Sugg v. Town of Greenville, 169 N.C. 606 (1915)

Oct. 13, 1915 · Supreme Court of North Carolina

169 N.C. 606

B. B. SUGG and MINNIE O. SUGG v. TOWN OF GREENVILLE.

(Filed 13 October, 1915.)

1. Deeds and Conveyances — Boundaries—Trials—Questions of law — Questions for Jury.

What is the boundary of a tract of land is a question of law in construing a conveyance thereof; but the location of the boundary is a question of fact.

2. Deeds and Conveyances — Municipal Corporations — Streets—Dedication— Acceptance.

The acceptance of land offered by the private owner thereof for street purposes is in the discretion of the proper municipal authorities, and it is necessary to be had before such dedication can become effectual and binding, though it may be either express or implied.

3. Same — Discretionary Powers — Width of Streets.

The proper municipal authorities in extending a street of a city or town are vested with the discretionary power to determine the width of the street as thus extended, and there is no requirement that the width of the street as extended shall be the same width or conform to the lateral lines of the original street, or those of its further extension.

4. Deeds and Conveyances — Descriptions—Boundaries—Ambiguity—Trials— Questions for Jury.

Where a conveyance of lands calls for the eastern line of a certain street of a town, extended through its intersection with P Street, and there is conflicting evidence as to whether the physical or actual boundary had been established and was used at the time and was a more western line than that of the theoretical extension, had it been made on a straight line through P Street, the locus in quo lying below the street, it raises a question for the jury to decide as to which of the two lines the parties intended when the conveyance was made, when the language of the conveyance leaves the matter in doubt. '

5. Deeds and Conveyances — Interpretation—Meaningless Words.

Where a street is called for as a boundary to a tract of land conveyed, and the location of the eastern line of the street is left in doubt, and it further appears that another call in the description is for the street “extended” or thence with the street extended through its intersection with P Street, the theoretical extension of the street through P Street in a straight line on that side thereof will not necessarily control, there being evidence tending to establish a different line actually adopted and used by the municipality, and under the facts in this case it is held that the words “through its intersection with P Street” should be read as if written “to” the said intersection, as that was clearly meant.

6. Deeds and Conveyances — Interpretation—Former Deeds — References—Intent — Evidence.

Where the description in a conveyance of lands calls for one of its boundaries as a certain street, the line of which is left uncertain, and reference is made therein to a prior conveyance in the chain of title, the courts in construing the deed will consider it in its entirety, and givé reasonable effect to all its parts, the circumstances surrounding the parties at the time, and other relevant matters and where the reference to the former deed sheds light upon the intention of the parties, it will be considered in interpreting the deed in question in order to ascertain this intent.,

7. Municipal Corporations — Filing Claims — Unliquidated Damages — Torts— Interpretation of Statutes.

Revisal, section 1384, requiring claimants against a city or town to file tlieir claims with the proper municipal authorities, has no application to actions ex contractu, where the damages are unliquidated, nor to torts.

8. Deeds and Conveyances — Actions—Grantor and Grantee — Parties.

Where a grantor and his grantee bring an action against a municipality to recover damages for the unlawful appropriation of land for street purposes, if the former has retained title to the locus in quo in himself, he would have the right of independent or separate action to recover it, and if otherwise, the latter may maintain an independent or separate action for it, and in either event the one would not be a necessary party to the other’s action.

9. Same — Mutual Mistake — -Pleadings—Amendments.

The grantor is a necessary party to the grantee’s action against another to recover lands when the latter claims that the locus in quo was intended to be included in the conveyance to him and was omitted by mutual mistake, and asks for a correction and for a recovery of the land in that aspect; and in this case it is held that the grantee may apply for leave of the court to amend his complaint, so as to make the proper allegations of mistake so that the deed may be reformed.

Appeal by plaintiffs from Connor, J., at tbe April Term, 1915, of Pitt.

