Quelch v. Futch

• Decision Date: 25 October 1916
• Docket Number: (No. 290.)
• Citation: 90 S.E. 259
• Parties: QUELCH et al. v. FUTCH.
• Court: North Carolina Supreme Court

(172 N.C. 316)

90 S.E. 259

QUELCH et al.

v.FUTCH.

(No. 290.)

Supreme Court of North Carolina.

Oct. 25, 1916.

Appeal from Superior Court, New Hanover County; Peebles, Judge.

Action by J. B. Quelch and others against D. K. Futch. Plaintiffs submitted to a nonsuit, and appeal. Nonsuit set aside, and new trial granted.

This is a civil action to recover a tract of land. Upon an intimation from the court that he would charge the jury that a certain deed did not convey the land described in complaint, plaintiff submitted to a nonsuit, and appealed.

Herbert McClammy and Kenan & Wright, all of Wilmington, for appellants.

John D. Bellamy, Walter P. Gafford, and E. K. Bryan, all of Wilmington, for appellee.

BROWN, J. Plaintiffs claim title under deed in fee in due form dated May 14, 1889, executed by D. T. Cronly to John B. Quelch. After the premises of the deed, which is in the usual form of a bargain and sale, follows a specific description of the tract of land as follows:

"Beginning on the east side of the W. & W. R. R. at a culvert."

Then follows a description by metes and bounds; then the habendum and tenendum, in the usual form, to John B. Quelch and his heirs; then follows the usual covenant of warranty. Immediately following that the deed contains this general description of the land:

"The tract of land hereby conveyed being the same that was deeded by Thomas R. Williams and wife to R. L. Kirkwood, assignee of D. D. Gibson, and which is registered in the records of New Hanover county in Book BBBB, pages 653 and 654, the same said to contain 700 acres, more or less, and which tract was afterwards conveyed by deed bearing date the 13th day of May, 1889, from the said R. L. Kirkwood, assignee, to the party of the first part of these presents."

It is in evidence that the first or specific description by metes and bounds does not cover the land described in the complaint. It is also in evidence that the description in the deeds from Thomas R. Williams to R. L. Kirkwood and from Kirkwood to Cronly, (referred to in the deed from Cronly to Quelch) does cover and include the tract of land described in the complaint. These deeds were offered in evidence by plaintiff.

The court intimated that he would hold that the specific description in the deed from Cronly controlled the general description, and upon that intimation the plaintiff took a nonsuit. The intimated ruling of the court was vital to plaintiffs' recovery, and therefore they had the right to submit to a nonsuit and appeal.

We have in the deed in question a description by metes and bounds in which the land in controversy is not conveyed, and also a description which refers to another deed duly recorded by book and page, which gives a definite description covering the land in controversy.

It must be admitted that, if the first or specific description entirely is eliminated from the deed, according to the evidence, the second or general description is sufficient, and covers the land described in the complaint. It matters not that the last description follows the warranty. The whole deed must be so construed as to give effect to the plain intent of the grantor, and the parts of the deed will be transposed if necessary. Triplett v. Williams, 149 N. C. 394, 63 S. E. 79, 24 L. R. A. (N. S.) 514; 13 Cyc. 627.

The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that would aid the description. Every part of a deed ought, if possible, take effect, and every word to operate.

A reference to another deed may control a particular description; for the deed referred to for purposes of description becomes a part of the deed that calls for it. 13 Cyc. 632; Brown v. Rickard, 107 N. C. 639. 12 S. E. 570; Everitt v. Thomas, 23...