Dixon v. . Coke , 77 N.C. 205 ( 1877 )

Facts agreed upon:

1. Charles W. Skinner being indebted to Whedbee Dickinson, executed to the defendant Coke, for their benefit, a deed of trust, dated 26 June, 1875, conveying certain property, as follows: "1,800 bushels of Turk's Island salt, his entire fishing material, with all the additions to be made to it for use during the spring of 1876, consisting of seine, rope, 3 bateaux, 11 capstands, 86 stands, and all the vats, all of the said described material being at the fishery (of Skinner) on Albemarle Sound, known as Long Beach."

(206) 2. On 15 May, 1876, said Skinner being indebted to the plaintiff, conveyed to him in trust to secure the same "all the fishing material at Long Beach fishery, consisting of one seine, 3 boats, windlasses, fish stands, barrels, about 1,600 bushels of salt, and kegs, subject to the prior lien, terms and conditions of two trust deeds made respectively to John A. Moore and Octavius Coke."

3. On 15 August, 1876, Skinner, for like consideration, made a trust deed to W. D. Pruden, to secure indebtedness to C. W. Carson, in which he conveyed as follows: "All his barrels (about 500), all his kegs (about 275), also all the salt (about 800 bushels), bought by said Skinner during 1876, now at Long Beach fishery in said county."

4. That Skinner, during the year 1876, bought other salt and deposited it at Long Beach fishery, in the same house with that conveyed to Coke, and the line of demarcation between the two lots was plain and distinct.

Coke insisted that he was entitled under the deed to him to everything on hand, including the barrels, kegs, and the salt bought in 1876, to which Dixon and Pruden also set up a claim under their respective deeds. Thereupon his Honor adjudged that Dixon recover the barrels and kegs and the sale purchased subsequent to 26 June, 1875, and on hand on 15 May, 1876; and after satisfying his claim, the residue thereof, or the proceeds of sale of same, shall be paid to Pruden, trustee, for the benefit of Carson. From which judgment the defendant Coke appealed. 1. The deed to Coke on 26 June 1875, does not profess to convey any salt beyond what the grantor, Skinner, had at Long Beach at that date, which he says was 1,800 bushels. The plaintiff does not claim that. After this deed to Coke, the grantor bought about 1,600 bushels of salt, which he stored in the same warehouse with (207) what he had conveyed to Coke, but in such a way that the two lots were distinguishable. We have no occasion, therefore, to consider any questions which might have arisen if the two lots had been mingled indistinguishably. On 15 May, 1876, Skinner conveyed to plaintiff (among other things) 1,600 bushels of salt, all subject to the prior liens, etc., to Moore and Coke. On this salt Coke had no prior lien, and it passed to the plaintiff. The plaintiff was clearly entitled to recover all the salt of Skinner at Long Beach, bought and carried there after 26 June, 1875, and being there on 15 May, 1876.

2. As to the fishing materials, not including the salt, Skinner, by his deed to Coke, of 26 June, 1875, conveys "his entire fishing material, with all the additions to be made to it for use during the Spring of 1876,consisting of seine, rope, 3 bateaux, 11 capstans, 86 stands, and all the vats, all the said described materials being at Long Beach."

By the deed of 15 May, 1876, above mentioned, Skinner conveyed to the plaintiff "all the fishing material at Long Beach fishery, consisting of one seine, three boats, windlasses, fish stands, Barrels, about 1,600 bushels of salt, and kegs, subject to the prior liens," etc. The plaintiff claims all the barrels and kegs which were at Long Beach at the date of the deed to him. As to the other matters conveyed, excepting the salt, which has been before considered, the plaintiff makes no claim. The defendant contends that, under the general description, "entire fishing material," the barrels and kegs at Long Beach at the date of the deed to him (June, 1875) were included and were conveyed to him. The term would certainly include the barrels and kegs, if the grantor had not defined and limited it by saying "consisting of" things in which they are not enumerated. It is a settled rule of construction that an enumeration of particulars following a general expression controls it, and limits it to the particulars enumerated. Expressio unius exclusio (208)alterius.

The phrase "consisting of" particulars, from which the barrels and kegs are omitted, leaves the meaning too clear for doubt.

3. The addition in deed to plaintiff of the words "subject to the prior lien," etc., does not add to the scope of the previous grant to the defendant, or include in it anything not included by its own terms. Certain of the articles conveyed to the plaintiff had been previously conveyed to defendant, and the words "subject to prior liens," etc., must be understood to refer only to the articles which had been before conveyed, to which the expression is adapted, and not to those which had not been before conveyed, to which it is not applicable.

4. The construction which we put on the grant to Coke makes it unnecessary to consider what might be the effect of a grant of property not then owned by the grantor, but which he contemplated buying, and did afterwards buy. The words in the grant to Coke, "with all additions to be made to it," etc., are evidently confined to the fishing material as defined by the grantor. They did not relate to the salt, nor to any articles which were not fishing material as defined by the grantor. There was an additional quantity of salt bought, and also of barrels and kegs, but it does not appear that there was any addition to the articles which the grantor enumerates as fishing materials. If there had been, the question would have been presented as to that.

No question is presented between the plaintiff and Pruden.

PER CURIAM. Affirmed.

Cited: Latta v. Williams, 87 N.C. 129.

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