Special proceeding, begun before tbe clerk for tbe assessment of damages for taking land to be used as a street of tbe town, wbicb was appealed by defendant to tbe Superior Court. Tbe deed from Minnie 0. Sugg to ber eoplaintiff, B. B. Sugg, describes tbe western line of tbe land conveyed to tbe latter as “tbence with Elizabeth (Street) extended, through its intersection with Fifth Street,” and tbe question is, where is this line? Tbe defendant contended that it meant tbe eastern line of Elizabeth Street, if extended tbe width of. that street north of Fifth Street, wbicb is 49 feet, or a theoretical extension of that street, whether actually laid out south of Fifth Street or not, and tbe court below seems to have taken that view. This would fix tbe eastern line of Elizabeth Street and the western line of plaintiff’s lot below Fifth Street, at C, D, as shown on tbe official map, and if this be tbe line, tbe ruling was correct, and tbe plaintiff cannot recover.

Tbe defendant also contends, and there was some evidence to show that the street bad been actually opened to that line. Tbe plaintiff, however, contends and offered much testimony to show that Elizabeth Street bad been actually laid out by tbe defendant below Fifth Street, as represented by tbe letters A, B, E, F, on tbe map, and was used by tbe public, and fully recognized by tbe defendant as tbe only extension of Elizabeth Street south of Fifth Street, and that, as thus laid out, tbe western line of plaintiff’s land would be at A, B, as shown on tbe map, or tbe eastern line of tbe Wiley Yines land, and that tbe call of the deed above mentioned should be extended to that line, as it is the line intended by the parties to the deed as the western line of the land conveyed.

Tbe jury returned the following verdict:

1. "Was the plaintiff the owner of that portion of Elizabeth Street lying on the western line of his lot described in the complaint, 25 feet wide and 160 feet long, as alleged? Answer: “No.”

2. If so, what damages is plaintiff entitled to recover of defendant on account of the taking of the said lot for a part of Elizabeth Street? Answer: “$500.”

Tbe court instructed tbe jury to answer tbe first issue “No,” and tbat tbey would not answer tbe second issue. As tbis was tbe direction of a verdict, we need only set out some of tbe testimony favorable to tbe plaintiff’s contention. Tbe deed of Minnie Sugg to B. B. Sugg, dated 1 September, 1910, after describing tbe land conveyed, adds these words to tbe description, “being tbe westwardly portion of tbe lot conveyed by T. J. Jarvis, commissioner, to Minnie 0. Exum (now Minnie 0. Sugg). Tbe Jarvis deed, dated September, 1894, conveys tbe land west of tbe A. C. L. E. E. (formerly Wilmington and Weldon Eail-road), and “on tbe south side of Fifth Street and adjoining tbe lot of Eeuben Adams, tbe lots of Margaret Miller and others.” Tbe deed of J. W. Yines to tbe town of Greenville, dated 13 January, 1904, conveys land of tbe following description: “Beginning at an iron stake on tbe south side of Fifth Street on tbe river road, tbe point at which tbe western line of Elizabeth Street as originally laid would intersect tbe line of said Yines, and runs tbe course of said Elizabeth Street south 14 degrees and 30 minutes west about one hundred and forty feet to Del-pbia Wooten’s line, then with her line and tbe Henry Sheppard line (now owned by said town) an easterly direction to J. L. Sugg’s southwestern corner, then with said Sugg’s western line a northerly direction about one hundred and sixty-one feet to bis northwest corner in said street or road, and then with said street or road to tbe beginning. Said piece or parcel of land hereby conveyed is for' tbe continuation of Elizabeth Street.” Tbis deed recognizes tbe line as claimed by plaintiffs.

