Coble v. . Barringer
88 S.E. 518
N.C.
1916
Check Treatment
Walker, J.,

after stating the case: First. We hear and determine a case here according to the theory upon which it was tried in the court below. Allen v. R. R., 119 N. C., 710; Hendon v. R. R., 127 N. C., 110; S. v. McWhirter, 141 N. C., 809; Warren v. Susman, 168 N. C., 457. In Allen v. R. R., supra, it was said by the Court that “While we are not bound by an erroneous admission of a proposition of law, we must have respect to the manner in which parties present and try their cases.”

It is manifest, we think, that the plaintiff elected to base his right to a recovery and to stake his fortune upon the allegation of fraud. In other words, his idea was that if there was this alleged fraudulent conduct, and the deed should be so reformed as to correspond with the true agreement, there would be a breach of the covenants of seizin and warranty and right to convey. The case was tried on the issues as to the fraud, and, having lost on his chosen ground, the plaintiff must abide by the result. No issue as to the covenant and its breach was tendered or submitted, but only the issues as to the fraud and the outstanding title in the University.

Second. But if an issue as to- the covenant and its breach had been submitted, we are of the opinion that the result would have been the *448 same. Cyrus Clapp and otters conveyed to tbe defendant, John A. Barringer, not tbe land or a good and indefeasible title therein, but only their “right, title, and interest in the land.” They conveyed what they had to convey, and nothing more. This was not enlarged or changed into a conveyance of the land itself by the covenants of seizin and warranty, though general in character. Chief Justice Shaw said of such a deed, in Blanchard v. Brooks., 29 Pick., 47, 67: “The grant in the deed is of all his right, title, and interest in the land, and not of the land itself, or any particular estate in the land. The warranty is of the premises, that is, of the estate granted, which was all his right, title, and interest. It was equivalent to a warranty of the estate he then held or was seized of, and must be confined to estate vested. A conveyance of all the right, title, and interest in the land is certainly sufficient to pass the land itself, if the party conveying has an estate therein at the time of the conveyance; but it passes no estate which is not then possessed by the party. Brown v. Jackson, 3 Wheat., 452.” The case of Allen v. Holton, 20 Pick., 458, strongly supports the same view. It was there held that “in the case of a deed conveying ‘all my right, title, and interest in and unto the ferry called and known by the name of Tiffany’s ferry, and the boat which I built and now use in carrying on the ferry, and all the estate, land, and buildings standing thereon as the same is now occupied and improved by me,’ with covenants of ownership, general warranty, etc., the deed purported to convey merely such right as- the grantor had in the land, and that the covenants were qualified and limited by the grant.” The same question was presented in Sweet v. Brown, 12 Metcalf, 169 (53 Mass.), where “the right, title, and interest” only were conveyed, and Justice Wilde said, at p. 177: “The warranty must be taken in a limited sense. It must be restricted to his title and interest. The covenant here attached to the estate and interest conveyed, and is not a general covenant of warranty of the whole parcel, particularly described by metes and bounds. Such construction will reconcile all parts of the deed and give effect to each. The question now presented is not a new one, but has been directly decided.” We have cited the above authorities because the plaintiff has relied upon three cases, one 'of which was decided in the same court as those above mentioned: Hubbard v. Aphthorp, 3 Cush. (57 Mass.), 419; Mills v. Catlin, 22 Vt., 98; Lull v. Stone, 37 Ill., 224. There is no conflict, though, between these cases, when properly considered with reference to their special facts, and those which support our view.

In Hubbard v. Aphthorp, supra, there was a conveyance of the land with definite boundaries. These words were added, however: “meaning and intending by this deed to convey all my right, title, and interest therein.” The Court said that “The construction of a deed is *449 to be such., if possible, as to give effect to the intentions of the parties,” and, therefore, when it is a mere conveyance of all the title of the grantor, it may be held that the covenants (such as we have in this case) have no application beyond the words of the grant itself. The Court then proceeded to say: “As it seems to us, this second description was added rather for fullness and'certainty.than with the view of any limitation as to the tracts of land conveyed.” So that the case, instead of being against the view we have expressed, is an authority in support of it. The other cases cited by appellant are substantially to the same effect, and all of them were different from the case we are considering.

The office of a covenant of warranty is, of course, not to enlarge or curtail the estate granted in the premises of the deed, but the covenant is intended as an assurance or guaranty of the title. Roberts v. Forsythe, 14 N. C., 26; Snell v. Young, 25 N. C., 379. When there is a question of construction, the covenants may well be resorted to in order to ascertain the meaning, as the whole deed must, in such a case, be considered. Mills v. Catlin, supra. The Court said with reference to this matter, in Allen v. Holton, supra: “Whatever may be thought of the intention of the parties in that ease, we think the intention as to the extent of the grant in the present case is sufficiently plain. The grantor conveys his own title only, and all the subsequent covenants have reference to the grant, and are qualified and limited by it. That this was the intention of the parties cannot, we think, be reasonably doubted, and the words of the covenants are to be so construed as to effectuate that intention.”

