Opinion
(July Term, 1817.)
Where a deed described a tract of land which was conveyed by it, and then followed these words, "one-half acre of land where my graveyard is, etc., is excepted," it was held that the graveyard only was excepted, but the two last tracts were granted.
TRESPASS quare clausum fregit, tried before DANIEL, J., at HYDE. The plaintiff claimed under Ellison, to McSwain, then being owner of the land conveyed by a deed, in which he bargained and sold his plantation whereon he then dwelt, together with all houses and buildings, all orchards, etc., it being part of a patent granted to Milines. The boundaries of this tract of 200 acres are then particularly described, after (606) which follow these words, "one-half acre of land where my graveyard is, which is at the end of my garden, and the privilege thereunto belonging, is excepted. Together with 45 acres lying on the front of the aforesaid land whereon the houses stand; reference to the patent for the courses of the same. Also another tract or parcel of land, containing 50 acres." The courses of the last tract are then described in the deed.
The trespass was committed on the two small tracts last described, viz., the 45-acre and the 50-acre patent, which the defendant, who is heir at law to McSwain, the bargainor, contends were not conveyed to Ellison, but were excepted. The dwelling-house, orchard, and graveyard are in the 45-acre tract; but McSwain had a part of each tract in cultivation when he conveyed to Ellison.
The jury, under the charge of the court, found a verdict for the defendant, and the plaintiff, upon his motion for a new trial being overruled, appealed to this Court.
The case was submitted.
I have no doubt that the plaintiff derived title to all three of the tracts of land under the deed to Ellison. Had the exception of the graveyard been connected with the part of deed describing the 45acre tract, no difficulty could have arisen as to the true construction; for it would then have corresponded with the office of an exception, and have been a saving out of the deed as to the thing granted. The ambiguity seems to have arisen from McSwain's supposing that the graveyard belonged to the 200-acre tract; he seems also to have thought that the plantation and orchard were on the same tract; the houses, too, he conveys as part of the 200-acre tract, but afterwards describes them as belonging to the 45-acre tract. It is decisive that the 45-acre tract was granted, and not intended to be excepted; that McSwain describes it as lying in front of the 200-acre tract. This repels every supposition that he might have thought it part of the other tract, and have believed it necessary to guard against its passing by inserting an exception. It not only could not pass by the words conveying the first tract, (607) but it is impossible that McSwain could have entertained such a belief. It was, therefore, altogether idle to have excepted it or the 50-acre tract. Upon the ground of intention, therefore, I think the two small tracts were conveyed as well as the large one.
But even if McSwain had intended to reserve the two small tracts, I think it may well be doubted whether the exceptions expressed as they are, would not have been void. He conveys the houses, plantation, and orchard in the most express terms in describing the 200-acre tract. The houses and orchard, it appears, are not on that tract, but on the 45-acre one; but the plantation is on all three. The exception, then, if it were to be sustained, would go, as to the houses and orchard, to the whole thing granted. What proportion of the plantation is in the two small tracts does not appear. Now, it is a clear rule of law that if an exception is repugnant to the grant, and take away the fruit of it, it is void. If one grant his meadow and pasture lands, except his meadow lands, the exception is void. So if one grant two acres, excepting one of them, it is void. Shepp. Touch., 77.
I therefore think there ought to be a new trial.
The plaintiff contends that all the land mentioned in the deed passed thereby, except the graveyard; and the defendant insists that the tracts of 45-acres and 50-acres are excepted. The deed is very inartificially drawn and obscurely worded. But that ought not to make any difference, if the intention of the parties can be discovered. That forms the true rule of construction of deeds as well as other instruments. And it appears to me that the meaning of these parties is very obvious. McSwain owned the three tracts of land described in the deed. They adjoined each other, and his cultivated land included parts of all of them. He resided on the 45-acre tract, where his houses and buildings and orchard were situate. In the deed he conveys (in terms of general description) his "plantation whereon he then dwelt, together with the houses and buildings, all orchards, etc., thereunto (608) belonging." He then proceeds in a more particular manner to describe the lands, and says, "It is part of a patent to Milines, containing 200 acres," and sets forth the boundaries. Then follows a clause in these words: "One half-acre land where my graveyard is, which is at the end of my garden, is excepted. Together with," etc. And here it is said, for the defendant, that the word together couples the 45-acres with the graveyard, and, consequently, includes them in the exception. It is to be recollected that the graveyard is not on the Milines patent, but on the small tract. Then, I ask, why except the graveyard, if nothing more was to be conveyed but the Milines patent? Again, if the whole of the 45 acres were to be retained, why specially except the half-acre, which formed a part of that tract? Moreover, he describes the 45 acres as the parcel on which the houses stand; and it appears in evidence that the orchard is also there. The first general description expressly includes them. That surely would not have been the case if they were not situated on a part of the land intended ultimately to pass by that deed, but on another tract, which was to be entirely excepted. From these circumstances I am very clear that the second tract is conveyed; and if so, the third also.
Wherefore, I am for a new trial.
DANIEL, J., gave no opinion.
NOTE. — See Wiggs v. Saunders, 20 N.C. 480; see, also, Sneed v. Harris, post, 672, a case of a devise.
(609)