B. B. Sugg, one of tbe plaintiffs, testified:

“I am tbe Sugg mentioned in tbe deed from Minnie 0. Sugg to B. B. Sugg, and I was living in Greenville at tbe time. It was 1 September, 1910. Minnie 0. Sugg was tbe wife of J. L. Sugg, and J. L. Sugg was my uncle. Minnie 0. Sugg prior to her marriage was Minnie 0. Exum, referred to in one of tbe deeds introduced in evidence. At tbe time tbe deed was executed I was living on tbe property, a part of which I purchased at tbe time. When I purchased tbe lot from Minnie O. Sugg I knew where tbe Wiley Yines lot was; it was just west of tbe Sugg property, as indicated on the map. I saw tbe property indicated between 'CD’ and 'AB’ several times a day. At tbe date of my purchase of tbe property tbe land lying within tbe black line was opened as a part of Elizabeth Street, tbat is, tbe strip purchased by tbe town from Wiley Yines; it was purchased, opened, and used as tbe street connecting Elizabeth Street and Bonner’s Lane.. In driving from Fifth Street to Bonner’s Lane you will partly drive over tbe Wiley Yines strip and partly on tbis side, but mostly on tbe Wiley Yines property which tbe town purchased. Tbe strip indicated as lying between 'AB’ and 'CD’ was never opened or used by tbe public as a street, but my uncle did drive over it before be died to reach bis stables, wbicb were in tbe rear of tbe property from Eiftb Street. I never knew tbe town intended taking my property for a street until several months after I bad purchased it, and I did not know then that they intended taking it until they bad put thirty or forty bands to work out there digging it down. I protested at tbe time and was then asked permission by tbe town to be allowed to go ahead, but refused. The town jrarchased ’the property indicated on tbe map between lines £AB’ and £EE’ from Wiley Vines in 1904. My western line is indicated by letters £AB.’ My «line is tbe old line between Sugg’s and Wiley Vines’ land, and it is evidenced by iron stakes. Tbe Sugg line called for in tbe deed from Wiley Vines to the town of Greenville is my line indicated on tbe map by letters £AB.’ When I purchased tbe property, tbe strip tbe town bought from Wiley Vines was opened and used by tbe public. When tbe town bands were cutting down tbe property they went over on tbe Sheppard lot some and dug in tbe back of my line also. They have left an embankment in tbe rear of my property of six and one-half feet that it would be impossible to drive over. I gave in my property for taxation at tbe same as I have always' given it in since I purchased it, and although I considered it damaged considerably by tbe town’s action, I knew that I bad no authority to reduce its assessed taxable valuation. I paid $1,150 for tbe property in 1910 and I purchased it from my aunt by marriage, with whom I was living at tbe time. It fronts on Fifth Street, and all" property in that section of tbe town has certainly quadrupled in value within tbe last four years. Since tbe town has opened tbe street through tbe property purchased from Wiley Vines you can drive from Eiftb Street through by Bonner’s Lane to tbe Atlantic Coast Line depot, but it is very difficult driving. There has been passing from Eiftb Street to Bonner’s Lane over this property ever since the town purchased from Vines and opened tbe street, but my property has never been in general use by tbe public, and such passing was only by permission, and any use of it was only permissive. Several years ago there was a fence clear across that property-and tbe Wiley Vine.s property, running from east to west, and when people passed through it bad to be taken down and was often left down, wbicb fact I remember annoyed my uncle very much. Tbe remnants of tbe fence are there now. Shortly after this fence was moved Mr. Shepjiard sold bis lot just back of mine to the town for tbe purpose of opening a street. That deed calls for my line. Tbe fence was tom down before I bought tbe property and there was some permissive passing that I knew of when I took tbe deed, but tbe town never undertook to take my property for public use as a street until about two and a half years ago. They bad prior to this time purchased tbe Vines and tbe Sheppard lots wbicb connect Fifth Street and Bonner’s Lane, and this was the property -that the passing was supposed to be through. I do not know, of my own knowledge, what took place prior to 1909, for I only came here, during that year. When I bought my property my aunt reserved a driveway back of my lot so that her wood pile in the rear of her property could be reached from Fifth Street or from Elizabeth Street extended. ' However, this driveway has never been used, and although the deed reserved the right of use, the property was still to be mine. If the town had not taken twenty-six feet of my property I would have enough frontage on Fifth Street for two lots, but as it is, I will not have enough frontage left there to make two lots large enough.”

