Miller v. Lucas, 5 N.C. 228, 1 Mur. 228 (1809)

July 1809 · Supreme Court of North Carolina

5 N.C. 228, 1 Mur. 228

Miller and Roberts v. Lucas.

From Randolph.

The words in a deed of trust, “ to pay, satisfy and detain to themselves the sum of £500, together with all costs which shall arise against them for their being security for A, for several different sums of money, also being common and special bail in several.^uits,” do not ex. tend to securityships entered into subsequent to tire execution of the deed : and paro1 evidence is not admissible» to prove that the parties intended the deed to extend to subsequent securityships.

This was an action of detinue for certain negro slaves in the possession of Defendant, to which the Plaintiffs claimed title under a deed of trust, executed to them by Wiiliarft Roberts, on the 27th day of May, in the year 1769, to indemnify them as to sundry debts for which they were bound as Iris securities. The principal question in the case arose upon the construction of this deed; whether it extended to future securityships, or was confined to securityships existing at the time of its execution. For on the 10th day of September, 1772, Y> iliiam Roberts, with the Plaintiffs as his securities, executed a bond to William Cunningham & Co. in fire penal sum. of three hundred pounds, Virginia currency, conditioned for the payment of one hundred and fifty pounds, like money, on or before the first day of March, 1773. William Cunningham being a British merchant, and the late revolutionary war coming on shortly, after the bond became payable, the debt remained unpaid until the year 1803, when suit was instituted on the bond against Miller, one of the Plaintiffs, in the Circuit Court of the United States for the District of.North-Carolina, and judgment obtained at December term, 1803. Miller discharged the judgment, and sought to indemnify himself out of the property conveyed to him and Samuel Roberts, by the deed of trust aforesaid; Lucas, the Defendant, being in possession of two negroes, the increase of one of them named in the deed. This suit was brought to recover the possession of them.

The deed set forth, “ that William Roberts had bargained, sold, &c. to Haaman Miller and Samuel Roberts, their heirs and assigns forever, two slaves, to wit: Peter, &c. together with ail the stock of horses, cattle, hogs, household goods, and all other estate whatsoever to the said William Roberts belonging,’ to have and to hold the said slaves, &c. upon special trust and confidence, and to the uses, intents and purposes following, that is to say : that -the said Haaman Miller and Samuel Roberts shall, at any time, and at all times hereafter, possess and seise themselves of the aforesaid slaves, and other estate before mentioned, and sell and dispose of them for ready money, for the best price or prices that can or may begot for the same, or any or every part thereof j and out of the money arising from such sale, pay, satisfy, and detain to themselves, the sum of five hundred pounds, current money of Virginia, together with all costs that shall hereafter arise against the said Haaman Miller and Samuel Roberts, on account of their being security for the aforesaid William Roberts for several different sums of money, as also being common bail and special bail in several suits in the County Court and General Court against said William Roberts, until receipts of the money paid ; and also to reimburse themselves all reasonable expences in recording the present deed, or. making* the sale as aforesaid.” It was contended on behalf of the Defendant, that the debt to Cunningham & Co. being* contracted several years subsequent to the execution of this deed, was not embraced by it 5 and the payment of this debt by Miller gave him no right to sue for and recover the property conveyed to him and Samuel Roberts by thé deed.

The Plaintiffs offered in evidence the deposition of Francis Arnold, to prove that it was the intention of the parties, at the time the deed was executed, that it should extend to securityáhips thereafter to be entered into, and that they had so construed it after its execution.

The case was sent to this Court upon the questions, 1st, Whether the deed is to be construed to extend to sc-curityships entered into by the Plaintiffs in the year 1772, after the making of said deed ? 2dly, If not, can it he so extended by the deposition of Francis Arnold ?

Lowrie, Judge,

delivered the opinion of the Court:

The construction of a deed must be made from the face of it, and no averment or parol evidence can be received to contradict it. When it is proved in a Court of Justice, it is conclusive on the rights of the parties. Although parol evidence may be admitted to explain latent ambiguities in a deed, and in some special cases has been received to explain ambiguities which were potent, yet such evidence is admissible only in cases of evident necessity. The Court will never receive parol evidence to explain away or contradict an explicit agreement in writing. The deed in question does not require the aid of parol evidence to understand it. The words are, “ on account of their being security for, &c.” The Plaintiffs contend, that these words may well be construed to extend to cases where they became securities for William Roberts, subsequent to the date of the deed, and that this construction is supported by the words “ detain to themselves the sum of five hundred pounds, Virginia money, together with all costs that shall hereafter arise.” The several sums for which the Plaintiffs became security were known ; as well the bonds on which William Roberts had not been sued, as those on which he had been sued, and in which suits they 'had become his common and special bail. The whole of those sums being known, a sum certain could be easily fixed on which would be sufficient for their indemnification, and the sum of five hundred pounds was agreed on as sufficient for that purpose: but not with respect to the costs that might afterwards accrue. Hence as to the costs, the words are in the future time, and no specific sum is men- • tioned or agreed on. The participle “ being” is used in expressing that they had become common and special bail in suits in the County and General Courts $ and it is not pretended that they are, or would be entitled to indemnification for becoming common or special bail for William Roberts, subsequent to the execution of the deed. When the deed speaks of the expences of “ recording, &c. and of selling the property,” the expressions used, prove clearly, that the parties were not deficient in language to convey their iileas ; that they were capable of using apt and proper words to embrace all the objects which they had in view. The Court is therefore of opinion that the deed cannot be construed to extend to security, ships entered into subsequent to its execution, and that the deposition of Francis Arnold cannot be received to aid its construction.