Third. But a deed should be construed as a whole. One part is to help expound another, and every word, if possible, is to have effect, and none should be rejected if material, and all the parts thereof should be reconciled and stand together so as to ascertain and execute the intention. Gudger v. White, 141 N. C., 507; Triplett v. Williams, 149 N. C., 394; Lumber Co. v. Lumber Co., 169 N. C., 80; Mills v. Catlin, supra. Applying this well recognized principle to a case having facts similar to this one, the Court said, in Sweet v. Brown, supra: “The covenants are in terms general; but in the construction of a deed we are to look at the whole deed, and the covenants are to be construed so as to give effect to the intention of the parties, so far as it can be done consistently with the rules of law. The warranty is of the premises which were granted and conveyed by the deed. But that was ‘all my right, title, and interest in and to the parcel of real estate,’ etc. It was not a grant of certain land, in general terms, but of his title and interest in such lands, and this particularly and fully expressed.” There can be no question in this case that the parties were doubtful *450 as to tbe title, and especially as to whether Cyrus Clapp and the others, who conveyed the land to Mr. Barringer, had inherited from Charles Dick, who had been a slave, under the provisions of the statute in regard to the descent and devolution of property from former persons who had been in slavery, and this was doubtless the reason why they worded the deed cautiously and conveyed only “the right, title, and interest,” whatever that may have been at the time. It is apparent from both deeds that the intention was not to go beyond the right, title, or interest of the grantors in describing what was conveyed. The covenant in the deed of Mr. Barringer refers three times to the interest and not to the land, showing clearly that he intended to restrict the covenant to that interest, whatever it was and if it was anything, and that it was also intended not to convey a good title with a covenant to protect it, but only an interest — not the title itself, but only the chance of a title. The theory of the defendants, as to both deeds, is, therefore, this: that the conveyance is to be treated as one only of the right, title, and interest of the grantor in the land described, and the covenant as coextensive with such a grant only, and so as not to extend further; and in this view we concur. Apart from the actual intention as gathered from the deeds, there are many authorities sustaining ours as the legal construction of the instruments, in addition to those already cited. Reynolds v. Shaver, 59 Ark., 299; Hanrich v. Patrick, 119 U. S., 175; Allison v. Thomas, (Cal.) 1 Am. St., 90; Derrick v. Brown, 66 Ala., 162; Wightman v. Apofford, 56 Iowa, 145; Cummings v. Dearborn, 56 Vt., 441; 1 Warville on Vendors (2 Ed.), p. 516, sec. 437; 9 Am. and Eng. Enc., 104; sec, also, generally, Lumber Co. v. Price, 144 N. C., 53; Bryan v. Eason, 147 N. C., 292.

The Court in Reynolds v. Shaver, supra, quoting Tiedeman on Real Property, sec. 858, says: “If a deed purports to convey in terms the right, title, and interest of the grantor to the land described, instead of conveying in terms the land itself, a general covenant of warranty will be limited to that right or interest, and will not be broken by the enforcement of a paramount title outstanding against the grantor at the time of the conveyance.” To the same effect is Allison v. Thomas, supra, where it is said: “It has been uniformly held that a conveyance of the right, title, and interest of the grantor vests in the purchaser only what the grantor himself could claim, and the covenants in such deed, if there were any, were limited to the estate described.” Coe v. Persons Unknown, 43 Me., 432; Blanchard v. Brooks, supra; Brown v. Jackson, 3 Wheat., 449; Adams v. Cuddy, 13 Pick., 460; 25 Am. Dec., 330; Allen v. Holton, supra; Sweet v. Brown, supra; Pike v. Galvin, 29 Me., 183.

The jury, in passing upon the first and second issues, as to the fraud, have virtually found as a fact that the parties intended that *451 tbe “right, title, and interest” should pass, and it would be strange to hold, in opposition to that verdict, that the plaintiff has acquired a greater interest than the one which the parties intended should be conveyed by the deed, the latter clearly being the only interest protected by the covenant. We have shown that the legal construction accords with the actual intention as found by the jury.

But we are not deciding as to the scope of any covenant of warranty other than the particular one in the Barringer deed, and now under construction. Whether the eases we have cited were correctly decided it is not necessary for us to say. They were cited as showing how very far the courts have gone in the direction of restricting a warranty to the estate granted by the deed. We are simply confining ourselves to the question before-us and the language of the deeds. The warranty here is limited by its very terms to the estate granted, as the draftsman was careful in writing the covenant to restrict its operation “to the said- interest granted,” which means, of course, theretofore granted in the deed.

The other exceptions and positions need not be specially considered, as our ruling disposes of them all. We may properly add that the questions were ably and learnedly presented by both sides.

The case was correctly tried, and the exceptions are overruled.

No error.