Wiley Yines, witness for the plaintiffs, testified:

“I own property on Fifth Street; it is located on the Tarboro road or on the south of Fifth Street west of Elizabeth Street extended. I bought the property from Mr. Oscar Hooker. I sold a strip of land to the town of Greenville, but before I sold this property I was joined on the east by the Sugg property; an old fence stood on the line between us and an old spring was in there somewhere near the line on my side. I knew where the line between us originally ran, and I put iron stakes on the line or as near to it as I could come. I showed Mr. Dresbach the stake that I set when he was up there making the survey. My deed calls for the Sugg property, and until I sold it to the town my property joined the Sugg property on the east. The deed I gave the town of Greenville calls for the Sugg line. The property I sold the town is shown on the map as enclosed in black lines. It was several years after I sold to the town before I noticed any cutting or grading on the property. I do not remember just how long. There was no street opening from Fifth Street to Bonner’s Lane, but people went across there as a near cut. The spring I referred to was two or three or four feet from the line, out in the street as it now stands. The driving was on the east side of the spring; I do not know whether the driving was on Mr. Sugg’s side or mine. Before the town bought my property and opened the street it was grown up in reeds and briars. There used to be an old ditch that is now filled up; it was located on my side of the line.’.’

Lance "Wooten, witness for the plaintiffs, testified:

“I- live on Elizabeth Street, as it is now opened. I live up there at Delphia Wooten’s. I built there in 1901 myself and I know the locality. I remember when I moved up there, 1901, there was a .fence across Mr. Sugg’s property. I don’t know how long it remained there, but I remember sometimes when I would go in it would be down, and when I would come out it would be up. There used to be a wall on the line between Wiley Yines’ property and Mr. Sugg’s property, but after Wiley sold to the town I think he moved it. I have seen two iron stakes up there; they were right behind the wall’, and when the wall was moved the stakes were left there. I have not seen the stakes lately and no one has told me anything about them. I think the property was cut down by the town in 1911; it was cut right back to my house, about as deep as my house.”

Jack Pitt, witness for the plaintiffs, testified:

“I have been living here about 60 years; been working there about 15 years. I used to work for Mr. Sugg and I know where the fence was between Mr. Sugg and Wiley Vines. It was right straight across from where there was a cedar behind Wiley Vines’ house. There was a stump there and a wife fence. I don’t know who kept up the fence, but I put it up several times for Mr. Sugg when people would leave it down. After the town bought from Wiley Vines, people drove through his side regularly. I remember where the line was; there were old posts there. He sold to the town up to the line and it made a good wide little street. The people drove over there and used it as a street after the town bought it from Wiley. I remember when they got the property graded out, but I don’t know how long it has been. It was since Mr. B. B. Sugg bought.”

W. C. Dresbaeh, witness for the plaintiffs, testified:

“The heavy black lines drawn on the map in an ell-shape just across Fifth Street from the Sugg property is the concrete wall to Mr. C. S. Carr’s front yard, and it is impossible to extend Elizabeth Street to Bonner’s Lane without taking in this property.” Q. Has it been extended the full width? 'Defendant objects; sustained; plaintiffs except.

There was testimony given by the defendant’s witnesses which tended to contradict that of the plaintiffs, but it need not be set out. Judgment was entered upon the verdict for the defendant and an appeal taken by the plaintiffs, after reserving their exceptions.

D. M. Glorie and Harding & Pierce for plaintiffs.

F. (?. James & Son and Jarvis & Wooten for defendant.

Walker, J.,

after stating the case: We have often said that what is the boundary of a tract of land is a question of law, but where it is, we have as often held to be a question of fact. The call in the deed of Minnie 0. Sugg to B. B. Sugg, “thence with Elizabeth extended through its intersection with Fifth Street” does not necessarily mean that the extension must be the full width of the northern or original part of the street, as there is evidence in this case, and strong evidence, too, that Elizabeth Street had been extended below Fifth Street by the town, but not the same width as above, and it is not infrequently the case that the extension of a street beyond its intersection with another street is not of.tbe same width as that portion of the street that is extended or lengthened, and sometimes the extension does not have lines which are coincident with or opposite to those of the other part of the same street, as offsets are sometimes to be found. But, however this may be, the deed, and the evidence taken in connection with the physical facts, show that the parties may have intended that the western line of the land conveyed to plaintiff, B. B. Sugg, should not be at CD, as shown on the map and as contended by the defendant, but at AB, as shown on the map and as contended by the plaintiff. Did the parties mean the lines of Elizabeth Street as theoretically or mathematically extended or as actually extended at the time?

