Quelch v. Futch, 175 N.C. 694 (1917)

Dec. 22, 1917 · Supreme Court of North Carolina

175 N.C. 694

J. P. QUELCH, Administrator, et al., v. D. K. FUTCH.

(Filed 22 December, 1917.)

1. Deeds and Conveyances — Interpretation—Intent—Reference for Description.

As to the construction of a deed referring to a former deed for description, giving effect to its intent, transposing its parts if necessary, etc., see S. o., 172 N. C., 316.

2. Appeal and Error — Objections and Exceptions — Instructions.

Exception taken to a part of tbe charge to tbe jury wbicb contains botb correct and incorrect instructions will not be considered on appeal.

3. Appeal and Error — Evidence—Harmless Error.

Tbe admission of evidence wbicb is harmless will not be held for reversible error.

4. Evidence — Deceased Persons — Interest.

Testimony of a party interested of transactions or communications with a deceased person is properly excluded under Revisal, sec. 1631.

5. Appeal and Error — Substantial Error — Burden of Proof.

Tbe burden is upon appellant to show substantial error on appeal.

Appeal by defendant from Bond, J., at tbe February Term, 1917, of New HaNover.

Kenan & Wright and McQlammy & Burgwin for plaintiff.

John D. Bellamy & Son, W. P. Gafford, and É. K. Bryan for defendant.

Per Cukiam:

We bave carefully examined tbis case and find tbat there is no reversible error.

Tbis case was before the Court at Fall Term, 1916, 172 N. C., 316. We held at tbat time as follows:

“We bave in tbe deed in question a description by metes and bounds, in which tbe land in controversy is not conveyed, and also a description wbicb refers to another deed duly recorded by book and page wbicb gives a definite description covering tbe land in controversy.

“It must be admitted tbat if tbe first or specific description entirely is eliminated from tbe deed, according to tbe evidence, tbe second or general description is sufficient and covers tbe land described in tbe complaint. It matters not tbat tbe last description follows tbe warranty. Tbe whole deed must be so construed as to give effect to tbe plain intent of tbe grantor, and tbe parts of tbe deed will be transposed if necessary. Triplett v. Williams, 149 N. C., 394; 13 Cyc., 627. Tbe entire description in a deed should be considered in determining tbe identity of tbe land conveyed. Clauses inserted in a deed should be regarded as inserted for a purpose, and should be given a meaning that would aid the description. Every part of a deed ought, if possible, to take effect, and every word to operate. A reference to another deed may control a particular description, for the deed referred to for purposes of description becomes a part of the deed that calls for it. 13 Cyc., 632; Brown v. Ricaud, 107 N. C., 639; Everett v. Thomas, 23 N. C., 252.”

That must stand as the law of this case, and it is the correct principle applicable to the deed which was then construed.

This action was brought to recover two tracts of land. Plaintiff recovered judgment for the tract now in question, and defendant appealed. The defendant recovered the other tract, and plaintiff appealed. We affirmed the judgment. Quelch v. Futch, 174 N. C., 395.

There are numerous exceptions in this appeal, but we do not think any of them requires a reversal of the judgment. In at least one instance an exception is taken to a part of the charge embracing several propositions, one of which is correct in law, and we have held that when this occurs the exception fails. Savings Bank v. Chase, 151 N. C., 108; Bost v. Bost, 87 N. C., 477; Ins. Co. v. Sea, 21 Wallace (U. S.), 158; S. v. Ledford, 133 N. C., 714; R. R. v. Mfg. Co., 169 N. C., 156, 169.

The other exceptions to the charge are without merit.

The .requests for instructions, which were not granted by the court and made a part of its charge to the. jury, were properly refused.

As to the questions of evidence, if the answers of the witness J. T. Kerr were incompetent, which is not admitted, we cannot see that they were more than harmless; and it appears that the witness W. E. Worth was interested in the result of the action, and was, therefore, disqualified as a witness under Revisal, see. 1631. The other exceptions are without any merit.

It appears that the real question in the ease was one of fact, and the jury, under the evidence and instructions of the court, decided the fact in issue against the defendant as to the tract now being considered, and with him as to the other tract. The burden is upon the appellant to show- clearly that there is substantial' error, and he must have been prejudiced by it. This does not appear.

No error.