Dismukes v. Wright, 20 N.C. 206, 3 Dev. & Bat. 206 (1839)

June 1839 · Supreme Court of North Carolina

20 N.C. 206, 3 Dev. & Bat. 206

RICHARD T. DISMUKES vs. JOHN WRIGHT.

June, 1839

Where a debtor conveyed property in trust to secure the payment of certain debts, and among others “a notefor $500, payable to J. W., and by him transferred to R. D.” the trustee, and proceeded to direct that “ the balance of the money, if any, after paying the debts in this deed, the said R. D.is to pay” to the grantor, and the trustee sold the property and received the proceeds sufficient to pay the debts mentioned in the deed in trust, it was held that in a suit by R. D. against J. W. as endorser upon a note for $430 made by the debtor, the j ury were not at liberty to infer, without any extrinsic evidence, that there was hut one note to which these persons were parties, and that that was mis-described in the deed by mistake; and it was held further that no evidence could be received at law, to shew the mistake.

After the new trial granted in this canse, at June Term, 1838, (see 3 Dev. & Bat. Rep. 78,) it came on to be tried again at Davie, on the last circuit before his Honor Judge Nash, when the facts appeared to be as follows: One John Belt made his single bill to the defendant for $430, who endorsed it to the plaintiff; and this action was brought to recover the amount from the endorser. Plea — payment. After - the plaintiff became the holder, Belt, the maker, executed to him a deed transferring a large amount of property, to be by him sold, and the proceeds applied in paying Beit’s creditors, according to their priorities, as mentioned in the deed. The plaintiff sold the property and collected the money. The first debt directed in the deed in trust to be paid, was “ a note for five hundred dollars, payable to John Wright, and by him transferred to Richard Dismukes.” After-naming a number of other debts, and,the persons to whom they were due, the deed closes thus: “and the balance of the money, if any, alter paying the debts mentioned in this deed, the said t Richard Dismukes is to pay to the said John Belt.” There was no extrinsic evidence offered to shew that the $500 note, mentioned in the deed, was, in truth, the note now sued on, and that there had been a mistake in describing it; but the defendant averred that there was but one note, viz. the one now sued on, and that it was intended by the parties to be covered by the deed, and that it was described in said deed as being for the sum of $500 by mistake. The court instructed the jury that there was no evidence to establish this allegation. There was a verdict and judgment for the plaintiff, and the defendant appealed.

in the con-died^onth°e temion of ¡^¡f^osst-the sec-«¡at this iS ¿eascerain-by the that is, from p^of it toge-*u' in°am^se¿ns c'ann<,.t be from'mbit-Sfgh founded up-estdegreeof

Boy den for the defendant.

D. F. Caldwell for the plaintiff.

Daniel, Judge,

after stating the case as above, proceeded: It has been'contended here, with much earnestness, that the Judge erred in this instruction; for, that the jury might legitimately have inferred that there was but one note, from the concluding clause of the deed, the situation of the parties, and the failure of the plaintiff to shew that there were two notes; and that the jury might have inferred that the one now sued on, was the note intended by the parties to be included in the deed. We think that there was no error in the instruction; for certainly the deed, per se, shews no mistake, and no extrinsic evidence could have been received at law to shew a mistake. The deed transfers property to the plaintiff in trust, to pay a note particularly described as being for •$500. There is no ambiguity or uncertainty in the description. Can the defendant, at law, be permitted to substitute another note of $430, and thus contradict the deed? In the construction of deeds, the first rule is, that the intention of the parties is, if possible, to be supported; and the second rule is, that this intention is to be ascertained by the deed self; that is, from all parts of it taken together. In general, no expression can be contradicted or explained by extrinsic evidence; and the intention collected from, the four corners the deed, is to govern the construction ot every passage m it. Touch. 87. Burton on Real Property, 164, 165. The clause in the deed, directing the trustee (who was holder of bill,) to pay the balance of the money, if any, to Belt, the maker, and the man primarily liable on it, shews only that this •note was not thereby secured. But omissions cannot be supplied from arbitrary conjecture, though founded upon the highest degree of probability. Chapman vs. Brown, 3 Bur. Rep. 1627. 3 Atk. 136. Andrew vs. Ward, 1 Russ. Rep. 260, 279. The deed did not evidence, in any way in which we legally can take it, that the plaintiff had received ty and motley in trust to pay this bill of $430 and interest The judgment must be affirmed.

Per Curiam. Judgment affirmed.