The town was not bound to accept the land as a part of its street, even though the parties may have intended by the deed to have that much space open, as a dedication for the street, to await the acceptance of the town, because the town has the right to decide where its streets shall be and how long and how wide they shall be. Kennedy v. Williams, 87 N. C., 6. We do not think the call was so definite, precise and unambiguous as to leave no room for fair opinion as to what was meant and to exclude all construction of the deed. If it was meant by the parties to establish the line at CD, then that, in law, is the line regardless of the action of the town; but it was competent for the jury, upon all the evidence, to consider and say whether that was meant, or whether, on the contrary, the parties intended to refer only to the eastern line of Elizabeth Street below Fifth Street as actually established by the town. A reading of the deed would, at first sight, and without any knowledge of or attention to the facts, seem to favor the defendant's view; but when they consider the pertinent evidence, a very different conclusion might be reached by the jury.

There is this to be further said, that the parties may have meant Elizabeth Street as extended, and not merely extended with the identical lines of the original street. There is another view, of which the deed and other evidence are susceptible, and one which the jury may take, if the case is submitted to them. The line is not bound to make the street of the same width on the south as on its north side. What shall be its conformation and location is a matter committed by the law entirely to the judgment and sound discretion of the public authorities having the matter in charge, and if they have already acted, at the time a deed is made, and delineated the street, so that it has become a fixed and established highway of the town, there is no reason why the parties may not be considered to have written their deed with reference to this well known physical fact, and that, when they called for Elizabeth Street extended, they meant as already extended by the town, rather than that the street should be considered as theoretically extended on the same side lines as those of the original street. Whether they intended a theoretical or the practical extension of the line was eminently a question for the jury to determine. In this connection it may be well to state several rules laid down in the books and sanctioned by the authorities:

■ 1. Although the court should decide who holds title where it rests upon the legal effect of the deed, yet the court may instruct the jury that the legal title vests in a certain person or not, and leave it to them to decide as a fact who is entitled, where the identity of such person is in issue. This would apply equally to land, where the question of identity is involved.

2. 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.

3. Where the words used in the description in a deed are .uncertain or ambiguous and the parties have by their acts given a practical construction thereto, the construction so put upon the deed by them may be resorted to, to aid in ascertaining their intention.

4. The entire description in a deed should be considered in determining the identity of the land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that will aid the description. Every part of a deed ought, if possible, to take effect and every word to operate.

5. If recitals in a deed are inconsistent or repugnant, the first recital does not necessarily prevail over the latter, but the whole language of the deed is to be construed together in order that the true construction may be ascertained. In such a case the court will look into the surrounding facts and will adopt that construction which is the most definite and certain and which will carry out the evident intention of the parties. And if the land conveyed is sufficiently identified by certain parts of the description, an impossible or senseless course should be disregarded, and the deed sustained.

6. Where the description of the property intended to be conveyed is ambiguous, the identity of such property must be gathered from the intention of the parties as shown by the instrument itself and the accompanying circumstances, such as those surrounding and connected with the parties and the land at the time. , Words may, if necessary, be qualified by intendment and particular clauses and provisions qualified, transferred, or rejected in order to ascertain the intention.

7. Another instrument may, in some cases, be construed with a deed as a part of the same transaction for the purpose of ■ determining the identity of the property conveyed. And a recorded plat of lots may be construed with a deed in order to determine the dimensions of the property, or a town plan may be referred to.

8. Tbe description of tbe property conveyed by a deed should be construed against tbe grantor and in tbe manner most beneficial to tbe grantee.

9. In order to ascertain tbe intention of tbe parties in respect to tbe property conveyed, reference may be bad to tbe state of facts as tbey existed wben tbe instrument was made and to which tbe parties may bo presumed to have bad reference.

10. A description of tbe property as occupied by tbe grantor may control other words in tbe description in determining tñe identity of tbe property conveyed. 13 Gyc., pp. 626, 627, 628, 630, and cases in tbe notes.

