Coble v. Barringer

• Decision Date: 19 April 1916
• Docket Number: 387.
• Citation: 88 S.E. 518,171 N.C. 445
• Parties: v. BARRINGER. COBLE
• Court: North Carolina Supreme Court

88 S.E. 518

171 N.C. 445

COBLE v. BARRINGER.

No. 387.

Supreme Court of North Carolina

April 19, 1916

Appeal from Superior Court, Guilford County; Cline, Judge.

Action by A. A. Coble against John Barringer. From a judgment for defendant, plaintiff appeals. No error.

Where there is a question of construction of a deed conveying all right, title, and interest, the covenants may be considered to ascertain what is conveyed.

The action was brought to recover damages for an alleged fraud in the preparation and execution of a deed for land, and on account of failure of the title agreed to be conveyed and warranted. On February 28, 1913, defendants conveyed to plaintiff "all their right, title, and interest in and to two tracts or parcels of land" which are described in the complaint, with the following habendum and covenant of warranty:

"To have and to hold the aforesaid tract or parcel of land and all appurtenances thereunto belonging to him, the said A A. Coble, and his heirs forever, to his and their only use and behoof. And the said John A. Barringer, one of the grantors herein, doth covenant that he is seised of the interest conveyed in this deed, evidenced by a deed made to him by Cyrus Clapp and others, and recorded in Book 245 page 105, in the register of deeds office, in fee simple and that he has a right to convey such interest to the grantee herein in fee simple, and that he will warrant and defend the title to the said interest to the grantee herein against all claims whatsoever."

The allegation of fraud is that, instead of conveying only the defendant's "right, title, and interest in and to the land," the male defendant represented to plaintiff that he was at the time the owner in fee of a five-ninth interest in the land, and that it was agreed that said defendant, who wrote the deed, should so draw the same as to state his interest specifically, and to convey that interest with a corresponding covenant of warranty, and that the deed was written by said defendant, not according to the agreement of the parties, but falsely and fraudulently, so as to convey only the right, title, and interest of the defendants. The jury found against the plaintiff as to the fraud, under issues submitted to them by the court, which, with the answers thereto, are as follows:

"(1) Did the defendant represent to the plaintiff at the time of the execution of the deed from the defendant to the plaintiff that he (the defendant) was the owner of five-ninths interest in the lands described in the said deed? Answer: No.

(2) Did the defendant at the time of the delivery of said deed mislead and deceive the plaintiff by words or conduct which led the plaintiff to believe that he (defendant) had inserted in the deed words which represented that defendant was the owner of and warranted the title to a five-ninth interest in the land? Answer: No.

(3) Was there at the time of the execution of the said deed an outstanding and paramount title to said land in the University of North Carolina? Answer: Yes.

(4) What amount, if any, is the plaintiff entitled to recover of the defendant? Answer: Nothing."

The male defendant acquired whatever title he had from Cyrus Clapp and others, who were then supposed to be the heirs of Charles Dick, a former slave, who owned the land. It turned out that they were not the legal heirs of Charles Dick, but that he died without any heirs, and the land escheated to the university of the state. Cyrus Clapp and others had commenced a special proceeding against the other supposed heirs of Charles Dick, to sell the land for partition. The university intervened in that proceeding, and the plaintiff was made a party thereto. It all resulted in a compromise which was entered in that case, and under which plaintiff was allowed $349.92 out of the proceeds of sale, and he is now suing for the difference between that amount and what he paid the defendant for the land, viz., $500.08; the amount paid to the defendant as the consideration of his deed to the plaintiff being $850. The defendants were not parties to the proceeding, but there was evidence that they were notified by the plaintiff of its pendency and were requested by him to come in and defend the title against the adverse claim of the university, and they refused to do so. The deed from Cyrus Clapp and others to the male defendant conveyed, for the consideration of $600, "all their right, title, and interest in and to the two tracts of land," with this habendum and covenant of warranty:

"To have and to hold the aforesaid tracts or parcels of land and all privileges and appurtenances thereunto belonging; and the said parties of the first part do covenant that they are seised of said premises in fee simple and have the right to convey the same in fee simple, that the same are free from incumbrances, and that they will warrant and defend the said title to the same against the claims of all persons whatsoever."

