Moore v. Whitley , 234 N.C. 150 ( 1951 )

66 S.E.2d 785 (1951) 234 N.C. 150

MOORE et al.
v.
WHITLEY.
BUTT
v.
MOORE et al.

No. 23.

Supreme Court of North Carolina.

September 19, 1951.

John A. Wilkinson, H. S. Ward, Washington, for plaintiffs appellees.

Grimes & Grimes, Washington, for Whitley and Butt appellants.

WINBORNE, Justice.

The sole assignment of error presented for consideration on this appeal challenges the ruling of the court below in holding that the Moores, plaintiffs, are entitled to a jury trial. Testing their exceptions to the referee's report, and their tender of issues, particularly the issue of title arising on the pleadings, by rules of procedure for preserving right to jury trial in a compulsory reference case, as enunciated in decisions of this Court, it appears that they meet the requirement sufficiently to withstand successful attack. See Booker v. Town of Highlands, 198 N.C. 282, 151 S.E. 635; Brown v. E. H. Clement Co., 217 N.C. 47, 6 S.E.2d 842. See also Cherry v. Andrews, 229 N.C. 333, 49 S.E.2d 641.

A compulsory reference, under provisions of G.S. § 1-189, does not deprive either party of his constitutional right to a trial by jury of the issues of fact arising on the pleadings, but such trial is only upon the written evidence taken before the referee. And the decisions of this Court hold that the report of the referee, consisting of his findings of fact and conclusions of law, are incompetent as evidence before the jury. Bradshaw v. Hilton Lumber Co., 172 N.C. 219, 90 S.E. 146; Booker v. Town of Highlands, supra; Cherry v. Andrews, supra.

Hence, the Moores having properly excepted to the findings of fact and conclusions of law of the referee and tendered the issue of title raised by the pleadings, the ruling of the court below is proper.

And it is noted that since the exceptions filed by the Moores to various portions of the evidence have not been passed upon by the trial court, the questions as to the competency thereof is not now presented to this Court.

Moreover, the appellants, Whitley and Butt, demur ore tenus in this Court to the complaint of the plaintiffs Moore, in the first action, on the ground that "the complaint does not state a cause of action for the ownership of any land on the east side of Porter's Creek". They contend that the description set out in the complaint expressly locates the land on the "west" side of Porter's Creek. On the contrary, the Moores contend that the specific description in their complaint locates the land on the "east" side of Porter's Creek, and that the specific description controls the general description.

In this connection, the rule is that where there is a particular and a general description in a deed, the particular description prevails over the general. See Whiteheart v. Grubbs, 232 N.C. 236, 60 S.E.2d 101, and cases there cited. It is only when the specific description is ambiguous or insufficient, or the reference is to a fuller and more accurate description, that the general clause is allowed to control or is given significance in determining the boundaries—also see Whiteheart v. Grubbs, supra, and cases there cited.

Furthermore, what are the boundaries of a deed is a question of law for the court, where they are, is a question of fact for the jury. Scull v. Pruden, 92 N.C. 168; Davidson v. Shuler's Heirs, 119 N.C. 582, 26 S.E. 340; Rowe v. Cape Fear Lumber Co., 128 N.C. 301, 38 S.E. 896; Gudger v. White, 141 N.C. 507, 54 S.E. 386; Sherrod v. Battle, 154 N.C. 345, 70 S.E. 834; Rose v. Franklin, 216 N.C. 289, 4 S.E.2d 876; Huffman v. Pearson, 222 N.C. 193, 22 S.E.2d 440; Kelly v. King, 225 N.C. 709, 36 S.E.2d 220; Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845.

In Reed v. Shenck, 14 N.C. 65, in concurring opinion by Ruffin, J., it is declared "a deed is construed by the court, not by the jury. What land by its terms it was intended to cover is just as much a matter of law as what estate it conveys". See Brown v. Hodges, 232 N.C. 537, 61 S.E.2d 603.

Also, the principle is established by an unbroken line of decisions of this Court that "Mistake or apparent inconsistency in the description shall not be permitted to disappoint the intent of the parties if the intent appear in the deed". Mitchell v. Heckstall, 194 N.C. 269, 139 S.E. 438, 439. See also Ritter v. Barrett, 20 N.C. 266; Cooper v. White, 46 N.C. 389; Mizell v. Simmons, 79 N.C. 182; Davidson v. Shuler's Heirs, supra; Wiseman v. Green, 127 N.C. 288, 37 S.E. 272; Ipock v. Gaskins, 161 N.C. 673, 77 S.E. 843; Williams v. Williams, 175 N. C. 160, 95 S.E. 157; Seawell v. Hall, 185 N. C. 80, 116 S.E. 189.

In Wiseman v. Green, supra [127 N.C. 288, 37 S.E. 273], it is said that "it seems to be well settled that the court has the right to construe a deed, and, in proper cases, to correct an inadvertence,—a ``slip of the pen,'—when it plainly appears from the deed itself".

In the light of these principles it is clear that the demurrer ore tenus to the complaint should be, and it is hereby overruled. And the judgment from which appeal is taken is

Affirmed.

VALENTINE, J., took no part in the consideration or decision of this case.