a mistake, the result of inadvertence, is discarded and not permitted to defeat the real intention of tbe parties, as otherwise expressed in the paper-writing. This is a most reasonable and practical rule, and has the great advantage of being álso a very just one. • Nor do we invade the province of a court of equity by correcting or' reforming tbe instrument, which, of course, works a material change in it, to the extent of making a different contract than the one expressed in the language employed by the parties. We are only saying — 682 — wbat the parties meant by all they have said, neither taking from nor adding to their agreement. The deed corrects itself, so to speak, by its own terms, and the pervading intention of the parties is fulfilled. Applying this principle to our facts, reconciling any apparent discrepancies, and seeking for the true intent in. the deed, we find that the first call in the plaintiff’s deed, after leaving the first corner at the black gum, or Lawson’s corner, is for another physical object, the public highway, known as Pamlico Eoad, and that this road is so situated with its winding course, generally northeast and southwest, that it could not be reached by pursuing that call in the deeds along the west edge of the swamp, but that in order to reach it, it will be necessary to insert a long line, at the north end of the swamp, extending to its west edge, and at the south end another long line not mentioned in the deeds, as the west edge of the swamp does not coincide with or fit into either the call for the black gum, Lawson’s corner, or the one for the Pamlico Eoad, but if you run from the black gum along the east edge of the swamp, it will intersect that road at the point in the Pamlico Eoad designated by the letter 0 in the map, and this will fit into the next call,, “thence north up the road to the post-oak,” and this can be done without any variation required by the substitution of lines not called for in the deeds. So far, this case presents reasons quite as strong and cogent for adopting the east edge of the swamp as the true line as any advanced in the cases we have cited, in support of a similar course taken in them. But plaintiff’s deeds described the land intended to be granted by them as the same, or a part of it, which was conveyed in the deed of James Gaskins to David Gaskins, and by a fair construction of that deed it conveys the same land as is described in the deed from Daniel Gaskins to David Gaskins, that is, they call for the line from the black gum along the east edge of the swamp to the Pamlico Eoad and then up the road to the post-oak. If we should follow literally the calls in the deed from James Gaskins to David Gaskins, the land would be impossible of location, but it is perfectly manifest what the deed means. The word “of” was. evidently intended by the draftsman for “to,” so that when construed by its terms and — 683 — tbe map, showing the different objects in their relation to each other, it conveys a tract of land beginning- at the black gum and running thence with the east edge of the swamp to the Pamlico Road, thence with the road to the post-oak, an admitted corner, and thence back to the beginning, containing 125 acres. This is in exact harmony with what is written in the preceding deed of Daniel. Gaskins to James Gaskins, who conveyed to David Gaskins,, and it also agrees with what plaintiff’s own witness, Henry Gaskins, son of David Gaskins, said about it, that the call in the deed from James Gaskins to his father, David Gaskins, “is evidently. meant for the east side of the swamp to the Pamlico Road,” and the call, as it appears in the deed, that is, running (from the black gum) with the edge of the swamp on the east side of Pamlico Road to a post-oak, was also “evidently a mistake of the draftsman — a mistake somewhere,” and further, he stated that those under whom plaintiff claims never asserted ownership to any land on the south side or east side of the Pamlico Road. It may be that the mistake was committed in copying the original deed on the registration book, as it appears that the registry was used and not the original. However it occurred, the deeds and map all show that the intended line was the east edge of the swamp. In Houser v. Bolton, supra, & corner was described as being on the east side of a creek, when the circumstances showed it should have been on the west side, and it was held competent to show the mistake by competent proof, though it be parol testimony, citing the leading case of Person v. Rountree, supra, where south was read for north, because of a manifest inadvertence of the draftsman, by which the mistake occurred. The mistake in our ease is obvious, and it should not, therefore, be allowed to prejudice the right of the defendants. Bradford v. Hill, 2 N. C., 30. The case of Johnson v. Bowlware, 149 Mo., 451, was much like this one, and it was there held that, “Where a part of a description in a deed is inconsistent with the other parts, if sufficient remains from which the intention of the parties can be ascertained, that part which is repugnant may be rejected altogether. And this may be done in an action of ejectment. And if it is clear that the word 'west’ — a call for the course— — 684 — was by mistake of tbe scrivener written for ‘east/ in a description which also calls for ‘the place of beginning’ in the same connection, that word will be rejected as repugnant.” See Thatcher v. Howland, 2 Metcalf (Mass.), 41; Warden v. Harris, 47 S. W., 834. But the court instructed the jury that notwithstanding they found that the line ran with the east instead of the west edge of the swamp, the plaintiff’s deed was color of title, and if he and those under whom he claimed had been in adverse j>ossession for the time required to ripen title, he was entitled to recover. It was error to submit the question of the boundary, in this case, to the jury. What is a boundary is a question of law; where it is, a question of fact; but there was no dispute as to where it is, the only question being what it is, whether the east or west edge of the swamp, either of these two lines being easily located. The error, though, was cured by the verdict of the jury. Vaughan v. Exum, ante, 492; Hardy v. Ward, 150 N. C., 385. Color of title cannot extend beyond the boundaries of the deed constituting it (Lumber Co. v. Swain, ante, 566), and the land must be located within and embraced by the boundaries. Marshall v. Corbett, 137 N. C., 555. We suppose the court thought that the mistaken call for the west side of the swamp was sufficient to show good faith, and, therefore, could be considered as colorable title, under the accepted definition that color of title is that which in appearance is title, but which in reality is no title at all. Knight v. Grim, 110 Va., 400. The particular instrument does not depend upon the belief of the claimant as to its sufficiency to confer title (Reddick v. Leggett, 7 N. C., 539; Rogers v. Mabee, 15 N. C., 180), but on its professing to pass a title, which it fails to do, either from want of title in the person making it or from the defective mode of conveyance employed, but it must not be so obviously defective that no man of ordinary capacity could be misled by it. Tate v. Southard, 10 N. C., 119; Dobson v. Murphy, 18 N. C., 586; McConnell v. McConnell, 64 N. C., at p. 344. But adverse possession, nevertheless, cannot be extended beyond the boundaries fixed by the deed itself and its own language. The plaintiff, however, got the — 685 — full benefit of the deeds as color, and cannot complain of this instruction. The jury found against him as to the fact of adverse possession, and so far, therefore, as his title depends thereon, and not upon the alleged estoppel, he has lost upon the issue of fact under a charge free from error in that respect. There is also evidence that plaintiff acted in recognition of the defendant’s title, showing that he knew where was the true boundary line of the land. There surely was sufficient and strong evidence to carry the case to the jury upon the question of boundary, if that was the proper way to try it. A careful examination of the case leads us to conclude that no error was committed at the trial. No error.