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MURPHY . MURPHY.
To this conclusion of law the plaintiff duly excepted. The exception upon the hearing before his Honor, Judge Neal, was overruled and the report of the referee confirmed. Plaintiff excepted and appealed.
The solution of the single question presented upon the exception is dependent upon the construction of the deed from Thomas Murphy to Mrs. Susan W. Murphy.
There are well settled rules adopted by the courts in construing doubtful or ambiguous expressions in deeds. Those which will aid us in the solution of the question presented
1. That the entire deed must be read and such construction of particular clauses be adopted as will effectuate the intention of the parties as gathered from the whole instru
2. That such construction shall be adopted as will, if possible, give to every portion thereof effect.
3. That when terms are used which are clearly contradictory the first in order shall be given effect to the exclusion of the last. Wheeler v. Wheeler, 39 N. C., 210; 4 Am. &
Eng. Enc. (2d Ed.), 800.
4. That when language is of doubtful meaning, that construction shall be put upon it which is most favorable to the grantee. Cox v. McGowan, 116 N. C., 131.
"Contradictory descriptions in a deed, one of which is sufficient to distinguish the thing granted, shall not frustrate it, but if the descriptions can be reconciled, both must stand." Sheppard v. Simpson, 12 N. C., 237.
"If there is a full and clear description contained in one part of a deed, and in another part one less clear and full which can not be reconciled with the first, the weaker shall give way, and if it can not be disposed of otherwise, entirely rejected. Thus, if A grant to B 'Blackacre' which he purchased of C, 'Blackacre' will pass, although A purchased it
MURPHY V. MURPHY.
of B and not of C." Henderson, J., in Sheppard v. Simp
"Where there is a general description as to the property conveyed followed by a definite and particular description, the latter will control; as if a deed convey land known as the 'Mount Vernon Place' followed by a specific description setting forth metes and bounds, the latter would control and such land would pass as is included therein." Cox v. McGowan, supra.
In Dodge v. Walley, 22 Cal., 225, 83 Am. Dec., 61, the language of the deed was: "All right, title and interest of said Daniel S. Clark, etc. in and to the following described property, to-wit," etc. This was followed by a more particular description. There being some controversy as to what passed under the deed, the court said: "It distinctly conveys 'all the right, title and interest of the said Daniel S. Clark' in and to the ranch. If it stopped here, there could be no room for doubt as to its meaning. To this point it clearly conveys all the interest of Clark in the property, which would carry the interest he acquired from Walley and every other person. The latter part of the description where it says 'being a leasehold unexpired,' etc. are not words limiting the extent of the previous terms of conveyance, or excepting out any interest conveyed by the previous terms, but merely a statement of the officer and grantor of what he supposed or understood was the nature and character of the interest of Clark. He uses no terms limiting or confining his conveyance to such unexpired leasehold interest. If he had used such terms, it would have presented a case of greater difficulty, but in the absence of language qualifying or limiting the general terms conveying all his interest, we would not be justified in restricting the conveyance as contended by the appellant. Deeds are always to be construed most strongly against the grantor where there is any ambiguity or uncertainty."
MURPHY V. MURPHY.
In McLennon v. McDonnell, 20 Pac. Rep. (Cal.), 566, the deed conveyed "all the right, title and interest of the party of the first part, the same being a one-half undivided half interest in and to the following described property," etc. whereas the grantor in fact owned a larger interest than onehalf. The court said: "This deed clearly conveys 'all the right, title and interest' of Campbell. The words 'being a one-half undivided interest' are not words limiting the extent of the previous terms of conveyance or excepting out any interest conveyed by the previous terms."
In Moran v. Somes, 28 N. E. Rep. (Mass.), 152, it is said: "We think the deed from Somes to Rand must be held to convey all the interest which the grantor had at the time of its execution and delivery in the tract described in it. It must be taken most strongly against the grantor, and the words 'all my right, title and interest' are not to be cut down by the subsequent reference to the two deeds, and the statement that his interest in the estate is three undivided fifths, which may well have arisen from forgetfulness, was evidently a mistake." See also Green v. Hewett, 55 Wis., 96; 42 Am. Rep., 701.
The construction which we have adopted is very much strengthened by the language following the description, "and all of the estate, right, title, interest, claim, demand, dower and right of dower, in law or equity or otherwise howsoever, of the said Thomas Murphy, party of the first part, of, in and to the same," etc. This language is inconsistent with the idea that he was conveying or intended to convey any less than his entire interest and estate in the land.
The reasoning of the court in the cases cited leads us to the conclusion that the judgment should be affirmed.
SMITH V. BROWNE.
SMITH v. BROWNE.
(Filed April 21, 1903.)
1. AGENCY-Declarations-Principal and Agent.
The declarations of an agent are not competent to show his agency.
The letter to a real estate agent from the owner, set out in the opinion in this case, does not show that the agent had authority to receive purchase money.
The parol authority to negotiate a sale of real estate does not imply authority to receive payment therefor.
The authority of an agent to sell real estate need not be in writing.
ACTION by T. T. Smith, Jr., against W. T. Browne, heard by Judge Thomas A. McNeill and a jury, at October Term, 1902, of the Superior Court of GUILFORD County. judgment for the plaintiff, the defendant appealed.
King & Kimball, for the plaintiff.
John A. Barringer and L. M. Scott, for the defendant.
MONTGOMERY, J. The plaintiff brought this action to compel specific performance of an alleged contract entered into with him by Sturgis & Co., the agents of the defendant. It is declared in the complaint that Sturgis & Co., known as real estate agents in the city of Greensboro, were authorized and empowered by the defendants to sell the lot of land described in the complaint and that the plaintiff bought the same from Sturgis & Co., acting as the agents of the defendant, and paid to them the full value of the lot ($300), and that the defendant has refused to make a deed to the plaintiff to the lot. The defendant in his answer admits that he owned the lot of land and that he put it in the hands of
SMITH V. BROWNE.
Sturgis & Co., that they might find for him a purchaser, and report to him in case they were successful; but he denied that he gave to them any authority to sell the property or to enter into any contract concerning it or to receive any money upon any contract concerning its sale. The agency was entirely in parol. The agents, however, executed and delivered to the plaintiff a receipt as follows, dated Greensboro, September 12, 1900: "Received of Thomas T. Smith, Jr., $300 in full payment of lot No. 22, of the McMahon plat No. 2. Deed to be delivered to him for house complete, turnkey job, and the said lot when the house is complete. One hundred dollars additional to be paid when house is raised, and the balance of $506 to be paid when the house is in tenantable condition. It is distinctly understood that Mr. Smith is to pay only for house and lot complete the sum of $900, the $6 being for fence, as per note on plan." Signed, L. H. Sturgis & Co.
On the trial the plaintiff undertook to prove that Sturgis & Co. were the authorized agents of the defendant to sell the land. He offered himself as a witness to show the agency through the declarations of Sturgis, which evidence his Honor properly refused to receive. The plaintiff then, for the same purpose, introduced over the defendant's objection a letter from the defendant to Sturgis & Co., dated Blowing Rock, N. C., September 17, 1900, and addressed to L. H. Sturgis & Co., at Greensboro, N. C., which is as follows: "Dear Sirs:-Yours of the 13th instant has been forwarded and received here, but you have not said whether that $265 is the net amount or includes your commission. I had hoped that you could have gotten at least $300 for it, as you thought it should bring $325. Please let me have full information about the matter, and when the deed should be made out, as I may be out of the State again on my usual fall trip South, and please send me a blank deed or two, with name and resi