Opinion
June Term, 1822.
1. A deed altered after its execution is good, if the alteration be made with the knowledge and consent of the grantor; and the part altered need not be registered to make it color of title, for an unregistered deed is color of title.
2. A mistake in the course or distance of a deed should not be permitted to disappoint the intent of the parties, if that intent appears, and if the means of correcting the mistake are furnished either by a more certain description in the same deed or by reference to another deed containing a more certain description.
EJECTMENT. The land in dispute was granted to Thomas Locke on 20 February, 1735, and in the patent was described as being "640 acres lying and being on the northeast side of the northwest branch of the Cape Fear River, beginning at a hickory on the river bank, thence north 75 east 160 chains to a stake, then south 15 east 40 chains, thence south 75 west 160 chains to an elm on the river bank, thence with the river to the first station."
Seawell and Mordecai for appellant.
Gaston for appellee.
Thomas Locke conveyed to Leonard Locke, and Leonard Locke conveyed to Neill McArthur; these facts appeared from the recital in a deed from Neill McArthur to his son, Archibald McArthur, for the lands in dispute. This deed bore date 4 July, 1777, and under it defendant claimed.
The plaintiffs, declaring their inability to deduce title by a regular succession of conveyances, relied upon color of title, and to support it produced two deeds: first, a deed from James Burgess to Farquhar Campbell, dated in 1789, for one moiety of a tract of land described as follows: "Lying and being on the northeast side of the northwest branch of Cape Fear River, beginning at a hickory, thence north 13 east 160 chains, thence north 15 east 40 chains, thence south 70 west 160 chains to an elm on the river bank, thence with the river to the first station, containing 640 acres, patented by Thomas (34) Locke on 20 February, 1735."
Secondly, a deed from James Hogg, dated in 1789, conveying to Farquhar Campbell one moiety of the land included in the patent to Thomas Locke.
The hickory and elm mentioned in the deed from Burgess, it was contended, are the same which are referred to in the grant to Thomas Locke.
Farquhar Campbell, in 1798, took an actual, adverse, and exclusive possession of the lands which had been granted to Thomas Locke, and his possession was continued by himself, or those claiming under him, without interruption, until February, 1807. Some time between 1798 and 1807. Farquhar Campbell died, having devised the lands to his sons Robert and James, as tenants in common; James died after the death of his father, leaving four children, who, together with Robert Campbell, are the lessors of the plaintiff.
In February, 1807, the defendant, acting under a power of attorney from Archibald McArthur, before mentioned, obtained the possession and has since kept it. This action was commenced in 1807.
Archibald McArthur was born on 1772. In 1782 he went to England, and has continued beyond seas ever since.
Defendants contended below, first, that the deed from Burgess to Farquhar Campbell was executed with blanks for the day of the date and the consideration, and that these blanks were filled up after the execution of the deed. In proof of this they produced two copies of the deed certified by two different registers, in which the day of the date and the consideration were omitted, and relied further on different shades in the ink with which the deed was written. Secondly, that the deed did not cover the land in dispute, if the boundaries were run as expressed therein according to course and distance, and that here no reason was furnished for a departure from course and distance. Thirdly, that Archibald McArthur, being beyond seas, was not (35) affected by the statute of limitations, and that his title was saved by the exception in the statute.
The court, leaving it to the jury as a matter of fact to ascertain what was the situation of Burgess' deed at the time of its execution, stated as the law that if the deed had been executed in blank, and the omissions were afterwards supplied, unless with the knowledge and consent of the grantor, the deed would thereby be avoided and could not operate as color of title; that color of title included, at least in its definition, such a deed or instruments as, if executed by the real owner, would pass the title in the land.
As to the second objection, the jury was instructed that all rules of construction and boundary were intended to ascertain and advance the real design of the parties; and that a mistake in a course or distance should never be permitted to disappoint the intent of the parties, if that intent appeared and the means of correcting the mistake were furnished, either by a more certain description in the same deed or by reference to another deed containing a more certain description. That here, as the deed called for the beginning of Locke's patent, as well as the elm, the termination of the third line of said patent, and as the deed declared the intention to be to convey the 640 acres of land patented by Locke, the jury, if it was necessary, in order to accomplish the intent of the parties, should disregard a mistake in the courses of the deed, and pursue the real and true boundary of the patent, to arrive at the corner elm on the river.
As to the statute of limitations, the court charged that as Archibald McArthur was of full age in the year 1793, and was under no disability but that of being beyond seas at the time the adverse possession commenced, and as the saving in the statute for persons beyond seas has the proviso that they shall, "within eight years after the title or claim becomes due, take benefit and sue for the same," and as he had not done so within eight years, he was clearly out of the saving of the statute. (36)
There was a verdict for the plaintiffs, and defendant moved for a new trial on the grounds of misdirection in law and a finding contrary to evidence. The motion was overruled, and from the judgment rendered defendant appealed.
