Troy & North Carolina Gold Mining Co. v. Snow Lumber Co.

• Decision Date: 01 December 1915
• Docket Number: 483.
• Citation: 87 S.E. 40,170 N.C. 273
• Parties: TROY & NORTH CAROLINA GOLD MINING CO. v. SNOW LUMBER CO. ET AL.
• Court: North Carolina Supreme Court

87 S.E. 40

170 N.C. 273

TROY & NORTH CAROLINA GOLD MINING CO. v. SNOW LUMBER CO. ET AL.

No. 483.

Supreme Court of North Carolina

December 1, 1915

Appeal from Superior Court, Montgomery County; Shaw, Judge.

Action by the Troy & North Carolina Gold Mining Company against the Snow Lumber Company and others. From an order overruling demurrer to the complaint, defendants appeal. Affirmed.

Action to appoint new trustees to succeed those deceased held not a condition precedent to a suit to enforce the trust against the heirs of those who had died, where the appointment of new trustees was part of the relief prayed.

Plaintiff alleges in the complaint that, on August 1, 1866, James Crump, by deed duly executed, and registered, conveyed to it but by the name of the Troy, N.Y. & North Carolina Gold Mining Company, four tracts of land in Montgomery county this state, which are fully described in the deed, which was made to Charles Eddie and eight others, trustees of the Troy N.Y. & North Carolina Gold Mining Company, as appears by the premises of the deed, and in the habendum as follows:

"To have and to hold the above-described tracts of land to them, the above-mentioned trustees, their heirs and assigns forever."

It is further alleged that the name of the company, as it appears in the deed, was inserted by inadvertence and the mutual mistake of the parties, and the draftsman of the deed, and it was intended to stand for and be the name of the plaintiff and should be considered as such, as at the time there was no corporation having the name of the Troy, N.Y. & North Carolina Gold Mining Company, the only company having a name at all like that one being the plaintiff in this action, and that it was the intention of the parties to the deed to convey the land to said trustees, to be held by them for this plaintiff, and they acted as such for plaintiff in taking the deed, and if said intention is not fairly expressed in said deed, the statement thereof was omitted by the mutual mistake of the parties. It is also alleged that the trustees are all dead and their heirs or devisees are unknown to the plaintiff, except four of them, who have been made parties, as defendants to this action, and those who are unknown have been brought in by publication, and still others who reside in this state have been personally served with process. The plaintiff alleges that the legal effect of the deed is to vest the title to the land in the plaintiff, but if this is not so, plaintiff is entitled to have new trustees appointed and a conveyance of the legal title ordered by the court. It is further alleged that defendants are in possession of the land and unlawfully withhold the same from the plaintiff, and have wrongfully cut valuable timber therefrom, to plaintiff's damage, and it prays for general and special relief. Defendant demurred upon the following grounds:

"(1) That the heirs and devisees of the trustees, who are dead, have not been made parties to the action. (2) That the land is conveyed by the deed to certain persons, as trustees, and their heirs and devisees, and there is no allegation that this was done by inadvertence or mistake, and therefore, it appears, that plaintiff has no interest in the land. (3) That the grantees named in the deed are all dead, and no new trustees have been appointed to act in place of them. (4) It appears that this action was brought many years after the execution of the deed, for a correction thereof, by converting the persons, named therein as grantees, into trustees for the plaintiff, notwithstanding that said grantees are dead and their heirs and devisees have not been made parties. (5) That the complaint fails to state facts sufficient to constitute a cause of action in favor of plaintiff and against the defendants, who have been made parties to this action. (6) That there is a defect of parties, in that it appears that the grantees named in said deed are dead and their heirs or devisees have not been made parties to the action."

The court overruled the demurrer and allowed defendants to answer, and they appealed from the order of the court overruling their demurrer.

Jerome & Jerome, of Greensboro, for appellants.

R. T. Poole, of Troy, U. L. Spence, of Carthage, and Harold T. Hathway, for appellee.

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

We will consider the grounds of demurrer in the order of their statement by the defendant.

First. It will be observed from the above synopsis of the complaint and demurrer, that the latter raises issues of fact rather than questions of law by simply denying the allegations, and in this respect it partakes somewhat of the nature of a speaking demurrer, and is not confined to its true and limited function. As to the first ground of demurrer, it appears sufficiently that the heirs or devisees of the trustees have been made parties by personal service of process or by substituted service.

Second. It is substantially alleged in the complaint that, if the deed really conveys the land to the individuals, who are named as trustees, so as to vest the title in them and for themselves and not as trustees of plaintiff, it was not the intention of the parties so to do, but to convey to them as trustees for the plaintiff, and if this is not expressed in the deed, it resulted from the mutual mistake of the parties. But we think that the deed does convey the land to the trustees for the plaintiff. It is familiar learning that a deed, as well as any other instrument, must be construed as a whole and a meaning by construction given to every part thereof, and another rule is that it must be interpreted according to the intention of the parties, to be gathered from its words, and without special regard for its formal arrangement. Brown v. Brown, 168 N.C. 4, at page 10, 84 S.E. 25, 27, where we said:

"Words shall always operate according to the intention of the parties, if 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 the necessity of taking the deed most strongly against the grantor. * * * Courts are always desirous of giving effect to instruments according to the intention of the parties, as far as the law will allow. It is so just and reasonable that it should be so that it has long grown into a maxim that favorable constructions are to be put on deeds. * * * Hence words, when it can be seen that the parties have so used them, may be received in a sense different from that which is proper to them, and the different parts of the instrument may be transposed in order to carry out the intent" (citing numerous cases, and among them Campbell v. McArthur, 9 N. C. 38, 11 Am. Dec. 738; Kea v. Robeson, 40 N.C. 373; Gudger v. White, 141 N.C. 507, 54 S.E. 386; Triplett v. Williams, 149 N.C. 394, 63 S.E. 79, 24 L. R. A. [ N. S.] 514).

And in Gudger v. White, supra:

"It is not difficult by reading the deed to reach a satisfactory conclusion as to what the parties meant, and we are required by the settled canon of construction so to interpret it as to ascertain and

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