Brown v. . Southerland , 145 N.C. 331 ( 1907 )

From judgment for defendants the plaintiffs appealed.

The pleadings and admissions disclose this case: Spiars Smith died seized of a tract of land which descended to his five children, one of whom is the feme defendant, and another H. C. Smith. The land was partitioned and a lot of 70 acres, described by metes and bounds, allotted to feme defendant. The share of H. C. Smith was allotted in two tracts — one of 47 acres lying south of the feme defendant's tract, and one of 15 1/2 acres lying north thereof. Thereafter, said H. C. Smith died intestate, whereupon his share was partitioned among his surviving brothers and sisters, 20 acres of the 47-acre lot being allotted to feme defendant. On 6 July, 1900, feme defendant and her husband contracted to sell the share allotted her in the Spiars Smith and in the H. C. Smith land to the plaintiffs, and, pursuant thereto, gave to Mr. Hill the plat showing the first partition by which to draw the deed. He described the 70-acre tract by metes and bounds, and proceeded to describe the interest in the H. C. Smith lands as follows: "Second Tract: All interest in the land of H. C. Smith, deceased, as divided by committee, first on the north side of the first tract, said to contain about 5 1/2 acres. Third Tract: All interest in the land of H. C. Smith, deceased, south of the first tract of 70 acres and said to contain about 20 acres, more or less, or being the interest of section No. 1, as platted by John M. Caldwell in November, 1887."

Mr. Hill did not have before him the plat showing partition of H. C. Smith land. There is no tract of 5 1/2 acres. This action is brought to recover damages for breach of the covenant of seizin and warranty contained in the deed from defendants to plaintiffs. It is conceded that plaintiffs got, under the description in the deed, all of the interest of defendants in the Spiars Smith and the H. C. Smith land. His Honor, upon the pleadings and admissions, was of the opinion that the deed, construed in connection with the admitted facts and the (333) evidence of plaintiffs, did not purport to convey anything but the interest of the defendants in the Spiars Smith and H. C. Smith land. He rendered judgment for defendants. Plaintiffs excepted and appealed. After stating the facts: The case seems to have been tried upon the pleadings and admissions. Neither party tendered any issues, and, of course, no prayers for instructions. It is manifest that the defendants only intended to convey, and plaintiffs to buy, the interest of the defendants in the Smith land. It is equally clear how the draftsman fell into the error of supposing, in the absence of any plat showing partition of the H. C. Smith land, that such interest extended to both the 47-acre and the 15 1/2-acre tracts; whereas the defendants had no interest in the last-named tract. It is equally clear that the controlling thought of the grantors was the conveyance of their interest in the H. C. Smith land "as divided by the committee." If there had been no division, the deed would have conveyed only the undivided interest, and not any specified number of acres; hence, the mention of the number of acres only indicated the extent of the interest. If the number of acres is controlling, the plaintiffs got more than they were entitled to in the 47-acre tract. If this was the basis upon which the contract price was fixed, plaintiffs have 90 acres, whereas they would have had but 86 acres. If it was "an undivided interest" which they were buying, they got "the interest" of the grantors in the land of H. C. Smith as divided by the committee, which is all that the deed purported to convey. Hence they show no breach of the warranty.

We think that his Honor's view was correct, and that, reading the entire description in the light of the admissions, the deed conveys all that the parties intended to grant or plaintiffs were entitled to (334) receive. Plaintiffs suggest that they were entitled to have the question whether there was a mistake in the deed submitted to the jury. It does not appear that any request was made to his Honor to do so. We are of the opinion that his Honor correctly interpreted the deed. The judgment should be

Affirmed.