This is a motion for a new trial on the part of the defendant, who alleges that the court misdirected the jury, and that the jury found against the evidence. It appears from the case that the father of the lessors of the plaintiff was in possession of the land claimed more than seven years claiming under a color of title by means of two deeds from Burgess and Hogg, each for a moiety of a tract of land granted to Thomas Locke, on 20 February, 1735. There is no controversy relative to the deed from Hogg; it is not denied that his moiety was duly conveyed by it, but the questions arise altogether from Burgess' deed. It is said this deed was registered, having two blanks, one for the date and the other for the consideration, and that as this fact appears from two official copies of two different registers, it follows that the deed must have been filled up since that time, and is thereby avoided by this (37) alteration. Whether the deed was altered after its execution was properly submitted to the jury as a question of fact; and if it was so altered they were instructed that the deed was thereby avoided, unless the alteration was made with the consent and knowledge of the grantor. In this instruction I think the judge is clearly sustained by undoubted authority. Where A. and B. sealed and delivered a bond to C., and afterwards the name and addition of D. was interlined, and he also sealed and delivered the obligation, with the consent of all parties, it was held to be a good obligation of all three. 2 Lev., 35. This case is cited by Comyns in his Digest, and has been repeatedly recognized as law. There is a case in 1 Anstruther, 228, where a bond was executed with blanks for the name and sum, and delivered by the obligor to an agent for the purpose of raising money; the plaintiff lent a sum, and the agent filled up the blanks with that sum and the plaintiff's name and delivered the bond to him, and on non est factum pleaded the bond was held good. And a party executing a bond, knowing that there are blanks in it to be filled up by inserting particular names or things, must be considered as agreeing that the blanks may thus be filled up after he has executed the bond. Ventris, 185. The objection that even if the deed were filled up with the consent of the grantor, it ought subsequently to have been registered, has been decided on in this Court; and it has been held that an unregistered deed will make a color of title.
I am also of opinion that the charge of the judge was not less unexceptionable in stating "that a mistake in a course or distance should not be permitted to disappoint the intent of the parties, if that intent appeared, and if the means of correcting the mistake are furnished either by a more certain description in the same deed or by reference to another deed containing a more certain description."
(38) The land conveyed by Burgess to Campbell is designated by these several particulars, viz., a moiety of the tract thereinafter described, the courses and distances, a hickory at the beginning, an elm on the river bank or the end of the third line, and a reference to the patent of Locke, bearing date on 20 February, 1735, which consequently includes the boundaries and location of that land. There is an evident mistake in some of the courses and distances described in Burgess' deed to Campbell, so that if the land were laid off according to them it would not comprehend a moiety of Locke's 640 acres; but there is also so much correspondence between the lines and those in Locke's patent as to show an intention to convey a moiety of that land. In the corner trees, however, there is no mistake, for the same in number and quality are called for both in the deed and patent, and thus a reference to Locke's patent renders certain what an incorrect description of the lines had rendered uncertain. So that I cannot think any difficulty will present itself in ascertaining the land intended to be conveyed by the deed, when recourses is had to the patent. The grantor has referred to this as the means of correcting any mistake in the description of the land, and of ascertaining what his intent was in making the deed. 5 Wheaton, 359, 362. 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 necessity, of taking the deed most strongly against the grantor.
It is supposed that the judge erred in instructing the jury that Burgess' deed called for the beginning of Locke's patent, whereas it calls for a hickory, and that it called for the elm, the termination of the third line of the patent; whereas, it (39) merely calls for an elm on the river bank, thereby assuming two facts, of which proof should have been made for the consideration of the jury.
It is true that the deed does not in so many words describe the trees or boundaries of the patent, nor does it appear that any witnesses were called to prove their identity, but the construction of deeds is a question of law for the court, and if from a comparison of the lines, it appeared that the trees called for in the deed were the same with those called for in the grant, it was only stating the conclusion instead of the premises warranting it. It is not a fair intendment and necessary construction of the deed? There are but two trees on the bank of the river as boundaries of Locke's patent, a hickory and an elm. When Burgess' deed, therefore, conveying a moiety of the 640 acres, designates a hickory as the beginning, and an elm as the determination of the third line, it is not a forced construction to consider them as the same, more especially when the line leading from the elm does, both in the deed and the patent, go to the beginning. Upon the whole, it appears to me that the charge was correct, and that the law has been duly administered in this case. I therefore think a new trial must be refused and the judgment affirmed.
HALL and HENDERSON, JJ., concurred.
PER CURIAM. No error.
Cited: Ritter v. Barrett, 20 N.C. 269; Everitt v. Thomas, 23 N.C. 256; Cooper v. White, 46 N.C. 392; Hardin v. Barrett, 51 N.C. 161; Kron v. Hinson, 53 N.C. 348; Mizell v. Simmons, 79 N.C. 190; Credle v. Hayes, 88 N.C. 324; Davis v. Higgins, 91 N.C. 387; Baxter v. Wilson, 95 N.C. 144; Perry v. Perry, 99 N.C. 273; Ellington v. Ellington, 103 N.C. 58; Avent v. Arrington, 105 N.C. 389; Lewis v. Roper, 109 N.C. 20; Tucker v. Satterthwaite, 123 N.C. 528; Gudger v. White, 141 N.C. 514; Wells v. Harrell, 152 N.C. 219; Ipock v. Gaskins, 161 N.C. 678; Brown v. Brown, 168 N.C. 10; Lumber Co. v. Lumber Co., 169 N.C. 89, 95; Mining Co. v. Lumber Co., 170 N.C. 276; Byrd v. Spruce Co., ib., 433.
(40)