Judgment was entered for the defendant upon the verdict, and the plaintiff appealed.

Jerome & Jerome, of Greensboro, for appellant.

R. C. Strudwick, of Greensboro, for appellee.

WALKER, J. (after stating the facts as above).

First. We hear and determine a case here according to the theory upon which it was tried in the court below. Allen v. Railroad Co., 119 N.C. 710, 25 S.E. 787; Hendon v. Railroad Co., 127 N.C. 110, 37 S.

E. 155; State v. McWhirter, 141 N.C. 809, 53 S.E. 734; Warren v. Susman, 168 N.C. 457, 84 S.E. 760. In Allen v. Railroad, supra, it was said by the court that:

"While we are not bound by an erroneous admission of a proposition of law, we must have respect to the manner in which parties present and try their cases."

It is manifest, we think, that the plaintiff elected to base his right to a recovery and to stake his fortune upon the allegation of fraud. In other words, his idea was that, if there was this alleged fraudulent conduct, and the deed should be so reformed as to correspond with the true agreement, there would be a breach of the covenants of seisin and warranty and right to convey. The case was tried on the issues as to the fraud, and, having lost on his chosen ground, the plaintiff must abide by the result. No issue as to the covenant and its breach was tendered or submitted, but only the issues as to the fraud and the outstanding title in the university.

Second. But, if an issue as to the covenant and its breach had been submitted, we are of the opinion that the result would have been the same. Cyrus Clapp and others conveyed to the defendant, John A. Barringer, not the land or a good and indefeasible title therein, but only his "right, title, and interest in the land." They conveyed what they had to convey, and nothing more. This was not enlarged or changed into a conveyance of the land itself by the covenants of seisin and warranty, though general in character. Chief Justice Shaw said of such a deed in Blanchard v. Brooks, 12 Pick. (Mass.) 47, 67:

"The grant in the deed is of all his right, title, and interest in the land, and not of the land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was all his right, title, and interest. It was equivalent to a warranty of the estate he then held or was seised of, and must be confined to estate vested. A conveyance of all the right, title, and interest in the lands is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the conveyance; but it passes no estate which is not then possessed by the party. Brown v. Jackson, 3 Wheat. 452 ."

The case of Allen v. Holton, 20 Pick. (Mass.) 458, strongly supports the same view. It was there held that:

"In the case of a deed conveying 'all my right, title, and interest in and unto the ferry called and known by the name of Tiffany's ferry, and the boat which I built and now use in carrying on the ferry, and all the estate, land, and buildings standing thereon, as the same is now occupied and improved by me,' with covenants of ownership, general warranty, etc., the deed purported to convey merely such right as the grantor had in the land, and that the covenants were qualified and limited by the grant."

The same question was presented in Sweet v. Brown, 12 Metc. (53 Mass.) 175, 45 Am. Dec. 243, where "the right, title, and interest" only were conveyed, and Justice Wilde said (12 Metc. [ Mass.] 177, 45 Am. Dec. 243):

"The warranty must be taken in a limited sense. It must be restricted to his title and interest. The covenant here attached to the estate and interest conveyed, and is not a general covenant of warranty of the whole parcel, particularly described by metes and bounds. Such construction will reconcile all parts of the deed, and give effect to each. The question now presented is not a new one, but has been directly decided."

We have cited the above authorities because the plaintiff has relied upon three cases, one of which was decided in the same court as those above mentioned. Hubbard v. Apthorp, 3 Cush. (57 Mass.) 419; Mills v. Catlin, 22 Vt. 98; Lull v. Stone, 37 Ill. 224. There is no conflict, though, between these cases, when properly considered with reference to their special facts and those which support our view. In Hubbard v. Aphthorp, supra, there was a conveyance of the land with definite boundaries, but these words were added, however, "meaning and intending by this deed to convey all my right, title, and interest therein." The court said that:

"The construction of a deed is to be such, if possible, as to give effect to the intentions of the

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