Tbe full description in tbe plaintiff’s deed is as follows: “Situate in tbe town of Greenville, Pitt County, North Carolina, on tbe southerly side of Fifth Street, and eastward side of Elizabeth Street and beginning at an iron stake on Fifth Street in said town of Greenville, located on tbe southern edge of Fifth Street, between tbe A. C. L. Railroad and Elizabeth Street and runs thence a southerly direction a straight line to a stake in tbe back line of tbe lot of Minnie 0. Sugg; then a westwardly direction with tbe back line of Minnie O. Sugg lot to Elizabeth Street extended; thence with Elizabeth extended through its intersection with Fifth Street; thence with Fifth Street an eastwardly direction to the beginning, an iron stake, and being tbe westwardly portion of tbe lot conveyed by T. J. Jarvis, commissioner, to Minnie O. ■ Exum by deed dated 19 September, 1894, and recorded in tbe register’s office in Pitt County in Book S-5, page 378; Minnie 0. Exum mentioned in said deed being tbe same person as Minnie 0. Sugg, tbe grantor in this deed. Minnie 0. Sugg, tbe grantor in this deed, hereby reserves to herself, her heirs and assigns tbe right of ingress and egress for tbe purpose of a driveway from Elizabeth Street extended over and across tbe lot herein conveyed along tbe back line of tbe same to tbe lot whereon tbe said Minnie 0. Sugg now resides, adjoining tbe lot herein conveyed.”

The words “through its intersection” were evidently intended for “to its intersection,” for otherwise tbey would be meaningless. We have nothing, then, except tbe words “Elizabeth Street extended,” but extended bow: according to and with tbe lines it has north of Fifth Street, or extended as was done by tbe town? Tbe word “extended” is not, of itself, sufficient to confine tbe description to tbe lines north of Fifth Street merely elongated, or in other words to tbe width at that part of tbe street, for standing by itself it may mean a theoretical extension, or one that is actual, which is sometimes called’a practical one, that is, one which was made on tbe ground at tbe time of this conveyance. ' If there bad been none such, it might well be argued that tbe call should be restricted to a theoretical location of tbe street’s eastern line that would exactly correspond with the lines north of Fifth Street.

If we are governed by tbe rules adopted for. our guidance and wbicb are set out above, we must look at tbe description as a whole, giving effect to every material part of it. Tbe very opening sentence is “situate on tbe southerly side of Fifth Street and the eastward side of Elizabeth Street ” and the latter words, wbicb we have italicized, would surely call for inquiry as to where tbe east side of tbe street is, for the word “extended” is not used, in this connection. We may, under those rules, as we have seen, take into consideration that Mrs. Sugg has in tbe deed expressed the intention clearly to pass to B. B. Sugg “tbe westwardly portion of the lot theretofore conveyed by T. J. Jarvis, commissioner, to her,” wbicb was all tbe land west of tbe line GH, and extending to tbe eastern line of Wiley Vines, as she owned that land and acquired title to it under tbe .Jarvis deed. We do not mean to say that this part of tbe description is controlling, but that it may be taken into consideration in order to determine what she intended to convey, as gathered from tbe entire deed.

It is said in 13 Cyc., 637: “Tbe question as to what property passes by a deed may be controlled by a general clause conveying all of tbe grantor’s property. Tbe construction of a description with such a clause therein is dependent upon tbe intention of tbe parties, and where it appears from tbe entire deed that it was tbe manifest intention to convey all of tbe property of tbe grantor a construction consistent therewith will be given. In construing a clause of this character tbe rule applies that tbe language is to be construed against tbe grantor.”

It is true that a particular description, wbicb is clear and explicit and completely identifies tbe property intended to be conveyed, will not be varied or enlarged by a more general and less definite one, as, in such a case, tbe former will be considered as expressing more certainly and reliably tbe intent of tbe parties rather than tbe latter, but, notwithstanding.this rule of construction, a general clause or recital in a deed, wbicb broadens tbe terms of tbe grant, will not be altogether excluded as something that sheds no light on tbe meaning, though it does not override tbe other more definite call. 13 Cyc., 631 (e).

