Board of Transportation v. Pelletier , 38 N.C. App. 533 ( 1978 )

248 S.E.2d 413 (1978) 38 N.C. App. 533

BOARD OF TRANSPORTATION
v.
Lionel W. PELLETIER and wife, Myrtle M. Pelletier, James Paul Lewis and wife, Nancy W. Lewis, George W. Salter and wife, Clestine Salter.

No. 773SC1072.

Court of Appeals of North Carolina.

November 7, 1978.

Taylor & Marquardt by Nelson W. Taylor, III, Morehead, for defendants-appellants James Paul Lewis and Nancy W. Lewis.

Beaman, Kellum, Mills & Kafer by James C. Mills, New Bern, for defendant-appellee Lionel W. Pelletier.

HEDRICK, Judge.

Defendants Lewis agree that the land in dispute is embraced within the metes and bounds description contained in Pelletier's Registered Land Certificate. They bottom their claim, however, on the fact that the disputed land is not included in "Tract No. 2 of the division in ``Jelser, et al. vs. Newby, et al.,' Special Proceeding No. 415." Defendants Lewis realize that their claim must fail if the disputed land was in fact intended to be covered by the description in the land certificate.

In construing a deed description it is the function of the court to determine the true intent of the parties as embodied in the entire instrument. Franklin v. Faulkner, 248 N.C. 656, 104 S.E.2d 841 (1958); Hardy v. Edwards, 22 N.C.App. 276, 206 S.E.2d 316, cert. denied, 285 N.C. 659, 207 S.E.2d 753 (1974). "The intention of the parties as apparent in a deed should generally control in determining the property conveyed thereby; but, if the intent is not apparent from the deed, resort may be had to the general rules of construction." Sugg v. Greenville, 169 N.C. 606, 614, 86 S.E. 695, 699 (1915). It is generally recognized in this jurisdiction that a specific description will prevail over a general description. Where there is a specific description of land, other words intended to describe generally the same lands, will not be allowed to vary or enlarge the specific description. Root v. Allstate Insurance Co., 272 N.C. 580, 158 S.E.2d 829 (1968); Lee v. McDonald, 230 N.C. 517, 53 S.E.2d 845 (1949). This rule is derived from the proposition that an additional general description, such as a reference to the source of title, when contrasted with the specific description "can only be considered as an identification of the land described in the boundary," Midgett v. Twiford, 120 N.C. 4, 6, 26 S.E. 626, 627 (1897), or "as a further means of locating the property." Baltimore Building & Loan Association v. Bethel, 120 N.C. 344, 345, 27 S.E. 29 (1897). See also, Lewis v. Furr, 228 N.C. 89, 44 S.E.2d 604 (1947).

In the instant case, we believe the true intent of the parties can be ascertained by looking no further than the four corners of the instrument. The Land Registration Certificate contains a detailed metes and bounds description precisely locating the boundaries of the property. The further reference in the description to Tract No. 2 in the Jelser Proceeding was inserted merely for the purpose of identifying generally the property that is more specifically described by metes and bounds. The trial judge correctly held that the controlling description was the metes and bounds description and that the disputed property was included therein.

The cases cited and relied upon by defendants Lewis, Nash v. Wilmington and Weldon Railroad Co., 67 N.C. 413 (1872) and Hayden v. Hayden, 178 N.C. 259, 100 S.E. 515 (1919), are clearly distinguishable on their facts. In each of the cited cases the instrument being construed contained two conflicting specific descriptions rather than a specific description and a general description, as in the present case.

Affirmed.

PARKER and ROBERT M. MARTIN, JJ., concur.