This doctrine wbicb requires us to look at tbe whole deed and to give some effect, at least, to all of its several parts, was clearly stated, with apt citation of authority by Justice Hoke in Railroad Co. v. Railroad Co., 147 N. C., at p. 382: “It is well recognized that tbe object of all rules of interpretation is to arrive at tbe intention of tbe parties as expressed in tbe contract, and that in written contracts wbicb permit of construction this intent is to be gathered from a perusal of tbe entire instrument. In Paige on Contracts, sec. 1112, we find it stated: ‘Since tbe object of construction is to ascertain tbe intent of tbe parties, tbe contract must be considered as an entirety. Tbe problem is not what the separate .parts mean, but what the contract means when considered as a whole.’ And while in arriving at this intent words are’ prima facie to be given their ordinary meaning, this rule does not obtain when the ‘context or admissible evidence shows that another meaning was intended.’ Paige, sec. 1105. And, further, in section 1106, it is said that the context and subject-matter may affect the meaning of the words of a contract, especially if in connection with the subject-matter the ordinary meaning of the term would give an absurd result. Again, as said by Woods, J., in Merriam v. United States, 107 U. S., 441: “In such contracts it is a fundamental rule of construction that the courts may look to not only the language employed, but to the subject-matter and surrounding circumstances, and may avail themselves of the same light which the parties possessed when the contract was made.’ And in Beach on Modern Law Contracts, see. 702, the author says: ‘To ascertain the intention, regard must be had to the nature of the instrument itself, the condition of the parties executing it, and the objects they had in view. The words employed, if capable of more than one meaning, are to be given that meaning which it is apparent the parties intended them to have.’ ” It is then added that parol testimony was properly received to show the attendant facts and circumstances for the purpose of a proper construction of the lease, citing Ivey v. Cotton Mills, 143 N. C., 189, and Ward v. Gay, 137 N. C., 397. Our conclusion is that the description in the deed is sufficiently indefinite to raise an issue for the jury to decide, under the guidance of the court lipón the law, as to what the parties intended.

It was stated on the argument that the court ordered a nonsuit as to the feme plaintiff, because she had not filed her claim with .the proper municipal authorities as required by Eevisal, sec. 1384. This section, which corresponds with section 757 of the Code of 1883, has been construed by this Court in several cases and held not to apply to actions ex contractu where the damages are unliquidated, nor to torts. Shields v. Durham, 118 N. C., 450; Frisbee v. Marshall, 119 N. C., 570; Sheldon v. Asheville, ibid., 606; Nicholson v. Commissioners, 121 N. C., 27, and finally in Neal v. Marion, 126 N. C., 412.

We do not see why she is a necessary party. If she did not, by her deed, convey this land to the plaintiff, but has retained the title in herself, her right and her action to recover the land, or damages for its taking, would be separate and distinct from his claim, and her present coplaintiff would have no interest therein, and if she did convey it, her presence is not required to vindicate his rights under the deed, as she had parted with the title to him. But had the plaintiff, B. B. Sugg, alleged that, if the land did not pass by the deed, it was intended that it should, and the description, if it was omitted by a mutual mistake of the two plaintiffs in tbis action, and, upon this allegation, had asked for a correction, as he may yet do, with the permission of the court, then she would be a proper, if not. a necessary party. On proper application to the court below, the plaintiff will, no doubt, be allowed to amend the complaint, so as to make the proper allegation in regard to the mistake, if there was one, and in the event that permission to amend is granted, Mrs. Sugg would be made a party, plaintiff or defendant, as the parties may be advised. If this is done and the jury decide, under the instructions of the court, that the deed did not convey the land, they could then pass upon the issue as to the mistake, and say whether or not the effect of the deed, as they thus find it to be, was produced contrary to the intentions of the parties, and that, while it was their purpose to convey the land, they had failed to insert it in the deed by their mistake or the inadvertence of the draftsman acting under their instructions.

It follows from what we have said that there was error as to the plaintiff B. B. Sugg, for which there must be a new trial. We do not think that Mrs. Sugg has appealed, and she tendered no separate case on appeal.

New trial.